Restoration to Duty From Uniformed Service or Compensable Injury

OFFICE OF PERSONNEL MANAGEMENT

5 CFR Parts 353, 870, and 890

RIN 3206-AG02

Restoration to Duty From Uniformed Service or Compensable Injury

AGENCY: Office of Personnel Management.

ACTION: Interim regulations with request for written comments.

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SUMMARY: The Office of Personnel Management (OPM) is issuing interim

regulations on the restoration rights of Federal employees who leave

their employment to perform duty with the uniformed services. These

regulations implement the Uniformed Services Employment and

Reemployment Rights Act of 1994 (USERRA), Public Law 103-353, which was

enacted into law on October 13, 1994. The new law revises and

restructures the Veteran's Reemployment Rights law (codified in chapter

43 of title 38, United States Code), which governs the restoration

rights of employees who perform military duty. USERRA clarifies,

expands, and strengthens the rights and benefits of applicants and

employees, alters the appeal procedures available to Federal employees,

and, for the first time, provides Federal employees Department of Labor

assistance in processing claims. USERRA also requires OPM to place

certain returning employees when their former agencies determine that

it is ``impossible or unreasonable'' to reemploy them.

Although the sections have been renumbered, and in some cases

renamed, there is no substantive change in the regulations governing

the restoration rights of employees who sustain compensable injuries.

However, in Sec. 353.301(a), the word ``may'' has been changed to

``must'' to make clear that an agency must place an employee who fully

recovers from a compensable injury within 1 year, even if it means

placing the person in a different location. Also, Sec. 353.301(d) makes

clear that partially recovered employees are entitled to restoration

rights only in the local commuting area, not agencywide. (This

provision was inadvertently omitted from the final regulations

published in the Federal Register on January 13, 1995, that

incorporated into the regulations various staffing provisions

previously found only in the Federal Personnel Manual.)

These interim regulations also implement provisions that expand on

the coverage of the affected employees under the Federal Employees'

Group Life Insurance (FEGLI) Program and the Federal Employees Health

Benefits (FEHB) Program. Both the FEGLI and the FEHB regulations are

amended to show that employees who separate to perform military service

under the provisions of this Act are considered to be employees in

nonpay status. The FEHB regulations are further amended to show that

FEHB coverage may continue for up to 18 months after the employee

enters military service.

DATES: Effective: September 1, 1995. Comments must be received on or

before November 30, 1995.

ADDRESS: Send or deliver comments to: Leonard R. Klein, Associate

Director for Employment, U.S. Office of Personnel Management, 1900 E

Street, NW., Washington, DC 20415.

FOR FURTHER INFORMATION CONTACT: For part 353: Raleigh M. Neville,

(202) 606-

[[Page 45651]]

0830. For parts 870 and 890: Margaret Sears (202) 606-0004.

SUPPLEMENTARY INFORMATION: The job rights of employees who leave their

employment to perform military duty have been protected under the

Veterans' Reemployment Rights Act (chapter 43 of title 38, United

States Code) since 1940. However, this law had become a confusing

patchwork of statutory amendments, which, over the years, had been

interpreted by over one thousand different (and sometimes conflicting)

court decisions. It became increasingly difficult for employers and

employees to understand their respective rights and responsibilities.

Thus, on October 13, 1994, President Clinton signed into law the

new Uniformed Services Employment and Reemployment Rights Act of 1994

(USERRA), Pub. L. 103-353. The new law completely rewrites the existing

provisions of title 38, United States Code, governing the rights of

employees who perform military duty and makes many substantive changes

that will affect employees, agencies, and OPM.

Among the important changes made by the new law are the following:

--Coverage is broader. USERRA covers persons who perform duty in

the ``uniformed services.'' (Under the old law, coverage was limited to

the ``armed forces.'') It also covers all employees except those

serving in positions where there is ``no reasonable expectation that

employment will continue indefinitely or for a reasonable period.''

(The old law specifically excluded temporary service.) The interim

regulations provide that all employees are covered. However, an

employee on a time-limited appointment who enters uniformed service

serves out any remaining unexpired portion of the appointment upon his

or her return.

--Intelligence agencies are treated differently under the law.

Although employees in these agencies (CIA, FBI, NSA, etc.) have

substantially the same rights as other Federal employees under the law,

they are not subject to OPM's regulations and do not have the same

appeal rights as other employees.

--There is a 5-year cumulative total on uniformed service. For the

first time, the law makes clear that it is intended to protect

``noncareer'' service and establishes a 5-year cumulative total on

uniformed service. (Under the interpretations applied to the old law, a

Federal employee could be absent on military duty for up to 4 years at

a time and there was no cumulative limit.) However, there are important

exceptions to the 5-year limit. These include initial enlistments

lasting more than 5 years, periodic training duty, and involuntary

active duty extensions and recalls. The new law expressly provides that

an employee's job protections do not depend on the timing, frequency,

or duration of uniformed service.

--Enhanced protections for disabled veterans. Agencies must make

reasonable efforts to accommodate the disability. Servicemembers

convalescing from injuries received during service now have up to 2

years to return to their jobs (as opposed to 1 year under the old law).

--New skills training required for some veterans. As under the old

law, USERRA provides that returning servicemembers be reemployed in the

job they would have attained had they not been absent for military

service (the longstanding ``escalator'' principle). However, the new

law also requires that reasonable efforts be made (such as training or

retraining) that would enable returning servicemembers to refresh or

upgrade their skills so that they might qualify for reemployment.

--The position to which the person has restoration rights is now

determined by how long the employee has been gone. If the period of

military duty is less than 91 days, the employee is entitled to the

position he or she would have attained had the absence not occurred. If

the military duty lasts more than 90 days, the person's entitlement is

essentially the same except that he or she may be placed in an

equivalent position. (Under the old law, restoration rights were based

largely on the kind of military duty performed, for example, active

duty, active duty for training, inactive duty, etc.)

