Do I have to provide this pay differential for my NDMS employees under USERRA? Separation from the service with a dishonorable or bad conduct discharge. .usa-footer .grid-container {padding-left: 30px!important;} If, prior to leaving for military service, an employee knowingly provides clear written notice of an intent not to return to work after military service, the employee waives entitlement to leave-of-absence rights and benefits not based on seniority. HealthCare.gov in Other Languages. Service by members who are ordered to active duty in support of a “critical mission or requirement” of the uniformed services as determined by the Secretary involved – Section 4312 (c) (4) (D). § 38-610.02, Leave of absence and compensation for national disaster medical system employment . If there is a variation in benefits among different types of nonmilitary leaves of absence, the service member is entitled to the most favorable treatment so long as the nonmilitary leave is comparable. It looks like your browser does not have JavaScript enabled. If a person’s health plan coverage would terminate because of an absence due to military service, the person may elect to continue the health plan coverage for up to 24 months after the absence begins or for the period of service (plus the time allowed to apply for reemployment), whichever period is shorter. USERRA Protects the job rights of individuals who voluntarily or involuntarily leave employment positions to undertake military service or certain types of service in the National Disaster Medical System. If submission of a timely application is impossible or unreasonable through no fault of the person, the application must be submitted as soon as possible on the next day when submitting the application becomes possible. 3. (A) In the job the person would have held had the person remained continuously employed, or a position of like seniority status and pay so long as the person is qualified for the job or can become qualified after reasonable efforts by the employer; Section 4313 (a) (2) (A), or. (B) in the job in which the person was employed on the date of the commencement of the service in the uniformed services, only if the person is not qualified to perform the duties of the position referred to in subparagraph (A) after reasonable efforts by the employer to qualify the person. It cannot surrender other rights and benefits that a person would be entitled to under the law, particularly reemployment rights after service. .agency-blurb-container .agency_blurb.background--light { padding: 0; } The employer bears the burden of proving that the person knowingly waived entitlement to the specific rights and benefits. (B) in the position of employment in which the person was employed on the date of the commencement of the service in the uniformed services, or a position of like seniority, status, and pay the duties of which the person is qualified to perform, only if the person is not qualified to perform the duties of a position referred to in subparagraph (A) after reasonable efforts by the employer to qualify the person. Such a position may be a higher or lower position, depending on the circumstances. USERRA also prohibits employers from discriminating against past and present members of the uniformed services, and applicants to the uniformed services. Intermittent employees of the National Disaster Medical System (NDMS) are also considered to be performing "service in the uniformed services" and protected by USERRA when activated to provide assistance in a public health emergency, to be present when there is a risk of a public health emergency, or when participating in authorized training. National Guard –Service in the U.S. Public Health Service Commissioned Corps –Service in the National Disaster Medical System (NDMS) and the National Language Service Corps (NLSC) –An examination to determine fitness for military service Do I have the right to refuse her request for leave of absence to do NDMS duty? Did the employer make reasonable efforts to train or otherwise qualify a returning service member for a position within the organization/company? Section 1002.57 clarifies when service in the National Guard is covered by USERRA, and section 1002.58 addresses service in the commissioned corps of the Public Health Service, a division of the Department of Health and Human Services. as uniformed service in the Public Health Service (PHS), Federal Emergency Management Agency (FEMA), the National Disaster Medical System (NDMS), and, as recently amended, the National Urban Search and Rescue System (NUSRS). Reemployment rights extend to persons who have been absent from a position of employment because of “service in the uniformed services.” “Service in the uniformed services” means the performance of duty on a voluntary or involuntary basis in a uniformed service, including: The ”uniformed services” consist of the following [20 CFR 1002.5 (o)]: This USERRA QuickSeries reference guide is intended primarily for non-Federal employees and employers. #block-googletagmanagerheader .field { padding-bottom:0 !important; } How much time off is an employee entitled to prior to reporting for military/NDMS service? 