Reemployment Rights of Employees Performing Military Duty

OFFICE OF PERSONNEL MANAGEMENT

5 CFR Parts 213, 353, 870, and 890

RINS 3206-AG02 and 3206-AH15

Reemployment Rights of Employees Performing Military Duty

AGENCY: Office of Personnel Management.

ACTION: Final regulations.

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

regulations to implement the provisions of the Uniformed Services

Employment and Reemployment Rights Act of 1994 (USERRA) which was

enacted into law on October 13, 1994. The law and these regulations

safeguard the job rights of Federal employees who leave their

employment to perform duty with the uniformed services.

These 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. The regulations were developed in consultation

with the Departments of Labor and Defense.

EFFECTIVE DATE: July 12, 1999.

FOR FURTHER INFORMATION CONTACT: For parts 213 or 353: Raleigh M.

Neville, (202) 606-0830. For parts 870 or 890: Abby L. Block, (202)

606-0004.

SUPPLEMENTARY INFORMATION: OPM published for comment on September 1,

1995 (at 60 FR 45650), and October 30, 1995 (at 60 FR 55173), interim

regulations implementing the new USERRA law.

Comments on Part 353

We received comments from two agencies on the restoration-to-duty

aspect of the law in 5 CFR part 353. We also received two comments from

an agency on the health and life insurance changes in parts 870 and

890.

Section 4314 of title 38, United States Code, enacted as part of

USERRA, requires OPM to place in other agencies a National Guard

technician when the adjutant general of a State determines that it is

``impossible or unreasonable'' to reemploy the person in a dual status

military/civilian technician position.

One commenter suggested that we make clear in the final regulations

that National Guard technicians who fail to maintain active military

membership in the Guard for reasons within their control (such as

misconduct, military retirement, failure to meet weight or security

requirements, etc.) are not eligible for the special mandatory

placement in other agencies provided under section 4314 of title 38.

We agree that the law was not intended to provide a mandatory

placement right in other agencies for Guard technicians who lose their

military membership for reasons within their control. To do so would be

to extend an extraordinary employment benefit to Guard technicians far

beyond that accorded to any other group--including disabled combat

veterans and others who have lost Federal jobs for reasons outside

their control. Such a placement provision would also be contrary to the

stated purpose of USERRA--which is to encourage and protect ``noncareer

service'' that lasts no more than a cumulative total of 5 years, with

some exceptions for training and emergency call-ups. (See 38 U.S.C.

4301)

Such a policy would also be inconsistent with 5 U.S.C. 3329--a

provision that was enacted specifically to protect long-term Guard

members, but which, significantly, provides only for priority placement

in the Department of Defense, not mandatory placement in other

agencies. (This is just one of a number of special protections already

provided for technicians; for example, 5 U.S.C. 3304 gives technicians

who are removed involuntarily a 1-year window of opportunity to be

appointed noncompetitively to another civil service job.)

Finally, National Guard technicians knew that they were making a

career decision when they volunteered for extended active duty with the

Guard. These technicians were not merely absent from their technician

positions (as envisioned by the law); rather, they had abandoned their

jobs in order to pursue careers in the military. Interruption of that

career for reasons within the individual's control should no more

entitle the Guard member to mandatory job rights in another agency than

would loss of Reserve membership for a Reservist or, for that matter,

loss of a career choice for any other Government or private sector

employee. We have, therefore, amended final regulation 5 CFR

353.110(a)(1)(iii) accordingly.

This commenter also suggested that we amend 5 CFR 353.211 to make

clear that, because the term ``employer,'' as it pertains to National

Guard technicians, means the Adjutant General of a State, these

technicians may no longer appeal to the Merit Systems Protection Board

(MSPB) a State's failure to reemploy them; they must now go to court.

We have made this change. (Note, however, that this does not affect a

technician's right to appeal to MSPB OPM's failure to place the

individual under 38 U.S.C. 4314(d).)

