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[House Report 111-118]
[From the U.S. Government Publishing Office]

111th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 1st Session                                                    111-118

======================================================================

 
                    WOUNDED VETERAN JOB SECURITY ACT

                                _______
                                

  May 19, 2009.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

                                _______
                                

  Mr. Filner, from the Committee on Veterans' Affairs, submitted the 
                               following

                              R E P O R T

                        [To accompany H.R. 466]

      [Including cost estimate of the Congressional Budget Office]

  The Committee on Veterans' Affairs, to whom was referred the 
bill (H.R. 466) to amend title 38, United States Code, to 
prohibit discrimination and acts of reprisal against persons 
who receive treatment for illnesses, injuries, and disabilities 
incurred in or aggravated by service in the uniformed services, 
having considered the same, report favorably thereon with 
amendments and recommend that the bill as amended do pass.

                                CONTENTS

                                                                   Page
Amendment........................................................     2
Purpose and Summary..............................................     4
Background and Need for Legislation..............................     4
Hearings.........................................................     4
Subcommittee Consideration.......................................     5
Committee Consideration..........................................     5
Committee Votes..................................................     5
Committee Oversight Findings.....................................     5
Statement of General Performance Goals and Objectives............     5
New Budget Authority, Entitlement Authority, and Tax Expenditures     6
Earmarks and Tax and Tariff Benefits.............................     6
Committee Cost Estimate..........................................     6
Congressional Budget Office Estimate.............................     6
Federal Mandates Statement.......................................     9
Advisory Committee Statement.....................................     9
Constitutional Authority Statement...............................     9
Applicability to Legislative Branch..............................     9
Section-by-Section Analysis of the Legislation...................     9
Changes in Existing Law Made by the Bill as Reported.............    10

                               Amendment

  The amendment is as follows:
  Strike all after the enacting clause and insert the 
following:

SECTION 1. SHORT TITLE.

  This Act may be cited as the ``Wounded Veteran Job Security Act''.

SEC. 2. RIGHTS OF PERSONS WHO RECEIVE TREATMENT FOR ILLNESSES, 
                    INJURIES, AND DISABILITIES INCURRED IN OR 
                    AGGRAVATED BY SERVICE IN THE UNIFORMED SERVICES.

  (a) Rights of Persons Who Receive Treatment.--
          (1) In general.--Subchapter II of chapter 43 of title 38, 
        United States Code, is amended by adding at the end the 
        following new section:

``Sec. 4320. Rights of persons absent from employment for treatment of 
                    service-connected disabilities