--Similarly, the length of time an employee has to report back for

duty following uniformed service is now determined by how long he or

she has been gone. If the absence was for less than 31 days, the

employee must return at the beginning of the next regularly scheduled

work period on the first full day after release from service, taking

account safe travel home plus an 8 hour rest period. For service of

more than 30 days but less than 181 days, the employee must submit an

application for restoration within 14 days of release from service. For

service of more than 180 days, an application for restoration must be

submitted within 90 days of release from service. Failure to return

within these time limits does not mean that restoration rights are

forfeited; it only means the agency can take whatever disciplinary

action it would normally take for unexcused absences. (Under the old

law, the length of time an employee had to apply for restoration was

determined by the type of military duty performed.)

--Notice requirement. For the first time, the law requires that

servicemembers provide advance written or verbal notice to their

agencies for all military service. (Under the old law, notice was

required only for training duty.)

--Appeal rights have changed. Federal employees and applicants with

complaints under the new law may now seek assistance from the

Department of Labor's Veterans' Employment and Training Service (VETS).

VETS will attempt to informally resolve any disputes with the agency

over military duty. If informal resolution fails, Labor will refer the

case to the Office of the Special Counsel which is authorized to

represent the employee before the Merit Systems Protection Board.

Alternatively, an employee may still elect to appeal directly to MSPB

and by-pass Labor and the Special Counsel.

--Special placement provisions are mandated for certain returning

employees when their former agencies are unable to reemploy them. The

new law requires OPM to place in the executive branch the following

categories of employees when their former agencies determine that it is

``impossible or unreasonable'' to reemploy them:

(1) Executive branch employees whose agencies no longer exist and

the functions have not been transferred, or it is otherwise impossible

or unreasonable to reemploy the person;

(2) Legislative and judicial branch employees;

(3) National Guard technicians; and

(4) Employees of the intelligence agencies.

The interim regulations specify how this will be carried out.

--Status while absent. While on duty with the uniformed services,

an employee is considered to be on a leave of absence (leave without

pay) unless the employee elects to use other leave.

--Nondiscrimination. USERRA broadens the nondiscrimination

provisions of the old law and expressly forbids any discrimination in

employment or proportion because of uniformed service.

--Enhanced health and pension plan coverage. Employees performing

military duty of more than 30 days may elect to continue their health

benefit coverage for up to 18 months. Also under USERRA, to receive

retirement credit for military service, employees under the Federal

Employees Retirement System (FERS) are required to pay only what they

would have paid had they not gone on military duty.

[[Page 45652]]

USERRA also expands retirement coverage to include all full-time

National Guard duty if that duty interrupts creditable civilian service

and is followed by reemployment that occurs after August 1, 1990. (Only

National Guard service performed for the U.S. was covered under the old

law.)

Under 38 U.S.C. 4316, employee benefits, other than health

benefits, continue for employees covered by this Act in the same way as

they do for other employees who are on leave without pay. Employees who

leave their jobs to enter the uniformed services are considered to be

employees on leave without pay so long as they meet the requirements

for reemployment under this Act. Under the Federal Employees' Group

Life Insurance (FEGLI) Program, employees may continue their life

insurance coverage for up to 12 months in nonpay status at no cost to

the employee. Therefore, the interim regulations amend 5 CFR 870.502 to

show that an employee who separates from Federal service to enter the

uniformed services is considered to be an employee in nonpay status for

so long as the employee remains eligible for benefits under 38 U.S.C.

4316. As a result, life insurance coverage continues for up to one year

for employees who do not separate, but go on military furloughs (nonpay

status). For those who actually separate from their Federal jobs to

enter the uniformed services, life insurance coverage continues for up

to 12 months or until a date that is 90 days after the service with the

uniformed services ends, whichever is earlier.

Under 38 U.S.C. 4317, employees who are covered by an employers'

group health plan and who enter the uniformed services may elect to

continue their coverage for up to 18 months after the date the absence

to serve in the uniformed services begins. If the service continues for

more than 30 days, the employee can be charged up to 102 percent of the

premium. The Federal Employees Health Benefits (FEHB) law provides for

continued coverage for up to 12 months for employees in leave without

pay status. FEHB regulations provide that these employees may pay their

respective shares of the premium; however, an employee may choose to

incur a debt and postpone payment until he or she returns to pay and

duty status. The employing agency must pay the Government contribution

on a current basis. Therefore, for the first 12-months, employees

entitled to benefits under 38 U.S.C. 4317 are charged only the employee

share of the premium.

The interim regulations amend Secs. 890.303 and 890.304 to provide

that the enrollment of an employee who enters on military furlough

(nonpay status) may continue an additional 6 months after the coverage

would otherwise stop due to the expiration of 365 days in nonpay status

if the employee's eligibility for benefits under 38 U.S.C. 4317

continues. The enrollment of an employee who separates to enter the

uniformed services may continue for up to 18 months if the employee's

eligibility for benefits under 38 U.S.C. 4317 continues. (Eligibility

for benefits under 38 U.S.C. 4317 ends the earlier of 18 months after

the date the employee's absence due to service in the uniformed

services began or 90 days after the service ends.) Employees on

military furlough or in nonpay status to serve in the uniformed

services on the date of enactment of Pub. L. 103-353, October 13, 1994,

are also entitled to continued coverage under 38 U.S.C. 4317 for the

balance of the 18-month period after their absence to enter the

uniformed services began. An enrollment that had already terminated due

to the expiration of 365 days in nonpay status may be reinstated for

the balance of the 18-month period.