A commenter suggested that we delete the word ``substantially'' in

the third sentence in 5 CFR 353.108 (pertaining to the effect of

performance and conduct on restoration rights for both injured

employees and those on military duty), saying that this ``will

eliminate the suggestion that something less than substantial is

acceptable.'' Actually, this section says that an employee may not be

denied restoration rights unless he or she was separated ``for cause

that is substantially unrelated to the injury or to the performance of

uniformed service.'' There is no implication that restoration can be

denied when the separation was something less than ``substantially

unrelated'' to the injury or military duty. This standard will be

maintained.

This commenter also suggested that in 5 CFR 353.109 (concerning a

transfer of function to another agency), we substitute the words from

the statute ``of like seniority, status, and pay'' for ``equivalent''

in denoting the position to which the position to which the person is

entitled. Actually, ``equivalent position,'' in this context, has long

been interpreted as ``like seniority, status, and pay.'' We note, too,

that ``seniority'' is already included in the definition of ``status.''

We did not include the term

[[Page 31486]]

separately, here, however, because seniority is not typically a factor

for Federal positions and is thus not commonly used.

This commenter also questions whether OPM should create a 30-day

standard in 5 CFR 353.207 by which time agencies must restore an

employee who has been absent on military duty for more than 30 days.

The agency suggests that it may be preferable to require prompt or

reasonable reemployment, instead. The 30-day standard has been in

effect for many years and has been consistently applied by MSPB in such

a way as to require prompt and reasonable reemployment by an agency. In

this connection, it should be noted that 30 days is the maximum an

agency can delay a restoration. It is conceivable that by changing this

to a standard without a definite time limit, situations may devolve in

which it may be considered ``reasonable'' for an agency to restore

someone long after 30 days have elapsed.

Because of questions about the applicability of USERRA and other

laws to U.S. citizens located outside of the United States, one

commenter suggested that we clarify what USERRA does, in fact, cover

civil service employees stationed overseas. We have amended 5 CFR

353.103 to do so.

Other comments dealt with editorial and clerical errors.

Comments on Parts 870 and 890

OPM received two comments from a Federal agency on the interim

regulations. One commenter suggested that the sentence added at the end

of 5 CFR 870.501(d) be added to section 870.501(a) instead. Although we

did not accept this suggestion as stated, we amended paragraph section

870.501(a) to clarify that the last sentence of section 870.501(d) is

an exception. We also eliminated the words ``in nonpay status'' from

the last sentence of section 870.501(d) because it is possible to be in

a pay status and eligible for USERRA benefits at the same time.

These changes were incorporated into the final FEGLI regulations

that were published in the Federal Register on September 17, 1997 (62

FR 48731).

One commenter objected to three phrases in 5 CFR 890.303(i) and one

in section 890.304: (1) ``on the date that the absence to serve in the

uniform services begins,'' (2) ``enters on military furlough or,'' (3)

``provided the employee continues to be entitled to benefits under part

353,'' and (4) ``or the date entitlement to of this chapter.'' Since

these phrases reflect the requirements of USERRA, we cannot accept this

suggestion. For example, under the provisions of USERRA a separated

employee who leaves military service and does not return to his or her

civilian position within the time limit set by the law loses

eligibility for continued health benefits coverage.

One commenter suggests we delete the words ``but not earlier than

the date the enrollment would otherwise terminate under paragraph

(a)(1)(v)'' as not applicable to employees with continued coverage

under USERRA. (See 5 CFR 390.304) Paragraph (a)(1)(v) reflects the

provisions of the FEHB law and regulations giving employees who are in

nonpay status continued entitlement to FEHB coverage for 365 days. The

FEHB entitlement remains even if entitlement to coverage under USERRA

is lost. Therefore, we have not accepted this suggestion.

One commenter suggests amending the interim regulations to specify

that the regulations apply to employees who met the requirements of

USERRA on October 13, 1994, so that they would cover employees whose

insurance terminated due to separation for military service, but who

met the USERRA requirements on or after that date. We have amended the

interim regulations to clarify that they apply to separated employees

as well as employees in nonpay status who met the USERRA requirements

on October 13, 1994.