  ``(a) Retention.--Subject to subsection (e), a person who is absent 
from a position of employment by reason of the receipt of medical 
treatment for a service-connected disability is entitled to be retained 
by the person's employer.
  ``(b) Seniority.--A person who is absent from employment by reason of 
the receipt of medical treatment for a service-connected disability and 
who is entitled to be retained by the person's employer under 
subsection (a) is entitled to the seniority and other rights and 
benefits determined by seniority that the person had on the date of the 
commencement of such treatment plus the additional seniority and rights 
and benefits that such person would have attained if the person had 
remained continuously employed.
  ``(c) Benefits.--(1) A person who is absent from a position of 
employment by reason of the receipt of medical treatment for a service-
connected disability and who is entitled to be retained by the person's 
employer under subsection (a) shall be--
          ``(A) deemed to be on furlough or leave of absence while 
        receiving such treatment; and
          ``(B) entitled to such other rights and benefits not 
        determined by seniority as are generally provided by the 
        employer of the person to employees having similar seniority, 
        status, and pay who are on furlough or leave of absence under a 
        contract, agreement, policy, practice, or plan in effect at the 
        commencement of such service or established while such person 
        is so absent.
  ``(2)(A) Subject to subparagraph (C), a person described in 
subparagraph (B) is not entitled to rights and benefits under paragraph 
(1)(B).
  ``(B) A person described in this subparagraph is a person who--
          ``(i) is absent from a position of employment by reason of 
        the receipt of medical treatment for a service-connected 
        disability; and
          ``(ii) knowingly provides written notice of intent not to 
        return to a position of employment after receiving such 
        treatment.
  ``(C) For the purposes of subparagraph (A), the employer shall have 
the burden of proving that a person knowingly provided clear written 
notice of intent not to return to a position of employment after being 
absent from employment by reason of the receipt of medical treatment 
and, in doing so, was aware of the specific rights and benefits to be 
lost under subparagraph (A).
  ``(3) A person deemed to be on furlough or leave of absence under 
this subsection while receiving medical treatment for a service-
connected disability shall not be entitled under this subsection to any 
benefits to which the person would not otherwise be entitled if the 
person had remained continuously employed.
  ``(4) Such person may be required to pay the employee cost, if any, 
of any funded benefit continued pursuant to paragraph (1) to the extent 
other employees on furlough or leave of absence are so required.
  ``(5) The entitlement of a person to coverage under a health plan is 
provided for under section 4317 of this title.
  ``(6) The entitlement of a person to a right or benefit under an 
employee pension benefit plan is provided for under section 4318 of 
this title.
  ``(d) Leave.--Any person who is absent from a position of employment 
with an employer by reason of the receipt of medical treatment for a 
service-connected disability shall be permitted, upon request of that 
person, to use during the period during which the person is so absent, 
any vacation, annual, medical, or similar leave with pay accrued by the 
person before the commencement of such period. No employer may require 
any such person to use vacation, annual, family, medical, or similar 
leave during such period.
  ``(e) Exceptions.--(1) An employer is not required to retain a person 
under this section if--
          ``(A) the employer's circumstances have so changed as to make 
        such retention impossible or unreasonable;
          ``(B) such retention would impose an undue hardship on the 
        employer; or
          ``(C) the employment from which the person is absent by 
        reason of the receipt of medical treatment is for a brief, 
        nonrecurrent period and there is no reasonable expectation that 
        such employment will continue indefinitely or for a significant 
        period.
  ``(2) In any proceeding involving an issue of whether (A) any 
retention referred to in paragraph (1) is impossible or unreasonable 
because of a change in an employer's circumstances, (B) such retention 
would impose an undue hardship on the employer, or (C) the employment 
referred to in paragraph (1)(C) is for a brief, nonrecurrent period and 
there is no reasonable expectation that such employment will continue 
indefinitely or for a significant period, the employer shall have the 
burden of proving the impossibility or unreasonableness, undue 
hardship, or the brief or nonrecurrent nature of the employment without 
a reasonable expectation of continuing indefinitely or for a 
significant period.''.
          (2) Clerical amendment.--The table of sections at the 
        beginning of such chapter is amended by inserting after the 
        item relating to section 4319 the following new item:

``4320. Rights of persons absent from employment for treatment of 
service-connected disabilities.''.

  (b) Health Plan.--Section 4317 of title 38, United States Code, is 
amended by adding at the end the following new subsection:
  ``(c) This section shall apply with respect to a person who is absent 
from a position of employment by reason of the receipt of medical 
treatment for a service-connected disability (other than a person 
described in section 4320(c)(2)(B) of this title) on the same basis as 
a person who is absent from a position of employment by reason of 
service in the uniformed services. In the case of a person who is 
absent from a position of employment by reason of the receipt of 
medical treatment for a service-connected disability (other than a 
person described in section 4320(c)(2)(B) of this title), the period 
during which the person is so absent shall be treated as a period of 
service in the uniformed services for purposes of this section.''.
  (c) Employee Pension Benefit Plans.--Section 4318 of title 38, United 
States Code, is amended by adding at the end the following new 
subsection:
  ``(d) This section shall apply with respect to a person who is absent 
from a position of employment by reason of the receipt of medical 
treatment for a service-connected disability (other than a person 
described in section 4320(c)(2)(B) of this title) on the same basis as 
a person who is reemployed under this chapter. In the case of a person 
who is absent from a position of employment by reason of the receipt of 
medical treatment for a service-connected disability (other than a 
person described in section 4320(c)(2)(B) of this title), the period 
during which the person is so absent shall be treated as a period of 
service in the uniformed services for purposes of this section.''.
  (d) Prohibition of Discrimination and Acts of Reprisal.--Section 4311 
of title 38, United States Code, is amended--
          (1) in subsection (a)--
                  (A) by inserting after ``uniformed service'' the 
                following: ``, or who has an illness, injury, or 
                disability determined by the Secretary of Veterans 
                Affairs to have been incurred in or aggravated by such 
                service,''; and
                  (B) by striking ``or obligation'' and inserting 
                ``obligation, or receipt of treatment for that illness, 
                injury, or disability''; and
          (2) in subsection (c)--
                  (A) by striking ``or obligation for service'' the 
                first time it appears and inserting ``obligation for 
                service, or receipt of treatment for an illness, 
                injury, or disability determined by the Secretary of 
                Veterans Affairs to have been incurred in or aggravated 
                by service''; and
                  (B) by striking ``or obligation for service'' the 
                second time it appears and inserting ``obligation for 
                service, or receipt of treatment''.
  (e) Effective Date.--The amendments made by this section shall apply 
with respect to medical treatment received on or after the date of the 
enactment of this Act.