6. USERRA a pplies to members of the Armed Forces, Reserves, National Guard, and other “Uniformed Services” (including the National Disaster Medical System and … Federal government websites often end in .gov or .mil. USERRA protects the job rights of individuals who voluntarily or involuntarily leave employment positions to undertake military service or certain types of service in the National Disaster Medical System. Service members must, at their request, be permitted to use any vacation leave that had accrued before the beginning of their military service instead of unpaid leave. 2. Before sharing sensitive information, make sure you’re on a federal government site. In connection with USERRA’s health plan provisions, liability for employer contributions and benefits under multi-employer plans is to be allocated by the plan sponsor in such manner as the plan sponsor provides. USERRA Notice. USERRA applies to members of the Armed Services, Reserves, National Guard, and other “Uniformed Services,” including the National Disaster Medical System and the Commissioned Corps of the Public Health Service. Nor will it be applied when service members are involuntarily retained on active duty beyond the expiration of their obligated service date. div#block-eoguidanceviewheader .dol-alerts p {padding: 0;margin: 0;} ol{list-style-type: decimal;} The reemployed person is entitled to any accrued benefits contingent upon employee contributions only to the extent that the person repays the employee contributions. Disasters like Hurricane Sandy, the tornadoes in Joplin, MO, and the flooding in Louisiana have shown that major disasters can overwhelm state, local, tribal and territorial resources. Section 4318 (c). The National Committee for Employer Support of the Guard and Reserve (ESGR) is a Department of Defense agency that provides free USERRA education, consultation and, if necessary, informal mediation services. Section 300hh-11(e). C. Comments Addressing the National Disaster Medical System The Department received several comments from an attorney employed by the Federal Emergency Management Agency (FEMA) regarding the rule’s treatment of the National Disaster Medical System (NDMS). However, a health plan is permitted to impose an exclusion or waiting period for coverage of disabilities determined by the Secretary of Veterans’ Affairs (VA) to be service-connected. The escalator principle requires that each returning service member be reemployed in the position the person would have occupied with reasonable certainty if the person had remained continuously employed, with full seniority. USERRA applies to virtually all employers, regardless of size, including the Federal Government. Active duty (other than for training) by volunteers supporting “operational missions” for which Selected Reservists have been ordered to active duty without their consent – Section 4312 (c) (4) (C). 3. 7. The NDMS, created in 2002 under the Public Health Security and Bioterrorism Preparedness and Response Act of 2002, is a corps of volunteer reservists who perform a variety of disaster-relief services. Section 4312 (e) (2) (A) / 20 CFR 1002.116. must have given written or verbal notice to the civilian employer prior to leaving the job for military/NDMS training or service except when precluded by military/NDMS necessity. Section 4323 (a) (1) / 20 CFR 1002.291-292. 2. The U.S. Department of Labor’s Veterans’ Employment and Training Service (VETS) administers the Uniformed Services Employment and Reemployment Rights Act (USERRA). On the other hand, a right or benefit is not seniority-based if it is compensation for work performed or is made available without regard to length of employment. If those efforts fail, e-mail us at the address below and we'll put you in touch with an ombudsman who is qualified to help and is sympathetic to the needs of both employers and employees. (Exception would be discrimination cases.). testifies, assists or otherwise participates in an investigation or proceeding under the law; or. There is no small business or employer hardship exc ep-tion. Did the employer provide training or retraining and other accommodations to persons with service-connected disabilities? A reemployed person must be treated as not having incurred a break in service with the employer maintaining a pension plan. None of the sources listed above have authority to enforce the law. The law requires employees to provide their employers with advance notice of military service, with some exceptions. A person whose military service lasted 1 to 90 days must be “promptly reemployed” in the following order of priority: 1. A.R.S. Please note: ESGR's ombudsmen handle only employer-employee conflicts involving military/NDMS service. Washington, DC 20210 USERRA also prohibits employers from discriminating against past and present members of the uniformed services, and appli-cants to the uniformed services. Is