The interim regulations also amend 5 CFR 890.502(g) to provide that

employees whose enrollment continues beyond 12 months in nonpay status

because of their eligibility for benefits under 38 U.S.C. 4317 must pay

102 percent of the premium (the employee share plus the Government

share, plus 2 percent of the total). In addition, the interim

regulations amend the provision for waiving the employee share of the

health benefits premium for employees who enter the uniformed services

in support of Operations Desert Shield and/or Desert Storm by limiting

its application to those who enter before the effective date of these

interim regulations.

--Enhanced thrift savings plan coverage. The new law allows

employees to make up contributions to the thrift savings plan missed

because of military duty. Under the old law, employees who went on

military duty were ineligible to make contributions to the thrift

savings plan. (The Federal Retirement Thrift Investment Board is

issuing regulations on this aspect of the law.)

--Effective date. The new law applies to restorations effected on

or after December 12, 1994.

Waiver of Notice of Proposed Rulemaking

Pursuant to 5 U.S.C. 553(b)(3)(B), I find that good cause exists

for waiving the general notice of proposed rulemaking. Specifically,

the law which these regulations implement was enacted in October 1994

and became fully effective as of December 12, 1994.

Regulatory Flexibility Act

I certify that this regulation will not have a significant impact

on a substantial number of small entities because it pertains only to

Federal employees and agencies.

List of Subjects

5 CFR Part 353

Administrative practice and procedure, Government employees.

5 CFR Part 870

Administrative practice and procedure, Government employees,

Hostages, Iraq, Kuwait, Lebanon, Life insurance, Retirement.

5 CFR Part 890

Administrative practice and procedure, Government employees, Health

facilities, Health insurance, Health professions, Hostages, Iraq,

Kuwait, Lebanon, Reporting and recordkeeping requirements, Retirement.

Office of Personnel Management,

James B. King,

Director.

Accordingly, OPM is amending parts 353, 870, and 890 as follows:

1. Part 353 is revised to read as follows:

PART 353--RESTORATION TO DUTY FROM UNIFORMED SERVICE OR COMPENSABLE

INJURY

Subpart A--General Provisions

Sec.

353.101 Scope.

353.102 Definitions.

353.103 Persons covered.

353.104 Notification of rights and obligations.

353.105 Maintenance of records.

353.106 Personnel actions during employee's absence.

353.107 Service credit upon reemployment.

353.108 Effect of performance and conduct on restoration rights.

353.109 Transfer of function to another agency.

353.110 OPM placement assistance.

Subpart B--Uniformed Service

353.201 Introduction.

353.202 Discrimination and acts of reprisal prohibited.

353.203 Length of service.

353.204 Notice to employer.

353.205 Return to duty and application for reemployment.

353.206 Documentation upon return.

353.207 Position to which restored.

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353.208 Use of paid leave during uniformed service.

353.209 Retention protections.

353.210 Department of Labor assistance to applicants and employees.

353.211 Appeal rights.

Subpart C--Compensable Injury

353.301 Restoration rights.

353.302 Retention protections.

353.303 Restoration rights of TAPER employees.

353.304 Appeals to the Merit Systems Protection Board.

Authority: 38 U.S.C. 4301 et. seq., and 5 U.S.C. 8151.

Subpart A--General Provisions

Sec. 353.101 Scope.

The rights and obligations of employees and agencies in connection

with leaves of absence or restoration to duty following uniformed

service under 38 U.S.C. 4301 et. seq., and restoration under 5 U.S.C.

8151 for employees who sustain compensable injuries, are subject to the

provisions of this part. Subpart A covers those provisions that are

common to both of the above groups of employees. Subpart B deals with

provisions that apply just to uniformed service and subpart C covers

provisions that pertain just to injured employees.

Sec. 353.102 Definitions.

In this part:

Agency means.

(1) With respect to restoration following a compensable injury, any

department, independent establishment, agency, or corporation in the

executive branch, including the U.S. Postal Service and the Postal Rate

Commission, and any agency in the legislative or judicial branch; and

(2) With respect to uniformed service, an executive agency as

defined in 5 U.S.C. 105 (other than an intelligence agency referred to

in 5 U.S.C. 2302(a)(2)(C)(ii), including the U.S. Postal Service and

Postal Rate Commission, a nonappropriated fund instrumentality of the

United States, or a military department as defined in 5 U.S.C. 102. In

the case of a National Guard technician employed under 32 U.S.C. 709,

the employing agency is the adjutant general of the State in which the

technician is employed.

Fully recovered means compensation payments have been terminated on

the basis that the employee is able to perform all the duties of the

position he or she left or an equivalent one.

Injury means a compensable injury sustained under the provisions of

5 U.S.C. chapter 81, subchapter 1, and includes, in addition to

accidental injury, a disease proximately caused by the employment.

Leave of absence means military leave, annual leave, without pay

(LWOP), furlough, continuation of pay, or any combination of these.

Military leave means paid leave provided to Reservists and members

of the National Guard under 5 U.S.C. 6323.

Notice means any written or verbal notification of an obligation or

intention to perform service in the uniformed services provided to an

agency by the employee performing the service or by the uniformed

service in which the service is to be performed.

Partially recovered means an injured employee, though not ready to

resume the full range of his or her regular duties, has recovered

sufficiently to return to part-time or light duty or to another

position with less demanding physical requirements. Ordinarily, it is

expected that a partially recovered employee will fully recover

eventually.

Physically disqualified means that:

(1)(i) For medical reasons the employee is unable to perform the

duties of the position formerly held or an equivalent one, or

(ii) There is a medical reason to restrict the individual from some

or all essential duties because of possible incapacitation (for

example, a seizure) or because of risk of health impairment (such as

further exposure to a toxic substance for an individual who has already

shown the effects of such exposure).

(2) The condition is considered permanent with little likelihood

for improvement or recovery.

Reasonable efforts in the case of actions required by an agency for

a person returning from uniformed service means actions, including

training, that do not place an undue hardship on the agency.