  Amend the title so as to read:

    A bill to amend title 38, United States Code, to provide 
for certain rights and benefits for persons who are absent from 
positions of employment to receive medical treatment for 
service-connected disabilities.

                          Purpose and Summary

    H.R. 466 was introduced on January 13, 2009, by 
Representative Lloyd Doggett of Texas. H.R. 466, as amended, 
seeks to expand Uniformed Services Employment and Reemployment 
Rights Act (USERRA) protections to include servicemembers and 
veterans who have an illness, injury or disability determined 
by the Secretary of the U.S. Department of Veterans Affairs 
(VA) to have been incurred in or aggravated by military 
service.

                  Background and Need For Legislation

    USERRA provides certain employment protections by 
prohibiting discrimination in employment against persons who 
serve, have served or apply to serve in the uniformed services 
to include Reserve forces and National Guard members who are 
mobilized or are on active duty for training. It also prohibits 
acts of reprisal against persons who act to enforce the law.
    USERRA additionally provides that returning servicemembers 
be reemployed in the job they would have attained had they not 
been absent due to military service, with the same seniority, 
status and pay, as well as other rights and benefits determined 
by seniority. This law also requires that reasonable efforts 
(such as training or retraining) be made to enable returning 
servicemembers to refresh or upgrade their skills to help them 
qualify for reemployment. The law provides for alternative 
reemployment positions if the servicemember cannot qualify for 
the position they would have attained if they had not served in 
the U.S. Armed Forces.
    Recognizing the need to reevaluate existing laws to protect 
servicemembers and veterans, Representative Doggett of Texas 
introduced legislation to expand USERRA protections to cover 
servicemembers and veterans whose service connected disability 
requires extended medical care. On March 4, 2009, 
Representative Doggett testified before the Subcommittee on 
Economic Opportunity that over 30,000 troops have been wounded 
as a result of their service in support of Operation Iraqi 
Freedom and Operation Enduring Freedom. Of these, over 8,000 
have suffered from Traumatic Brain Injuries (TBI) and over 
1,200 have required amputation of a limb. Representative 
Doggett also highlighted that such injuries, and others 
encountered by thousands of servicemembers, can pose severe 
obstacles for someone who is attempting to heal and maintain 
employment at the same time.

                                Hearings

    On March 4, 2009, the Subcommittee on Economic Opportunity 
held a legislative hearing on several bills introduced during 
the 111th Congress, including H.R. 466.
    The following witnesses testified: The Honorable Steve 
Israel of New York; The Honorable Peter Welch of Vermont; The 
Honorable Lloyd Doggett of Texas; Mr. Justin Brown, Legislative 
Associate, National Legislative Service, Veterans of Foreign 
Wars of the United States; Ms. Cheryl Beversdorf, RN, MHS, MA, 
President and Chief Executive Officer, National Coalition for 
Homeless Veterans; Mr. John L. Wilson, Associate National 
Legislative Director, Disabled American Veterans; Mr. Mark 
Walker, Assistant Director, National Economic Commission, The 
American Legion; Mr. Thomas Zampieri, Ph.D., Director of 
Government Relations, Blinded Veterans of America; Mr. Patrick 
H. Boulay, Chief, USERRA Unit, U.S. Office of Special Counsel; 
Mr. Keith M. Wilson, Director, Education Service, Veterans 
Benefits Administration, U.S. Department of Veterans Affairs. 
Those submitting statements for the record included: Mr. John 
M. McWilliam, Deputy Assistant Secretary, Veterans' Employment 
and Training Service, U.S. Department of Labor; The Honorable 
Rodney Alexander of Louisiana; The Honorable Steve Buyer of 
Indiana; The Honorable Bob Filner of California; Mr. David 
French, Vice President, Government Relations, International 
Franchise Association; Mr. Thomas S. Whitaker, President and 
Deputy Chairman, North Carolina Employment Security Commission, 
on behalf of National Association of State Workforce Agencies; 
and the Paralyzed Veterans of America.

