Office of Personnel Management

Retirement and Insurance Group

1920 1954 1959 

 

1986 

Benefits Administration Letter

Number: 95-202 Date: January 10, 1995 

SUBJECT: Public Law 103-353, the Uniformed Services Employment and

Reemployment Rights Act of 1994

The purpose of this letter is to transmit the attached memorandum

to the Interagency Advisory Group to Insurance Officers and

Retirement Counselors. Information about health benefits, life

insurance, retirement, and effective dates is on pages 6 through 8.

Abby L. Block, Chief

Insurance Policy Division

Attachment
INTERAGENCY ADVISORY GROUP

UNITED STATES

OFFICE OF PERSONNEL MANAGEMENT

WASHINGTON, DC 20415

Secretariat

 1900 E St., NW

DEC. 7, 1994

 

MEMORANDUM FOR: DIRECTORS OF PERSONNEL

FROM: LEONARD R. KLEIN

 ASSOCIATE DIRECTOR

 CAREER ENTRY GROUP

SUBJECT: Implementing the New Uniformed Services

Employment and Reemployment Rights Act of

1994

On October 13, 1994, President Clinton signed into law the new

Uniformed Services Employment and Reemployment Rights Act of

1994 (USERRA), Public Law 103-353. This new law completely

re-writes chapter 43 of title 38, United States Code,

governing the rights of employees who perform military duty

and makes many changes that will affect employees, agencies,

and OPM. The purpose of this Memorandum is to alert you to

the key provisions of the new law. We will also issue interim

regulations to implement the law as it pertains to federal

agencies and OPM. However, because our regulations must be

consistent with the Department of Labor's regulations

(governing the private sector and State and local governments)

and must be coordinated with the Defense Department, we expect

that this process will take some months. In the meantime,

however, we urge that agency officials responsible for this

area familiarize themselves with the new law, a copy of which

is attached.

COVERAGE

- The new law covers persons who perform duty in the

"uniformed services." This includes not only the armed forces

but also the National Guard when engaged in active duty for

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

the commissioned corps of the Public Health Service.

- The new law covers all employees except those serving in

positions where there is "no reasonable expectation that

employment will continue indefinitely or for a significant

period." We anticipate providing by regulation that employees

are covered if their appointments are for more than 1 year.

- For the first time, employees of the intelligence agencies
(CIA, FBI, NSA, etc.) are treated differently under this law. 

Although these employees have substantially the same
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restoration 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.

MAXIMUM CUMULATIVE PERIOD OF SERVICE

- For the first time, the law makes clear that it is intended

to protect the job rights of noncareer service persons.

Accordingly, the law generally establishes a 5-year cumulative

total on military service with a single employer (in this

case, the Federal Government), with certain exceptions allowed

for call-ups during emergencies, for Reserve drills and

annually scheduled active duty for training, etc. USERRA also

allows an employee to complete an initial period of active

duty that exceeds 5 years. For example, enlistees in the

Navy's nuclear power program are required to serve 6 years.

Service that a person performed before starting Federal

civilian employment does not count toward the 5-year total.

RESTORATION RIGHTS

- The new law accords restoration rights based on the

duration of military service rather than the type of military

duty performed (e.g., active duty for training, inactive duty,

etc.). This is a more rational and equitable approach in that

both the employee and the agency are primarily affected by the

length of the absence, not the type of duty performed.

- Thus, under the new law, if the period of military service

was for:

 

o less than 91 days the employee must be placed in the

position for which qualified that he would have attained

had his employment not been interrupted;

o more than 90 days the employee has the same restoration

rights as above except that he can also be placed in a

position of like seniority, status and pay.

- In either case, the employee can be returned to the

position he left only if he is not qualified to perform the

position to which he would otherwise be entitled after

reasonable efforts by the agency to qualify the employee.