there a law governing an NDMS member’s right to reemployment rights after his or her completion of NDMS training or federal active service? Also excluded are additional training requirements certified in writing by the Secretary of the service concerned to be necessary for individual professional development. Dropping an individual from the rolls when the individual has been absent without authority for more than three months or is imprisoned by a civilian court. L. 107-188, June 2002). @media only screen and (min-width: 0px){.agency-nav-container.nav-is-open {overflow-y: unset!important;}} Did the employer delay or attempt to defeat a reemployment rights obligation by demanding documentation that did not then exist or was not then readily available? YOUR RIGHTS UNDER USERRA THE UNIFORMED SERVICES EMPLOYMENT AND REEMPLOYMENT RIGHTS ACT USERRA protects the job rights of individuals who voluntarily or involun\ tarily leave employment positions to undertake military service or certain types of service in the National Disaster Medical System. protected by USERRA includes National Guard members activated for state . One of my employees has just notified me that she is a member of the National Disaster Medical System (NDMS), Department of Health and Human Services (HHS). On the other hand, depending on economic circumstances, reorganizations, layoffs, etc., the position could be at a lower level than the one previously held, it could be a different job, or it could conceivably be in layoff status. The person without the superior right is entitled to employment with full seniority in a position that provides similar seniority, status, and pay in the order of priority that normally determines a reemployment position. The position may not necessarily be the same job the person previously held. Is the returning employee always entitled to have the same job back? Federal service by members of the National Guard called into action by the President to suppress an insurrection, repel an invasion, or to execute the laws of the United States – Section 4312 (c) (4) (E). 7. THE FEDERAL RESPONSE PLAN THE FEDERAL RESPONSE PLAN Disaster Occurs Local First Responders … This sixth exemption for the five-year limitation covers persons who are called to active duty after volunteering to support operational missions. response appointees of the National Disaster Medical System (NDMS). Cases that require legal advice or assistance are referred to the United States Department of Labor Veterans Employment Training Service (DOL-VETS). The two-year period will be extended by the minimum time required to accommodate a circumstance beyond an individual’s control that would make reporting within the two-year period impossible or unreasonable. What is an employer required to provide to a returning NDMS member upon reemployment? An employer has the right to request that a person who is absent for a period of service of 31 days or more provides documentation showing that, Section 4312 (f) (3) (A) / 20 CFR 1002.122. The U.S. Office of Personnel Management has issued regulations that apply specifically to Federal executive agencies. Note: This material is for information only and should not be considered as legal authority. 1. The following three-part reemployment scheme is required for persons with disabilities incurred or aggravated while in military service. Individuals with a background in the medical and public health services, emergency management, or forensic sciences, etc. This was the experience of some persons who served in the Global War on Terror. Section 1002.59 recognizes coverage for persons designated by the President in time of war or national emergency. .table thead th {background-color:#f1f1f1;color:#222;} As with all communications, you should provide full details of the problem, mailing and email addresses, and a telephone number where you can be reached. Did the employer grant the reemployed person pension plan benefits that accrued during military service? The employer must make reasonable efforts to accommodate a person’s disability so that the person can perform the duties of the reemployment position. See 20 CFR 1002.225. Please turn on JavaScript and try again. Does USERRA give a person the right to benefits from the civilian employer during a period of NDMS training or service? Defined benefit plans, defined contribution plans, and profit-sharing plans that are retirement plans are covered. The NDMS, ... (USERRA). If an individual’s past, present, or future connection with the service is a motivating factor in an employer’s adverse employment action against that individual, the employer has committed a violation, unless the employer can prove that it would have taken the same action regardless of the individual’s connection with the service. The statute lists four circumstances: 1. 2. Can an employee be required to use earned vacation while performing NDMS service? 