                       Subcommittee Consideration

    On March 19, 2009, the Subcommittee on Economic Opportunity 
met in open markup session and ordered favorably forwarded to 
the full Committee H.R. 466 by voice vote.

                        Committee Consideration

    On May 6, 2009, the full Committee met in an open markup 
session, a quorum being present, and ordered H.R. 466, as 
amended, reported favorably to the House of Representatives, by 
voice vote. During consideration of the bill the following 
amendment was considered:
    An amendment in the nature of a substitute, offered by Ms. 
Herseth Sandlin of South Dakota allowing employers to prove 
that the bill would impose an undue hardship to the employer 
and bringing the bill language in line with the current 
protections afforded to servicemembers and veterans under 
USERRA, was agreed to by voice vote.

                            Committee Votes

    Clause 3(b) of rule XIII of the Rules of the House of 
Representatives requires the Committee to list the record votes 
on the motion to report the legislation and amendments thereto. 
There were no record votes taken on amendments or in connection 
with ordering H.R. 466 reported to the House. A motion by Mr. 
Buyer of Indiana to order H.R. 466, as amended, reported 
favorably to the House of Representatives was agreed to by 
voice vote.

                      Committee Oversight Findings

    In compliance with clause 3(c)(1) of rule XIII and clause 
(2)(b)(1) of rule X of the Rules of the House of 
Representatives, the Committee's oversight findings and 
recommendations are reflected in the descriptive portions of 
this report.

         Statement of General Performance Goals and Objectives

    In accordance with clause 3(c)(4) of rule XIII of the Rules 
of the House of Representatives, the Committee's performance 
goals and objectives are reflected in the descriptive portions 
of this report.

   New Budget Authority, Entitlement Authority, and Tax Expenditures

    In compliance with clause 3(c)(2) of rule XIII of the Rules 
of the House of Representatives, the Committee adopts as its 
own the estimate of new budget authority, entitlement 
authority, or tax expenditures or revenues contained in the 
cost estimate prepared by the Director of the Congressional 
Budget Office pursuant to section 402 of the Congressional 
Budget Act of 1974.

                  Earmarks and Tax and Tariff Benefits

    H.R. 466 does not contain any congressional earmarks, 
limited tax benefits, or limited tariff benefits as defined in 
clause 9(d), 9(e), or 9(f) of rule XXI of the Rules of the 
House of Representatives.

                        Committee Cost Estimate

    The Committee adopts as its own the cost estimate on H.R. 
466 prepared by the Director of the Congressional Budget Office 
pursuant to section 402 of the Congressional Budget Act of 
1974.

               Congressional Budget Office Cost Estimate

    Pursuant to clause 3(c)(3) of rule XIII of the Rules of the 
House of Representatives, the following is the cost estimate 
for H.R. 466 provided by the Congressional Budget Office 
pursuant to section 402 of the Congressional Budget Act of 
1974:

                                     U.S. Congress,
                               Congressional Budget Office,
                                      Washington, DC, May 19, 2009.
Hon. Bob Filner,
Chairman, Committee on Veterans' Affairs,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 466, the Wounded 
Veteran Job Security Act.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Camille 
Woodland.
            Sincerely,
                                      Douglas W. Elmendorf,
                                                          Director.
    Enclosure.