Service in the uniformed services means the performance of duty on

a voluntary or involuntary basis in a uniformed service under competent

authority and includes active duty, active duty for training, initial

active duty for training, inactive duty training, full-time National

Guard duty, and a period for which a person is absent from employment

for the purpose of examination to determine fitness to perform such

duty.

Status means the particular attributes of a specific position. This

includes the rank or responsibility of the position, its duties,

working conditions, pay, tenure, and seniority.

Undue hardship means actions taken by an agency requiring

significant difficulty or expense, when considered in light of--

(1) The nature and cost of actions needed under this part;

(2) The overall financial resources of the facility involved in

taking the action; the number of persons employed at the facility; the

effect on expenses and resources, or the impact otherwise of the action

on the operation of the facility; and

(3) The overall size of the agency with respect to the number of

employees, the number, type, and location of its facilities and type of

operations, including composition, structure, and functions of the work

force.

Uniformed services means the Armed Forces, the Army National Guard

and the Air National Guard when engaged in active duty for training,

inactive duty training, or full-time National Guard duty, the

Commissioned Corps of the Public Health Service, and any other category

of persons designated by the President in time of war or emergency.

Sec. 353.103 Persons covered.

(a) The provisions of this part pertaining to service in the

uniformed services cover each agency employee who enters into such

service. However, an employee serving under a time-limited appointment

completes any unexpired portion of his or her appointment upon return

from uniformed service.

(b) The provisions of this part concerning employee injury cover a

civil officer or employee in any branch of the Government of the United

States, including an officer or employee of an instrumentally wholly

owned by the United States, who was separated or furloughed from an

appointment without time limitation, or from a temporary appointment

pending establishment of a register (TAPER) as a result of a

compensable injury; but do not include--

(1) A commissioned officer of the Regular Corps of the Public

Health Service;

(2) A commissioned officer of the Reserve Corps of the Public

Health Service on active duty; or

(3) A commissioned officer of the National Oceanic and Atmospheric

Administration.

Sec. 353.104 Notification of rights and obligations.

When an agency separates, grants a leave of absence, restores or

fails to restore an employee because of uniformed service or

compensable injury, it shall notify the employee of his or her rights,

obligations, and benefits relating to Government employment, including

any appeal and grievance rights. However, regardless of notification,

an employee is still required to exercise due diligence in

[[Page 45654]]

ascertaining his or her rights, and to seek reemployment within the

time limits provided by chapter 43 of title 38, United States Code, for

restoration after uniformed service, or as soon as he or she is able

after a compensable injury.

Sec. 353.105 Maintenance of records.

Each agency shall identify the position vacated by an employee who

is injured or leaves to enter uniformed service. It shall also maintain

the necessary records to ensure that all such employees are preserved

the rights and benefits granted by law and this part.

Sec. 353.106 Personnel actions during employee's absence.

(a) An employee absent because of service in the uniformed services

is to be carried on leave without pay unless the employee elects to use

other leave or freely and knowingly provides written notice of intent

not to return to a position of employment with the agency, in which

case the employee can be separated. (Note: A separation under this

provision affects only the employee's seniority while gone; it does not

affect his or her restoration rights.)

(b) An employee absent because of compensable injury may be carried

on leave without pay or separated unless the employee elects to use

sick or annual leave.

(c) Agency promotion plans must provide a mechanism by which

employees who are absent because of compensable injury or uniformed

service can be considered for promotion.

Sec. 353.107 Service credit upon reemployment.

Upon reemployment, an employee absent because of uniformed service

or compensable injury is generally entitled to be treated as though he

or she had never left. This means that a person who is reemployed

following uniformed service or full recovery from compensable injury

receives credit for the entire period of the absence for purposes of

rights and benefits based upon seniority and length of service,

including within-grade increases, career tenure, completion of

probation, leave rate accrual, and severance pay.

Sec. 353.108 Effect of performance and conduct on restoration rights.

The laws covered by this part do not permit an agency to circumvent

the protections afforded by other laws to employees who face the

involuntary loss of their positions. Thus, an employee may not be

denied restoration rights because of poor performance or conduct that

occurred prior to the employee's departure for compensable injury or

uniformed service. However, separation for cause that is substantially

unrelated to the injury or to the performance of uniformed service

negates restoration rights. Additionally, if during the period of

injury or uniformed service the employee's conduct is such that it

would disqualify him or her for employment under OPM or agency

regulations, restoration rights may be denied.

Sec. 353.109 Transfer of function to another agency.

If the function of an employee absent because of uniformed service

or compensable injury is transferred to another agency, and if the

employee would have been transferred with the function under part 351

of this chapter had he or she not been absent, the employee is entitled

to be placed in a position in the gaining agency that is equivalent to

the one he or she left. It shall also assume the obligation to restore

the employee in accordance with law and this part.

Sec. 353.110 OPM placement assistance.

(a) Employee returning from uniformed service. (1) OPM will offer

placement in the executive branch to the following categories of

employees upon notification by the agency and application by the

employee: (Such notification should be sent to the Associate Director

for Employment, OPM, 1900 E Street, NW., Washington, DC 20415.)

(i) Executive branch employees (other than an employee of an

intelligence agency) when OPM determines that:

(A) their agencies no longer exist and the functions have not been

transferred, or;

(B) it is otherwise impossible or unreasonable for their former

agencies to place them;

(ii) Legislative and judicial branch employees when their employers

determine that it is impossible or unreasonable to reemploy them;

(iii) National Guard technicians when the Adjutant General of a

State determines that it is impossible or unreasonable to reemploy

them; and

(iv) Employees of the intelligence agencies (defined in 5 U.S.C.

2302(a)(2)(C)(ii)) when their agencies determine that it is impossible

or unreasonable to reemploy them.