- If the employee has incurred a service-connected disability

and thereby cannot qualify for the position to which he would

otherwise be entitled after reasonable efforts by the agency

to qualify him, he is entitled to be placed in a position of
like seniority, status and pay if qualified, or in a position

that affords the nearest approximation thereof if not

qualified, consistent with the circumstances in each case.
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- While absent on military service, an employee is deemed to

be on a furlough or leave of absence and is entitled to all

the rights, benefits (other than seniority) normally given to

other employees on a leave of absence. Upon reemployment, the

employee is credited with all the seniority and any other

rights and benefits that would have accrued had he not been

absent.

- Upon reemployment, an employee is protected from discharge

(except for cause) for a period of:

o 1 year if the military service was for more than 180

days; and

o 180 days if the military service was for more than 30

days, but less than 181 days.

NOTE: For this purpose, reduction in force is not considered

to be "for cause." This means the employee would be protected

in the event of a reduction in force.

REPORTING FOR DUTY

- An employee who has been absent for less than 31 days

(including for purposes of an exam to determine fitness) is

expected to report for duty at the beginning of the first full

work day on the first full calendar day following the

completion of service and the expiration of 8 hours after a

period allowing for the safe travel to the person's residence,

or as soon as possible after the expiration of the 8-hour

period if the person is prevented from reporting through no

fault of his own.

- An employee whose service was for more than 30 days but

less than 181 days must submit an application for reemployment

no later than 14 days after the completion of service.

- An employee whose service was for more than 180 days must

submit an application for reemployment no later than 90 days

after the completion of service.

- If the employee does not return when required, the agency

cannot deny restoration rights on this basis, but may treat

the failure to report as it would any other unexcused absence.

- The law does not specify how long an agency has to restore

an employee following receipt of his application (in the case

of absences of more than 30 days). We expect to continue to
provide in our regulations that such employees are entitled to

be restored just as soon as practicable, but in no event later

than 30 days.
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ENFORCEMENT PROVISIONS

- For the first time, the Department of Labor's Veterans'

Employment and Training Service (VETS) is directly involved,

by law, in the restoration of Federal employees performing

military duty. The law requires Labor to provide employment

and reemployment assistance to any Federal employee or

applicant who requests it.

- The new law also alters the appeals process. It requires

Labor to accept and investigate complaints from applicants or

employees who believe their rights have been denied. Informal

resolution is encouraged by the law and agencies may therefore

expect Labor to contact them directly in an effort to resolve

complaints or differences that appear to have merit. If these

informal efforts are unsuccessful, Labor may refer the

complaint to the Office of the Special Counsel for litigation

before MSPB. If the Special Counsel decides the complaint

appears meritorious, the Special Counsel may act as an

attorney for the complainant before the Board.

- Alternatively, an individual who believes an agency "has

failed or refused" to comply with the provisions of USERRA may

appeal directly to MSPB without going through Labor or the

Special Counsel.

SPECIAL PLACEMENT PROVISIONS

- The new law requires OPM to place in the executive branch

the following categories of employees:

o Executive branch employees when OPM determines that 

(1) their agencies no longer exist and the functions

have not been transferred, or (2) it is otherwise

"impossible or unreasonable" for their former agencies

to reemploy them;

o Legislative and judicial branch employees when their

agencies determine that it is "impossible or

unreasonable" to reemploy them;

o National Guard technicians when the Adjutant General of

a State determines that it is "impossible or

unreasonable to reemploy them; and

o Employees of the intelligence agencies (CIA, FBI, NSA,

etc.), when their agencies determine that it is

"impossible or unreasonable" to reemploy them.
- It is clear that Congress intended this placement provision

to apply only in extraordinary circumstances and not as a 

convenient way for agencies to circumvent their responsibilities.

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Furthermore, the new law specifically provides that the

Federal Government is to be a "model employer" with respect to

the treatment accorded employees performing military duty. 

OPM therefore expects that there will be few requests for

placement in other agencies under this provision. 