H.R. 466--Wounded Veteran Job Security Act

    Summary: H.R. 466 would protect veterans from losing their 
jobs when they are absent from work in order to receive medical 
treatment for service-connected disabilities and would allow 
them to retain seniority, health, pension, and other benefits. 
CBO estimates that implementing the bill would cost $6 million 
over the 2010-2014 period, assuming the appropriation of the 
necessary amounts. In addition, CBO estimates that enacting 
H.R. 466 would reduce revenues by $15 million over the 2010-
2019 period and would have an insignificant effect on direct 
spending.
    The requirements on employers to retain veterans as 
employees and to provide certain benefits would be 
intergovernmental and private-sector mandates as defined in the 
Unfunded Mandates Reform Act (UMRA). CBO estimates that the 
costs of complying with the mandates would fall below the 
annual thresholds established in UMRA for both 
intergovernmental and private-sector mandates ($69 million and 
$139 million in 2009, respectively, adjusted annually for 
inflation).
    Estimated cost to the Federal Government: The estimated 
budgetary impact of H.R. 466 is shown in the following table. 
The discretionary costs of this legislation fall within budget 
functions that include employee pay and benefits. The direct 
spending costs fall within budget function 600 (income 
security).

--------------------------------------------------------------------------------------------------------------------------------------------------------

           By fiscal year in millions of dollars--           -------------------------------------------------------------------------------------------
                                                               2010   2011   2012   2013   2014   2015   2016   2017   2018   2019  2010-2014  2010-2019
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                 CHANGES IN REVENUES\1\

Estimated Revenues..........................................     -1     -1     -1     -1     -1     -2     -2     -2     -2     -2        -6        -15

                                                      CHANGES IN SPENDING SUBJECT TO APPROPRIATION

Estimated Authorization Level...............................      1      1      1      1      1      1      1      1      2      2         6         13
Estimated Outlays...........................................      1      1      1      1      1      1      1      1      2      2         6         13
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\a. Negative numbers indicate a reduction in revenues and an increase in the deficit.

Notes.--CBO estimates that the direct spending costs of this bill would total less than $500,000 over the 2010-2019 period. Components may not sum to
  totals because of rounding.

    Basis of estimate: For this estimate, CBO estimates that 
H.R. 466 will be enacted near the end of fiscal year 2009 and 
that the necessary amounts will be appropriated for each year 
beginning in 2010.

Revenues

    H.R. 466 would result in higher matching contributions by 
private-sector employers into 401(k) plans. Higher 
contributions, in turn, would result in more of an employee's 
compensation being received in the form of tax-deferred 
retirement contributions, and less in the form of taxable 
wages. As a result of this shift, federal revenues from income 
and payroll taxes would decline. CBO estimates that revenues 
would be reduced by $15 million over the 2010-2019 period. 
Social Security payroll taxes, which are off-budget, would 
account for about $5 million of that amount.

Spending Subject to Appropriation

    The federal government would bear the increased cost of 
employee benefits for veterans who are federal employees and 
who would take leave from work under this bill; however, many 
of the protections available to veterans under this bill 
already exist in current law, and would not increase costs to 
the federal government. Under Executive Order 5396, disabled 
veterans employed by the Executive Branch are entitled to 
leave-without-pay in order to receive necessary medical 
treatment. Employees of the federal government who have been at 
their jobs for at least a year are already allowed to take up 
to 12 weeks of unpaid leave for certain medical reasons and 
retain their health care benefits under the Family and Medical 
Leave Act (FMLA). In addition, benefit and leave policies 
throughout the federal government allow individuals in leave-
without-pay status to continue to be eligible for health 
insurance, retirement, and other benefits for up to a year.
    Under current law, federal employees taking unpaid leave 
cannot contribute to or receive a matching contribution from 
their employers to their Thrift Savings Plan (TSP), the 
retirement savings and investment plan for federal employees. 
H.R. 466 would allow eligible veterans to make the missed TSP 
contributions after they return to work. The employing agency 
would then be required to make a matching contribution. Based 
on information from the Department of Veterans Affairs and 
usage and benefit rates for FMLA, CBO estimates that 
approximately 9,400 eligible veterans who are federal employees 
would take leave under H.R. 466 annually. Based on TSP 
participation rates from the U.S. Office of Personnel 
Management, CBO estimates that approximately 5,700 veterans 
annually (or 60 percent) would contribute to their TSP after 
returning to work and would receive a 3 percent matching 
contribution. Assuming an average leave period of one month, 
the employer cost would be approximately $200 per employee. CBO 
estimates that the cost to the federal government for the 
matching contributions would be approximately $1 million in the 
first year, and $5 million over the 2010-2014 period, assuming 
the availability of appropriated funds.
    CBO estimates that there would be a relatively small cost 
for benefits for employees not covered under FMLA, but who 
would be allowed to take unpaid leave under this bill. This 
would include new employees of less than a year and individuals 
who needed more than 12 weeks of leave. CBO estimates these 
costs would total about $1 million over the 2010-2014 period.