Both commenters object to the requirement that the employee pay the

full premium (both employee and Government shares) plus an additional 2

percent after the initial 365 days of coverage. One commenter also

objects to the requirement that the employee pay premiums on a current

basis after the first 365 days. There is no statutory authority for the

Government to pay its share for coverage beyond 365 days, nor is there

statutory authority for OPM to waive the Government share after 365

days in nonpay status. Therefore, employees must pay it. Further, since

USERRA is patterned after COBRA, 29 U.S.C. 1161, et seq., (which

requires private sector employers to provide continued group health

coverage to separated employees for a period of 18 months at a cost to

the individual of up to 102 percent of the premium), we have patterned

these regulations after the temporary continuation of coverage (TCC)

provision of the FEHB law, 5 U.S.C. 8905(a), (the FEHB equivalent to

COBRA) to the extent applicable. The TCC provisions are not applicable

for the first 365 days because, under FEHB law and regulation, the

employees and the Government continue to pay their respective shares

for that period.

Both the FEGLI and FEHB regulations have been amended to show that

employees who separate to perform military service are considered to be

employees for the purpose of continuing these benefits. The FEHB

regulations have also been amended to show that FEHB coverage may

continue for up to 18 months after the employee enters military

service.

In addition to these changes, we added the phrase ``or similar

authority'' each time we refer to 5 CFR part 353 in the FEGLI and FEHB

regulations. This change clarifies that the FEGLI and FEHB provisions

also apply to entities covered by the FEGLI and FEHB regulations but

not by part 353.

The interim regulations for part 870 were adopted as final and

published in the Federal Register on September 17, 1997.

Technical and Clarifying Amendments

We have amended the final regulations to reflect perfecting changes

made by the Veterans' Benefits Improvements Act of 1996 (which includes

USERRA technical amendments), enacted into law on October 9, 1996.

We have also amended 5 CFR 353.106(c) to provide that agencies not

only have an obligation to consider employees absent on military duty

for any promotion they may have been entitled to, but also to any

``incident or advantage of employment.''

These regulations were developed in consultation with the

Departments of Labor and Defense.

Regulatory Flexibility Act

I certify that these regulations will not have a significant

economic impact on a substantial number of small entities because it

pertains only to Federal agencies.

List of Subjects in Parts 213, 353, 870, and 890

Administrative practice and procedure, Government employees, Health

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

Kuwait, Lebanon, Life insurance, Reporting and recordkeeping

requirements, Retirement.

Office of Personnel Management.

Janice R. Lachance,

Director.

Accordingly, OPM is adopting the interim regulations amending 5 CFR

parts 213, 353, 870, and 890, which were published at 60 FR 45650 and

60 FR 55173 on September 1, 1995, and October 30, 1995, respectively,

as final regulations with the following changes:

[[Page 31487]]

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

INJURY

1. The authority citation for 5 CFR part 353 continues to read as

follows:

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

2. Section 353.103 is amended by revising the first sentence in

paragraph (a) to read as follows:

Sec. 353.103 Persons covered.

(a) The provisions of this part pertaining to the uniformed

services cover each agency employee who enters into such service

regardless of whether the employee is located in the United States or

overseas. * * *

* * * * *

3. Section 353.106 is amended by adding a new sentence at the end

of paragraph (c) and by adding paragraphs (c)(1), (c)(2), and (c)(3) to

read as follows:

Sec. 353.106 Personnel actions during employee's absence.

* * * * *

(c) * * * In addition, agencies have an obligation to consider

employees absent on military duty for any incident or advantage of

employment that they may have been entitled to had they not been

absent. This is determined by:

(1) Considering whether the ``incident or advantage'' is one

generally granted to all employees in that workplace and whether it was

denied solely because of absence for military service;

(2) Considering whether the person absent on military duty was

treated the same as if the person had remained at work; and

(3) Considering whether it was reasonably certain that the benefit

would have accrued to the employee but for the absence for military

service.

4-5. In Sec. 353.110 paragraph (a)(2) is amended by removing the

word ``time'' from the first sentence and paragraph (a)(1)(iii) is

revised to read as follows:

Sec. 353.110 OPM placement assistance.