(2) OPM will determine if a vacant position equivalent (in terms of

pay, grade, and status) to the one time the individual left exists, for

which the individual is qualified, in the commuting area in which he or

she was employed immediately before entering the uniformed services. If

such a vacancy exists, OPM will order the agency to place the

individual. If no such position is available, the individual may elect

to be placed in a lesser position in the commuting area, or OPM will

attempt to place the individual in an equivalent position in another

geographic location determined by OPM. If the individual declines an

offer of equivalent employment, he or she has no further restoration

rights.

(b) Employee returning from compensable injury. OPM will provide

placement assistance to an employee with restoration rights in the

executive, legislative, or judicial branches who cannot be placed in

his or her former agency and who either has competitive status or is

eligible to acquire it under 5 U.S.C. 3304(C). If the employee's agency

is abolished and its functions are not transferred, or it is not

possible for the employee to be restored in his or her former agency,

OPM will provide placement assistance by enrolling the employee in

OPM's Interagency Placement Program (or its successor) under part 330

of this chapter. This paragraph does not apply to an employee serving

under a temporary appointment pending establishment of a register

(TAPER).

Subpart B--Uniformed Service

Sec. 353.201 Introduction.

The Uniformed Services Employment and Reemployment Rights Act of

1994 revised and strengthened the existing Veterans' Reemployment

Rights law, made the Department of Labor responsible for investigating

employee complaints, required OPM to place certain returning employees

in other agencies, established a separate restoration rights program

for employees of the intelligence agencies, and altered the appeals

rights process. The new law applies to persons exercising restoration

rights on or after December 12, 1994.

Sec. 353.202 Discrimination and acts of reprisal prohibited.

A person who seeks or holds a position in the Executive branch may

not be denied hiring, retention in employment, or any other incident or

advantage of employment because of any application, membership, or

service in the uniformed services. Furthermore, an agency may not take

any reprisal against an employee for taking any action to enforce a

protection, assist or participate in an investigation, or exercise any

right provided for under chapter 43 of title 38, United States Code.

[[Page 45655]]

Sec. 353.203 Length of service.

(a) Counting service after the effective date of USERRA (12/12/94).

To be entitled to restoration rights under this part, cumulative

service in the uniformed services while employed by the Federal

Government may not exceed 5 years. However, the 5-year period does not

include any service--

(1) That is required beyond 5 years to complete an initial period

of obligated service;

(2) During which the individual was unable to obtain orders

releasing him or her from service in the uniformed services before

expiration of the 5-year period, and such inability was through no

fault of the individual;

(3) Performed as required pursuant to 10 U.S.C. 10147, under 32

U.S.C. 502(a) or 503, or to fulfill additional training requirements

determined and certified in writing by the Secretary of the military

department concerned to be necessary for professional development or

for completion of skill training or retraining;

(4) Performed by a member of a uniformed service who is:

(i) Ordered to or retained on active duty under sections 12301(a),

12301(g), 12302, 12304, 12305, or 688 of title 10, United States Code,

or under 14 U.S.C. 331, 332, 359, 360, 367, or 712;

(ii) Ordered to or retrained on active duty (other than for

training) under any provision of law during a war or during a national

emergency declared by the President or the Congress;

(iii) Ordered to active duty (other than for training) in support,

as determined by the Secretary of the military department concerned, of

an operational mission for which personnel have been ordered to active

duty under 10 U.S.C. 12304;

(iv) Ordered to active duty in support, as determined by the

Secretary of the military department concerned, of a critical mission

or requirement of the uniformed services, or

(iv) Called into Federal service as a member of the National Guard

under chapter 15 or under section 12406 of title 10, United States

Code.

(b) Counting service prior to the effective date of USERRA. In

determining the 5-year total that may not be exceeded for purposes of

exercising restoration rights, service performed prior to December 12,

1994, is considered only to the extent that it would have counted under

the previous law (the Veterans' Reemployment Rights statute). For

example, the service of a National Guard technician who entered on an

Active Guard Reserve (AGR) tour under section 502(f) of title 32,

United States Code, was not counted toward the 4-year time limit under

the previous statute because it was specifically considered active duty

for training. However, title 32, section 502(f) AGR service is not

exempt from the cumulative time limits allowed under USERRA and service

after the effective date counts under USERRA rules. Thus, if a

technician was on a 32 U.S.C. 502(f) AGR tour on October 13, 1994, (the

date USERRA was signed into law), but exercised restoration rights

after December 11, 1994, (the date USERRA became fully effective), AGR

service prior to December 12 would not count in computing the 5-year

total, but all service beginning with that date would count.

(c) Nature of Reserve service and resolving conflicts. An employee

who is a member of the Reserve or National Guard has a dual

obligation--to the military and to his or her employer. Given the

nature of the employee's service obligation, some conflict with job

demands is often unavoidable and a good-faith effort on the part of

both the employee and the agency is needed to minimize conflict and

resolve differences. Some accommodation may be necessary by both

parties. Most Reserve component members are required, as a minimum, to

participate in drills for 2 days each month and in 2 weeks of active

duty for training per year. But some members are required to

participate in longer or more frequent training tours. USERRA makes it

clear that the timing, frequency, duration, and nature of the duty

performed is not an issue so long as the employee gave proper notice,

and did not exceed the time limits specified. However, to the extent

that the employee has influence upon the timing, frequency, or duration

of such training or duty, he or she is expected to use that influence

to minimize the burden upon the agency. The employee is expected to

provide the agency with as much advance notice as possible whenever

military duty or training will interfere with civilian work. When a

conflict arises between the Reserve duty and the legitimate needs of

the employer, the agency may contact appropriate military authorities

to express concern. Where the request would require the employee to be

absent from work for an extended period, during times of acute need, or

when, in light of previous leaves, the requested leave is cumulatively

burdensome, the agency may contact the military commander of the

employee's military unit to determine if the military duty could be

rescheduled or performed by another member. If the military authorities

determine that the military duty cannot be rescheduled or cancelled,

the agency is required to permit the employee to perform his or her

military duty.