Direct Spending

    H.R. 466 also would have a relatively small direct spending 
cost for increased retirement payments for federal employees. 
Under current law and policy, individuals on unpaid leave for 
more than six months in one year receive a reduced retirement 
benefit under the Federal Employees Retirement System. Under 
H.R. 466, individuals taking over six months of leave-without-
pay would not have their retirement benefits reduced. CBO 
expects the increases in retirement payments under this bill to 
be small; most of the increase in spending would occur outside 
the 10-year budget projection period. We estimate that the 
increased retirement payments would increase direct spending by 
an insignificant amount over the 2010-2019 period.
    Intergovernmental and Private-Sector Impact: H.R. 466 would 
impose intergovernmental and private-sector mandates as defined 
in UMRA on employers of veterans who miss work for a period of 
time due to medical treatment for a service-connected injury. 
The bill would require employers to retain such veterans as 
employees, and grant them seniority and other rights and 
benefits as if they had not been absent. Those rights to 
employment, seniority, and benefits would accrue to veterans 
regardless of their length of employment. Benefit levels would, 
however, be limited to those provided to similar employees. 
Based on leave and benefits data for individuals who are 
covered by FMLA, CBO estimates that the costs of the mandates 
would fall below the annual thresholds established in UMRA for 
both intergovernmental and private-sector mandates ($69 million 
and $139 million in 2009, respectively, adjusted annually for 
inflation).
    Section 4 of UMRA excludes from the application of that act 
any legislative provisions that establish or enforce any 
statutory rights that prohibit discrimination on the basis of 
race, color, religion, sex, national origin, age, handicap, or 
disability. CBO has determined that section 3(d) of the bill 
would fall within that exclusion and has not reviewed the 
section for mandates.
    Estimate prepared by: Federal Spending: Camille Woodland; 
Federal Revenues: Zachary Epstein; Impact on State, Local, and 
Tribal Governments: Lisa Ramirez-Branum; Impact on the Private 
Sector: Elizabeth Bass.
    Estimate approved by: Theresa Gullo, Deputy Assistant 
Director for Budget Analysis.

                       Federal Mandates Statement

    The Committee adopts as its own the estimate of Federal 
mandates regarding H.R. 466 prepared by the Director of the 
Congressional Budget Office pursuant to section 423 of the 
Unfunded Mandates Reform Act.

                      Advisory Committee Statement

    No advisory committees within the meaning of section 5(b) 
of the Federal Advisory Committee Act would be created by H.R. 
466.

                   Constitutional Authority Statement

    Pursuant to clause 3(d)(1) of rule XIII of the Rules of the 
House of Representatives, the Committee finds that the 
Constitutional authority for H.R. 466 is provided by Article I, 
section 8 of the Constitution of the United States.

                  Applicability to Legislative Branch

    The Committee finds that the legislation does not relate to 
the terms and conditions of employment or access to public 
services or accommodations within the meaning of section 
102(b)(3) of the Congressional Accountability Act.

             Section-by-Section Analysis of the Legislation

Section 1. Short title

    This section provides the short title of H.R. 466, as 
amended, as the ``Wounded Veteran Job Security Act.''

Section 2. Rights of persons who receive treatment for illnesses, 
        injuries, and disabilities incurred or aggravated by service in 
        the uniformed services.

    This section would add a new section 4320 to Subchapter II 
of Chapter 43 of title 38 to expand Uniformed Services 
Employment and Reemployment Rights Act (USERRA) protections to 
include servicemembers and veterans who have an illness, injury 
or disability determined by the Secretary of the U.S. 
Department of Veterans Affairs to have been incurred in, or 
aggravated by, military service.
    This new section would provide that service-connected 
disabled veterans who seek medical attention would have USERRA 
protections for seniority, status, retention, and pay as well 
as other rights and benefits determined by employment.
    This section provides the employer the opportunity to 
terminate the leave provided to the veteran under this section 
if the employer's circumstances have changed so as to make such 
retention impossible or unreasonable, it is proven that such 
leave would impose an undue hardship to the employer, or there 
is no reasonable expectation that such employment will continue 
indefinitely or for a significant period.
    This section provides that amendments made by this section 
shall apply to medical treatment received on or after the date 
of enactment of this act.