4. A reduction-in-force that would have included the person would be an example. USERRA Covers National Disaster Medical System Deployments If the military service was for 30 or fewer days, the person cannot be required to pay more than the normal employee share of any premium. An interactive system, The USERRA Advisor, answers many of the most-often-asked questions about the law. If, due to no fault of the employee, timely reporting back to work would be impossible or unreasonable, the employee must report back to work as soon as possible after the expiration of the 8-hour period. (Exclude exceptions identified in the law.). What if a person is not qualified for the reemployment position? 8. The National Disaster Medical System (NDMS) uses individuals with specific expertise and experience within a wide range of professions. Did you exceed the 5-year limit on periods of service? When is prior notice to the civilian employer required? must have been released from service under conditions other than dishonorable for military reservists and Guard, and must not have been terminated for misconduct while serving on a Federal status, if an NDMS member. USERRA also prohibits employers from To qualify for USERRA’s protections, a service member must be available to return to work within certain time limits. The person who first left the position has the superior right to it. 202-260-0293 must not have exceeded the 5-year cumulative limit on periods of active Federal service. Within 30 days after a person is reemployed, an employer who participates in a multi-employer plan must provide written notice to the plan administrator of the person’s reemployment. However, such contributions have to be made promptly for persons who are absent for 90 or fewer days. Office of the Assistant Secretary for Preparedness and Response. USERRA or its regulations. (A) In the job the person would have held had the person remained continuously employed, so long as the person is qualified for the job or can become qualified after reasonable efforts by the employer; Section 4313 (a) (1) (A), or. USERRA also protects anyone—veteran or non-veteran, service member or non-service member—from reprisal for either exercising rights or assisting in any proceeding under the Act. Employers are also prohibited from discriminating on the basis of service in the military, the National Disaster Medical System, and the commissioned corps of the Public Health Service. DMATs were founded under the US Public Health Service, operating under FEMA. must hold or have applied for a civilian job. USERRA also prohibits employers from discriminating against past and present members of the uniformed services, and applicants to the uniformed services. How does the new law address discrimination by an employer or prospective employer? Section 4317 / 20 CFR 1002.164 / 20 CFR 1002.166. REEMPLOYMENT RIGHTS. Recruiting and inspector general complaints should be forwarded to the appropriate agencies. Caution: You May Have Rights Under Both EXTENDED COVERAGE and USERRA Your rights under EXTENDED COVERAGE and USERRA are similar but not identical. The time limit for reporting back to work for a person who is absent from work in order to take a fitness-for-service examination is the same as the one above for persons who are absent for 1 to 30 days. USERRA also protects workers at foreign offices of American companies and American offices of foreign companies, where USERRA doesn’t conflict with the foreign country’s laws. (USERRA) A.R.S. Service from which a person, through no fault of the person, is unable to obtain a release within the five-year limit – Section 4312 (c) (2). USERRA protects the job rights of individuals who voluntarily or involuntarily leave employment positions to undertake military service or certain types of service in the National Disaster Medical System. Are there reemployment rights following voluntary NDMS service? Employers may provide the notice “Your Rights Under USERRA” by posting it where employee notices are customarily placed. How can they get assistance from an ombudsmen? Accrued seniority, as if continuously employed. The person must report to his or her employer by the beginning of the first regularly scheduled work period that begins on the next calendar day following completion of service, after allowance for safe travel home from the military duty location and an 8-hour rest period. 2. Public Health Emergency - Leading a Nation Prepared, Note: This material is for information only and should not be considered as legal authority. The National Disaster Medical System shall be a coordinated effort by the Federal agencies specified in subparagraph (B), working in collaboration with the States and other appropriate public or private entities, to carry out the purposes described in paragraph (3). The Uniformed Services Employment and Reemployment Rights Act of 1994, enacted October 13, 1994 (Title 38 U.S. Code, Chapter 43, Sections 4301-4335, Public Law 103-353), as amended, provides for the employment and reemployment rights for all uniformed service members. the person’s application for reemployment is timely; the person has not exceeded the five-year service