(d) Mobilization authority. By law, members of the Selected Reserve

(a component of the Ready Reserve), can be called up under a

presidential order for purposes other than training for as long as 270

days. If the President declares a national emergency, the remainder of

the Ready Reserve--the Individual Ready Reserve and the Inactive

National Guard--may be called up. The Ready Reserve as a whole is

subject to as much as 24 consecutive months of active duty in a

national emergency declared by the President.

Sec. 353.204 Notice to employer.

To be entitled to restoration rights under this part, an employee

(or an appropriate officer of the uniformed service in which service is

to be performed) must give the employer advance written or verbal

notice of the service except that no notice is required if it is

precluded by military necessity or, under all relevant circumstances,

the giving of notice is otherwise impossible or unreasonable.

Sec. 353.205 Return to duty and application for reemployment.

Periods allowed for return to duty are based on the length of time

the person was performing service in the uniformed services, as

follows:

(a) An employee whose uniformed service was for less than 31 days,

or who was absent for the purpose of an examination to determine

fitness for the uniformed services, is required to report back to work

not later than the beginning of the first regularly scheduled work day

on the first full calendar day following completion of the period of

service and the expiration of 8 hours after a period allowing for the

safe transportation of the employee from the place of service to the

employee's residence, or as soon as possible after the expiration of

the 8-hour period if reporting within the above period is impossible or

unreasonable through no fault of the employee.

(b) If the service was for more than 30 but less than 181 days, the

employee must submit an application for reemployment with the agency

not later than 14 days after completing the period of service. (If

submitting the application is impossible or unreasonable through no

fault of the individual, it must be submitted the next full calendar

day when it becomes possible to do so.)

(c) If the period of service was for more than 180 days, the

employee must submit an application for reemployment

[[Page 45656]]

not later than 90 days after completing the period of service.

(d) An employee who is hospitalized or convalescing from an injury

or illness incurred in, or aggravated during uniformed service is

required to report for duty at the end of the period that is necessary

for the person to recover, based on the length of service as discussed

in paragraphs (a), (b), and (c) of this section, except that the period

of recovery may not exceed 2 years (extended by the minimum time

required to accommodate circumstances beyond the employee's control

which make reporting within the period specified impossible or

unreasonable).

(e) A person who does not report within the time limits specified

does not automatically forfeit restoration rights, but, rather, is

subject to whatever policy and disciplinary action the agency would

normally apply for a similar absence without authorization.

Sec. 353.206 Documentation upon return.

Upon request, a returning employee who was absent for more than 30

days, or was hospitalized or convalescing from an injury or illness

incurred in or aggravated during the performance of service in the

uniformed services, must provide the agency with documentation that

establishes the timeliness of the application for reemployment, and

length and character of service. If documentation is unavailable, the

agency must restore the employee until documentation becomes available.

Sec. 353.207 Position to which restored.

(a) Timing. An employee returning from the uniformed services

following an absence of more than 30 days is entitled to be restored as

soon as possible after making application, but in no event later than

30 days after receipt of the application by the agency.

(b) Nondisabled. If the employee's uniformed service was for less

than 91 days, he or she must be employed in the position for which

qualified that he or she would have attained if continuously employed.

If not qualified for this position after reasonable efforts by the

agency to qualify the employee, he or she is entitled to be placed in

the position he or she left. For service of 91 days or more, the agency

has the option of placing the employee in a position of like seniority,

status, and pay. (Note: Upon reemployment, a term employee completes

the unexpired portion of his or her original appointment.) If

unqualified (for any reason other than disability incurred in or

aggravated during service in the uniformed services) after reasonable

efforts by the agency to qualify the employee for such position or the

position the employee left, he or she must be restored to any other

position of lesser status and pay for which qualified, with full

seniority.

(c) Disabled. An employee with a disability incurred in or

aggravated during uniformed service and who, after reasonable efforts

by the agency to accommodate the disability, is entitled to be placed

in another position for which qualified that will provide the employee

with the same seniority, status, and pay, or the nearest approximation

consistent with the circumstances in each case. The agency is not

required to reemploy a disabled employee if, after making due efforts

to accommodate the disability, such reemployment would impose an undue

hardship on the agency.

(d) Two or more persons entitled to restoration in the same

position. If two or more persons are entitled to restoration in the

same position, the one who left the position first has the prior right

to restoration in that position. The other employee(s) is entitled to

be placed in a position as described in paragraphs (b) and (c) of this

section.

(e) Relationship to an entitlement based on veterans' preference.

An employee's right to restoration under this part does not entitle the

person to retention, preference, or displacement rights over any person

with a superior claim based on veterans' preference.

Sec. 353.208 Use of paid leave during uniformed service.

An employee performing service with the uniformed services must be

6permitted, upon request, to use any accrued annual leave (or sick

leave, if appropriate), or military leave during such service. (Note,

however, that under 5 U.S.C. 6323, military leave cannot be used for

inactive duty, e.g., drills.)

Sec. 353.209 Retention protections.

(a) During uniformed service. An employee may not be demoted or

separated (other than military separation) while performing duty with

the uniformed services except for cause. (Reduction in force is not

considered ``for cause'' under this subpart.) He or she is not a

``competing employee'' under Sec. 351.404 of this chapter. If the

employee's position is abolished during such absence, the agency must

reassign the employee to another position of like status, and pay.

(b) Upon reemployment. Except in the case of an employee under

time-limited appointment who finishes out the unexpired portion of his

or her appointment upon reemployment, an employee reemployed under this

subpart may not be discharged, except for cause--

(1) If the period of uniformed service was more than 180 days,

within 1 year; and

(2) If the period of uniformed service was more than 30 days, but

less than 181 days, within 6 months.