         Changes in Existing Law Made by the Bill, as Reported

  In compliance with clause 3(e) of rule XIII of the Rules of 
the House of Representatives, changes in existing law made by 
the bill, as reported, are shown as follows (existing law 
proposed to be omitted is enclosed in black brackets, new 
matter is printed in italic, existing law in which no change is 
proposed is shown in roman):

TITLE 38, UNITED STATES CODE

           *       *       *       *       *       *       *

PART III--READJUSTMENT AND RELATED BENEFITS

           *       *       *       *       *       *       *

   CHAPTER 43--EMPLOYMENT AND REEMPLOYMENT RIGHTS OF MEMBERS OF THE 
                           UNIFORMED SERVICES

                          SUBCHAPTER I--GENERAL

Sec.
4301.  Purposes; sense of Congress.
     * * * * * * *

   SUBCHAPTER II--EMPLOYMENT AND REEMPLOYMENT RIGHTS AND LIMITATIONS; 
                              PROHIBITIONS

     * * * * * * *
4320.  Rights of persons absent from employment for treatment of 
          service-connected disabilities.

           *       *       *       *       *       *       *

  SUBCHAPTER II--EMPLOYMENT AND REEMPLOYMENT RIGHTS AND LIMITATIONS; 
                              PROHIBITIONS

Sec. 4311. Discrimination against persons who serve in the uniformed 
                    services and acts of reprisal prohibited

  (a) A person who is a member of, applies to be a member of, 
performs, has performed, applies to perform, or has an 
obligation to perform service in a uniformed service, or who 
has an illness, injury, or disability determined by the 
Secretary of Veterans Affairs to have been incurred in or 
aggravated by such service, shall not be denied initial 
employment, reemployment, retention in employment, promotion, 
or any benefit of employment by an employer on the basis of 
that membership, application for membership, performance of 
service, application for service, [or obligation] obligation, 
or receipt of treatment for that illness, injury, or 
disability.

           *       *       *       *       *       *       *

  (c) An employer shall be considered to have engaged in 
actions prohibited--
          (1) under subsection (a), if the person's membership, 
        application for membership, service, application for 
        service, [or obligation for service] obligation for 
        service, or receipt of treatment for an illness, 
        injury, or disability determined by the Secretary of 
        Veterans Affairs to have been incurred in or aggravated 
        by service in the uniformed services is a motivating 
        factor in the employer's action, unless the employer 
        can prove that the action would have been taken in the 
        absence of such membership, application for membership, 
        service, application for service, [or obligation for 
        service] obligation for service, or receipt of 
        treatment; or

           *       *       *       *       *       *       *

Sec. 4317. Health plans

  (a)  * * *

           *       *       *       *       *       *       *

  (c) This section shall apply with respect to a person who is 
absent from a position of employment by reason of the receipt 
of medical treatment for a service-connected disability (other 
than a person described in section 4320(c)(2)(B) of this title) 
on the same basis as a person who is absent from a position of 
employment by reason of service in the uniformed services. In 
the case of a person who is absent from a position of 
employment by reason of the receipt of medical treatment for a 
service-connected disability (other than a person described in 
section 4320(c)(2)(B) of this title), the period during which 
the person is so absent shall be treated as a period of service 
in the uniformed services for purposes of this section.

Sec. 4318. Employee pension benefit plans

  (a)  * * *

           *       *       *       *       *       *       *

  (d) This section shall apply with respect to a person who is 
absent from a position of employment by reason of the receipt 
of medical treatment for a service-connected disability (other 
than a person described in section 4319(c)(2)(B) of this title) 
on the same basis as a person who is reemployed under this 
chapter. In the case of a person who is absent from a position 
of employment by reason of the receipt of medical treatment for 
a service-connected disability (other than a person described 
in section 4320(c)(2)(B) of this title), the period during 
which the person is so absent shall be treated as a period of 
service in the uniformed services for purposes of this section.