(a) * * *

(1) * * *

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

State determines that it is impossible or unreasonable to reemploy a

technician otherwise eligible for restoration under 38 U.S.C. 4304 and

4312 (pertaining to character and length of service), and the

technician is a noncareer military member who was separated

invountarily from the Guard for reasons beyond his or her control; and

* * * * *

6. Section 353.203(a)(4)(ii) is revised to read as follows:

Sec. 353.203 Length of service.

(a) * * *

(4) * * *

(ii) Ordered to or retained 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, as determined by

the Secretary concerned.

* * * * *

Sec. 353.208 [Amended]

7. Section 353.208 is amended by removing the number 6 before the

word ``permitted'' in the first sentence of the section.

8. Section 353.210 is revised to read as follows:

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 resolve employment disputes brought to

investigate. If dispute resolution proves unsuccessful, VETS will, at

the request of the employee, refer the matter to the Office of the

Special Counsel for representation before the Merit Systems Protection

Board (MSPB).

9. In Sec. 353.211 paragraph (b) is amended by adding two new

sentences at the end to read as follows:

Sec. 353.211 Appeal rights.

* * * * *

(b) * * * However, National Guard technicians do not have the right

to appeal to MSPB a denial of reemployment rights by the Adjutant

General. Technicians may file complaints with the appropriate district

court in accordance with 38 U.S.C. 4323 (USERRA).

PART 890--FEDERAL EMPLOYEES HEALTH BENEFITS PROGRAM

10. The authority citation for part 890 is revised to read as

follows:

Authority: 5 U.S.C. 8913; Sec. 890.102(f) also issued under sec.

153 of Pub. L. 104-134, 110 Stat 1321; section 890.803 also issued

under 50 U.S.C. 403p, 22 U.S.C. 4069c and 4069c-1; subpart L is also

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

amended.

11. Section 890.303 is amended by revising paragraph (i) to read as

follows:

Sec. 890.303 Continuation 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, or similar authority, 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, or similar authority. 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 service begins, provided that the employee continues to

be entitled to benefits under part 353 of this chapter, or similar

authority. 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, or similar

authority, ends before the expiration of 365 days in nonpay status. The

enrollment of an employee who met the requirements of chapter 43 of

title 38, United States Code, 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, or

similar authority. If the enrollment of such an employee had terminated

due to the expiration of 365 days in nonpay status or because of the

employee's separation from service, it may be reinstated for the

remainder of the 18-month period beginning on the date that the absence

to service in the uniformed service began, provided that the employee

continues to be entitled to continued coverage under part 353 of this

chapter, or similar authority.

12. In Sec. 890.304 paragraphs (a)(1)(vi), (a)(1)(vii), and

(a)(1)(viii) are revised 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, or

similar authority, 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

[[Page 31488]]

conditions entitling him or her to benefits under part 353 of this

chapter, or similar authority, 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, or similar

authority, 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, or similar authority, 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, or similar authority, ends, whichever is earlier, but not

earlier than the date the enrollment would otherwise terminate under

paragraph (a)(1)(v) of this section.

* * * * *

13. 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 similar authority, or on the day the

annuitant is separated from the uniformed services, as the case may be.

* * * * *

14. In Sec. 890.501 paragraphs (e), (f), and (g) are revised 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 of this

chapter are not considered to be enrolled under 5 U.S.C. 8906a for the

purposes 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.

15. In Sec. 890.502 paragraph (f) is revised to read as follows:

Sec. 890.502 Employee withholdings and contributions.

* * * * *

(f) Uniformed services. (1) Except as provided in paragraph (f)(2)

of this section, an employee whose coverage continues under

Sec. 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 similar authority, or under Sec. 890.303(i) if

the employee was ordered to active duty before September 1, 1995, under

section 12301, 12304, 12306, 12307, or 688 of title 10, United States

Code, in support of Operation Desert Storm.

[FR Doc. 99-14846 Filed 6-10-99; 8:45 am]

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