Sec. 353.210 Department of Labor assistance to applicants and

employees.

USERRA requires the Department of Labor's Veterans' Employment and

Training Service (VETS) to provide employment and reemployment

assistance to any Federal employee or applicant who requests it. VETS

staff will attempt to informally resolve employment disputes brought to

them. If informal dispute resolution proves unsuccessful, VETS may ask

the Office of the Special Counsel to represent the individual in an

appeal before the Merit Systems Protection Board (MSPB).

Sec. 353.211 Appeal rights.

An individual who believes an agency has not complied with the

provisions of law and this part relating to the employment or

reemployment of the person by the agency may--

(a) File a complaint with the Department of Labor, as noted in

Sec. 353.210, or

(b) Appeal directly to MSPB if the individual chooses not to file a

complaint with the Department of Labor, or is informed by either Labor

or the Office of the Special Counsel that they will not pursue to the

case.

Subpart C--Compensable Injury

Sec. 353.301 Restoration rights.

(a) Fully recovered within 1 year. An employee who fully recovers

from a compensable injury within 1 year from the date eligibility for

compensation began (or from the time compensable disability recurs if

the recurrence begins after the employee resumes regular full-time

employment with the United States), is entitled to be restored

immediately and unconditionally to his or her former position or an

equivalent one. Although these restoration rights are agencywide, the

employee's basic entitlement is to the former position or equivalent in

the local commuting area the employee left. If a suitable vacancy does

not exist, the employee is entitled to displace an employee occupying a

continuing position under temporary appointment or tenure group III. If

there is no such position in the local commuting area, the agency must

offer the employee a position (as described above) in another location.

This paragraph also applies when an injured employee accepts a lower-

grade position

[[Page 45657]]

in lieu of separation and subsequently fully recovers. A fully

recovered employee is expected to return to work immediately upon the

cessation of compensation.

(b) Fully recovered after 1 year. An employee who separated because

of a compensable injury and whose full recovery takes longer than 1

year from the date eligibility for compensation began (or from the time

compensable disability recurs if the recurrence begins after the

injured employee resumes regular full-time employment with the United

States), is entitled to priority consideration, agencywide, for

restoration to the position he or she left or an equivalent one

provided he or she applies for reappointment within 30 days of the

cessation of compensation. Priority consideration is accorded by

entering the individual on the agency's reemployment priority list for

the competitive service or reemployment list for the excepted service.

If the individual cannot be placed in the former commuting area, he or

she is entitled to priority consideration for an equivalent position

elsewhere in the agency. (See parts 302 and 330 of this chapter for

more information on how this may be accomplished for the excepted and

competitive services, respectively.) This subpart also applies when an

injured employee accepts a lower-graded position in lieu of separation

and subsequently fully recovers.

(c) Physically disqualified. An individual who is physically

disqualified for the former position or equivalent because of a

compensable injury, is entitled to be placed in another position for

which qualified that will provide the employee with the same status,

and pay, or the nearest approximation thereof, consistent with the

circumstances in each case. This right is agencywide and applies for a

period of 1 year from the date eligibility for compensation begins.

After 1 year, the individual is entitled to the rights accorded

individuals who fully or partially recover, as applicable.

(d) Partially recovered. Agencies must make every effort to restore

in the local commuting area, according to the circumstances in each

case, an individual who has partially recovered from a compensable

injury and who is able to return to limited duty. At a minimum, this

would mean treating these employees substantially the same as other

handicapped individuals under the Rehabilitation Act of 1973, as

amended. (See 29 U.S.C. 791(b) and 794.) If the individual fully

recovers, he or she is entitled to be considered for the position held

at the time of injury, or an equivalent one. A partially recovered

employee is expected to seek reemployment as soon as he or she is able.

Sec. 353.302 Retention protections.

An injured employee enjoys no special protection in a reduction in

force. Separation by reduction in force or for cause while on

compensation means the individual has no restoration rights.

Sec. 353.303 Restoration rights of TAPER employees.

An employee serving in the competitive service under a temporary

appointment pending establishment of a register (TAPER) under

Sec. 316.201 of this chapter (other than an employee serving in a

position classified above GS-15), is entitled to be restored to the

position he or she left or an equivalent one in the same commuting

area.

Sec. 353.304 Appeals to the Merit Systems Protection Board.

(a) Except as provided in paragraphs (b) and (c) of this section,

an injured employee or former employee of an agency in the executive

branch (including the U.S. Postal Service and the Postal Rate

Commission) may appeal to the MSPB an agency's failure to restore,

improper restoration, or failure to return an employee following a

leave of absence. All appeals must be submitted in accordance with

MSPB's regulations.

(b) An individual who fully recovers from a compensable injury more

than 1 year after compensation begins may appeal to MSPB as provided

for in parts 302 and 330 of this chapter for excepted and competitive

service employees, respectively.

(c) An individual who is partially recovered from a compensable

injury may appeal to MSPB for a determination of whether the agency is

acting arbitrarily and capriciously in denying restoration. Upon

reemployment, a partially recovered employee may also appeal the

agency's failure to credit time spent on compensation for purposes of

rights and benefits based upon length of service.

PART 870--BASIC LIFE INSURANCE

2. The authority citation for part 870 continues to read as

follows:

Authority: 5 U.S.C. 8716; section 870.202(c) also issued under 5

U.S.C. 7701(b)(2); subpart J is also issued under section 599C of

Pub. L. 101-513, 104 Stat. 2064, as amended.

3. In Sec. 870.501, paragraph (d) is amended by adding a sentence

at the end to read as follows:

Sec. 870.501 Termination and conversion of insurance coverage.