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Sec. 4320. Rights of persons absent from employment for treatment of 
                    service-connected disabilities

  (a) Retention.--Subject to subsection (e), a person who is 
absent from a position of employment by reason of the receipt 
of medical treatment for a service-connected disability is 
entitled to be retained by the person's employer.
  (b) Seniority.--A person who is absent from employment by 
reason of the receipt of medical treatment for a service-
connected disability and who is entitled to be retained by the 
person's employer under subsection (a) is entitled to the 
seniority and other rights and benefits determined by seniority 
that the person had on the date of the commencement of such 
treatment plus the additional seniority and rights and benefits 
that such person would have attained if the person had remained 
continuously employed.
  (c) Benefits.--(1) A person who is absent from a position of 
employment by reason of the receipt of medical treatment for a 
service-connected disability and who is entitled to be retained 
by the person's employer under subsection (a) shall be--
          (A) deemed to be on furlough or leave of absence 
        while receiving such treatment; and
          (B) entitled to such other rights and benefits not 
        determined by seniority as are generally provided by 
        the employer of the person to employees having similar 
        seniority, status, and pay who are on furlough or leave 
        of absence under a contract, agreement, policy, 
        practice, or plan in effect at the commencement of such 
        service or established while such person is so absent.
  (2)(A) Subject to subparagraph (C), a person described in 
subparagraph (B) is not entitled to rights and benefits under 
paragraph (1)(B).
  (B) A person described in this subparagraph is a person who--
          (i) is absent from a position of employment by reason 
        of the receipt of medical treatment for a service-
        connected disability; and
          (ii) knowingly provides written notice of intent not 
        to return to a position of employment after receiving 
        such treatment.
  (C) For the purposes of subparagraph (A), the employer shall 
have the burden of proving that a person knowingly provided 
clear written notice of intent not to return to a position of 
employment after being absent from employment by reason of the 
receipt of medical treatment and, in doing so, was aware of the 
specific rights and benefits to be lost under subparagraph (A).
  (3) A person deemed to be on furlough or leave of absence 
under this subsection while receiving medical treatment for a 
service-connected disability shall not be entitled under this 
subsection to any benefits to which the person would not 
otherwise be entitled if the person had remained continuously 
employed.
  (4) Such person may be required to pay the employee cost, if 
any, of any funded benefit continued pursuant to paragraph (1) 
to the extent other employees on furlough or leave of absence 
are so required.
  (5) The entitlement of a person to coverage under a health 
plan is provided for under section 4317 of this title.
  (6) The entitlement of a person to a right or benefit under 
an employee pension benefit plan is provided for under section 
4318 of this title.
  (d) Leave.--Any person who is absent from a position of 
employment with an employer by reason of the receipt of medical 
treatment for a service-connected disability shall be 
permitted, upon request of that person, to use during the 
period during which the person is so absent, any vacation, 
annual, medical, or similar leave with pay accrued by the 
person before the commencement of such period. No employer may 
require any such person to use vacation, annual, family, 
medical, or similar leave during such period.
  (e) Exceptions.--(1) An employer is not required to retain a 
person under this section if--
          (A) the employer's circumstances have so changed as 
        to make such retention impossible or unreasonable;
          (B) such retention would impose an undue hardship on 
        the employer; or
          (C) the employment from which the person is absent by 
        reason of the receipt of medical treatment is for a 
        brief, nonrecurrent period and there is no reasonable 
        expectation that such employment will continue 
        indefinitely or for a significant period.
  (2) In any proceeding involving an issue of whether (A) any 
retention referred to in paragraph (1) is impossible or 
unreasonable because of a change in an employer's 
circumstances, (B) such retention would impose an undue 
hardship on the employer, or (C) the employment referred to in 
paragraph (1)(C) is for a brief, nonrecurrent period and there 
is no reasonable expectation that such employment will continue 
indefinitely or for a significant period, the employer shall 
have the burden of proving the impossibility or 
unreasonableness, undue hardship, or the brief or nonrecurrent 
nature of the employment without a reasonable expectation of 
continuing indefinitely or for a significant period.

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