limitation; and. protected by USERRA includes National Guard members activated for state . Employers, regardless of size, are required to provide to persons entitled to the rights and benefits under USERRA, a notice of their rights, benefits and obligations. Definitions: "National Disaster Medical System (NDMS)" means the federally coordinated system that .manual-search-block #edit-actions--2 {order:2;} Employers must provide refresher training, and any other training necessary to update a returning employee’s skills so that he or she has the ability to perform the essential tasks of the position. Did the service member give advance notice of military service to the employer? A right or benefit is seniority-based if it is determined by or accrues with length of employment. 4. Office of Special Counsel . This would be particularly applicable in case of a long period of absence or service-connected disability. Military service must be considered service with an employer for vesting and benefit accrual purposes. Did you hold a job other than one that was brief, nonrecurring? If the Attorney General is satisfied that a complaint is meritorious, the Attorney General may file a court action on the complainant’s behalf. Duty performed by intermittent employees of the National Disaster Medical System (NDMS), which is part of the Department of Health and Human Services, when activated for a public health emergency, and approved training to prepare for such service For more information about USERRA, please go to the United States Department of Labor website. See Title 42, U.S. Code, Section 300hh-11(d). military personnel, USERRA also applies to persons serving in the active components of the Armed Forces and the National Disaster Medical System (NDMS). With the publication of the American Journal of Disaster Medicine, for the first time, ... National Disaster Medical System, the journal will be interdisciplinary and have a national and international focus in view of the global threats of today's complex disasters. Section 12304. Service performed during time of national emergency or for other critical homeland security missions/contingencies (for NDMS members) requirements. 5. USERRA Ombudsman For NDMS … ), 4. After the completion of NDMS service, what is the time frame within which a person has to report back to work or apply for reemployment? Information and technical assistance is provided by the Veterans’ Employment and Training Service (VETS) of the Department of Labor (Section 4321). During a period of service, the employees must be treated as if they are on a furlough or leave of absence. .cd-main-content p, blockquote {margin-bottom:1em;} The NDMS is a federally coordinated system that augments the nation’s medical response capability. Information about USERRA is also available on the Internet. See 5 CFR Part 353. Section 4313 (a) (1) (A) & (B) / 20 CFR 1002.196. 20 CFR § 1002 - CODE OF FEDERAL REGULATIONS: REGULATIONS IMPLEMENTING USERRA. If the employee cannot become qualified for either position described in (A) or (B) above: in any other position that most nearly approximates the above positions (in that order) that the employee is qualified to perform with full seniority. USERRA protects the job rights of individuals who voluntarily or involuntarily leave employment positions to undertake military service or certain types of service in the National Disaster Medical System. ... those who serve/d in the National Disaster Medical System and the Public Health Service Commissioned Corps, and active parts of the armed forces. NDMSUSERRA@hhs.gov, ATTN: Carilyn Garcia National Guard members (and National Disaster Medical System reservists) are protected under the Uniformed Services Employment and Reemployment Rights Act (USERRA). Reemployment of a person is excused if an employer’s circumstances have changed so that reemployment of the person would be impossible or unreasonable. Office of Special Counsel USERRA protects the job rights of individuals who voluntarily or involuntarily leave employment positions to undertake military service or certain types of service in the National Disaster Medical System. The law provides for health benefits continuation for persons who have coverage under a health plan in connection with their employment who are absent from work to serve in the military. Persons ordered to involuntary active duty for operational missions would be covered by the fourth exemption. The reporting or application deadlines are extended for up to two years for persons who are hospitalized or convalescing because of an injury or illness incurred or aggravated during the performance of military service. Where do I go for information or assistance? If you need more specific information on NDMS issues involving USERRA, contact: National Disaster Medical System USERRA Ombudsman US Department of Health and Human Services The Thomas P. O’Neill Federal Building 200 C Street, SW Washington, DC 20024 ATTN: Joe Lamoureux 202-260-0293 NDMSUSERRA@hhs.gov. 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