* * * * *

(d) * * * For the purpose of this paragraph, an individual who is

entitled to benefits under part 353 of this chapter is considered to be

an employee in nonpay status.

* * * * *

PART 890--FEDERAL EMPLOYEES HEALTH BENEFITS PROGRAM

4. The authority citation for part 890 continues to read as

follows:

Authority: 5 U.S.C. 8913; section 890.803 also issued under 50

U.S.C. 403p, 22 U.S.C. 4069c and 4069c-1; subpart L also issued

under sec. 599C of Pub. L. 101-513, 104 Stat. 2064, as amended.

5. Section 890.303 is amended by adding a new paragraph (i) to read

as follows:

Sec. 890.303 Contination of enrollment.

* * * * *

(i) Service in the uniformed services. The enrollment of an

individual who separates to enter the uniformed services under

conditions that entitle him or her to benefits under part 353 of this

chapter may continue for the 18-month period beginning on the date that

the absence to serve in the uniformed services begins, provided that

the individual continues to be entitled to benefits under part 353 of

this chapter. The enrollment of an employee who enters on military

furlough or is placed in nonpay status to serve in the uniformed

services may continue for the 18-month period beginning on the date

that the absence to serve in the uniformed services begins, provided

that the employee continues to be entitled to benefits under part 353

of this chapter. An employee in nonpay status is entitled to continued

coverage under paragraph (e) of this section if the employee's

entitlement to benefits under part 353 of this chapter ends before the

expiration of 365 days in nonpay status. The enrollment of an employee

who is on military furlough or in nonpay status in order to serve in

the uniformed services on October 13, 1994, may continue for the 18-

month period beginning on the date that the absence to serve in the

uniformed services began, provided that the employee continues to be

entitled to continued coverage under part 353 of this chapter. If the

enrollment of such an employee had terminated due to the expiration of

365 days in nonpay status, it may be reinstated for the remainder of

the 18-month period beginning on the date that the absence to serve in

the uniformed services began, provided that the

[[Page 45658]]

employee continues to be entitled to continued coverage under part 353

of this chapter.

6. In Sec. 890.304 paragraph (a)(1) is amended by revising

paragraph (a)(1)(vi) and adding two new paragraphs (a)(1)(vii) and

(viii) to read as follows:

Sec. 890.304 Termination of enrollment.

(a) * * *

(1) * * *

(vi) The day he or she is separated, furloughed, or placed on leave

of absence to serve in the uniformed services under conditions

entitling him or her to benefits under part 353 of this chapter for the

purpose of performing duty not limited to 30 days or less, provided the

employee elects, in writing to have the enrollment so terminated.

(vii) For an employee who separates to serve in the uniformed

services under conditions entitling him or her to benefits under part

353 of this chapter for the purpose of performing duty not limited to

30 days or less, the date that is 18 months after the date that the

absence to serve in the uniformed services began or the date

entitlement to benefits under part 353 of this chapter ends, whichever

is earlier, unless the enrollment is terminated under paragraph

(a)(1)(vi) of this section.

(viii) For an employee who is furloughed or placed on leave of

absence under conditions entitling him or her to benefits under part

353 of this chapter, the date that is 18 months after the date that the

absence to serve in the uniformed services began or the date

entitlement to benefits under part 353 of this chapter ends, whichever

is earlier, but not earlier than the date the enrollment would

otherwise terminate under paragraph (a)(1)(v) of this section.

* * * * *

7. In Sec. 890.305 paragraph (a) is revised to read as follows:

Sec. 890.305 Reinstatement of enrollment after military service.

(a) The enrollment of an employee or annuitant whose enrollment was

terminated under Sec. 890.304(a)(1)(vi), (vii) or (viii) or

Sec. 890.304(b)(4)(iii) is automatically reinstated on the day the

employee is restored to a civilian position under the provisions of

part 353 of this chapter or on the day the annuitant is separated from

the uniformed services, as the case may be.

* * * * *

8. In Sec. 890.501 paragraph (e) is revised and two new paragraphs

(f) and (g) are added to read as follows:

Sec. 890.501 Government contributions.

* * * * *

(e) Except as provided in paragraphs (f) and (g) of this section,

the employing office must make a contribution for an employee for each

pay period during which the enrollment continues.

(f) Temporary employees enrolled under 5 U.S.C. 8906a must pay the

full subscription charge including the Government contribution.

Employees with provisional appointments under Sec. 316.403 are not

considered to be enrolled under 5 U.S.C. 8906a for the purpose of this

paragraph.

(g) The Government contribution for an employee who enters the

uniformed services and whose enrollment continues under Sec. 890.303(i)

ceases after 365 days in nonpay status.

9. In Sec. 890.502 paragraph (g) is revised to read as follows:

Sec. 890.502 Employee withholdings and contributions.

* * * * *

(g) Uniformed services. (1) except as provided in paragraph (g)(2)

of this section, an employee whose coverage continues under section

890.303(i) is responsible for payment of the employee share of the cost

of enrollment for every pay period for which the enrollment continues

for the first 365 days of continued coverage as set forth under

paragraph (b) of this section. For coverage that continues after 365

days in nonpay status, the employee must pay, on a current basis, the

full subscription charge, including both the employee and Government

shares, plus an additional 2 percent of the full subscription charge.

(2) Payment of the employee's share of the cost of enrollment is

waived for the first 365 days of continued coverage in the case of an

employee whose coverage continues under Sec. 890.303(e) following

furlough or placement on leave of absence under the provisions of part

353 of this chapter or under Sec. 890.303(i) if the employee was

ordered to active duty before September 1, 1995 under section 672,

673b, 674, 675, or 688 of title 10, United States Code, in support of

Operation Desert Storm.

* * * * *

[FR Doc. 95-21571 Filed 8-31-95; 8:45 am]

BILLING CODE 6325-01-M