Nevertheless, when such a request arises, we expect to adopt

the following procedure:

o When an executive agency (other than an intelligence

agency) is unable to place a returning employee, the

agency will contact OPM's Associate Director for Career

Entry with full information about the employee's

qualifications and the reasons the employee cannot be

placed. The Associate Director will make the

determination whether, in fact, it is "impossible or

unreasonable" for the agency to place the employee.

o When an intelligence agency, an agency in the

legislative or judicial branches, or a State employing a

National Guard technician determines that it is

impossible or unreasonable to reemploy a returning

employee, the agency will contact OPM's Associate

Director for Career Entry with full information about

the employee's qualifications and the reasons the

employee cannot be placed.

o OPM's Associate Director for Career Entry will refer the

case to the appropriate OPM Service Center, depending

upon the employee's last place of employment.

o The Service Center Director will make a qualifications

determination and attempt to match the employee with an

appropriate agency in the commuting area.

o If a position that is equivalent in pay, grade, and

status to the employee's last position exists, the

agency will be ordered to place the employee. Failure

to place the employee will give rise to the complaint

procedure authorized for all employees under the law.

- Since almost all employees affected by these placement

provisions will be in the excepted service, we are creating a

Schedule A "when filled by" authority to place them in

positions that would otherwise be in the competitive service.
- Needless to say, the success of these placement provisions

depends directly on the cooperation of all agencies -- those

that find they are unable to place a returning employee and

those that are asked by OPM to place the individual.
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HEALTH BENEFITS

- The new law allows an employee who is covered by an

employer's group health plan to continue coverage for up to 18

months after entering on military duty. If the military

service continues for more than 30 days the employee may be

charged not more than 102 percent of the total premium.

- The Federal Employee Health Benefit (FEHB) law provides for

continued coverage for up to 12 months for employees in

leave-without-pay status during which time an employee pays

only the employee share of the FEHB premium. Therefore, for

the first 12 months, employees on a military leave of absence

may continue FEHB coverage under the same terms as other

Federal employees on leave without pay. For the last 6

months, employees on a military leave of absence would be

required to pay 102 percent of the premium (i.e., the

employee's share, plus the Government's share, plus a 2

percent administrative charge).

- Employees who were on a military leave of absence on the

date the new law was enacted (October 13, 1994), may have

their coverage reinstated for the remaining portion of the

18-month period following the date the absence from work began

or the date the military service began, whichever is the

shorter period. This means that employees who have been on a

military leave of absence for less than 12 months and who have

continued their FEHB coverage under current leave-without-pay

rules may continue for an additional 6 months, provided they

pay 102 percent of the premium. Employees who have been on a

military leave of absence for 12 to 18 months may have their

FEHB coverage reinstated for the remainder of the 18-month

period, provided they pay 102 percent of the premium.

- Under the FEHB law, when the coverage terminates at the end

of the 18-month period, the employee is entitled to a 31-day

extension of coverage during which the employee may convert to

a nongroup policy. Such an employee does not qualify for

continued coverage under the temporary continuation of

coverage (TCC) provision of law.

- Employees who separate to enter on military duty are

considered to be on a military leave of absence for the

purpose of health insurance coverage.

LIFE INSURANCE COVERAGE

- The new law makes no change in Federal Group Life Insurance

(FEGLI) coverage for employees on a military leave of absence. 

FEGLI coverage continues for up to 12 months of leave without
pay at no cost to the employee. Employees who separate to

enter on military duty are considered to be on a military

leave of absence for the purpose of FEGLI coverage.
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PENSION PLANS

- Federal civilian retirement systems have traditionally had

liberal provisions dealing with military service. USERRA

makes minor changes to the Civil Service Retirement System and

Federal Employees Retirement System, primarily dealing with

certain National Guard service and with service credit

deposits for military service. The Retirement and Insurance

Group will be issuing guidance shortly on the details of the

new provisions.

THRIFT SAVINGS PLANS

- Under USERRA, employees entering on military duty may now

make up contributions to the thrift savings plan missed

because of military service. An agency must give an employee

two times, and may give the employee up to four times, the

length of his military service to make up the contributions. 

The employee is allowed to contribute the maximum amount he

would have been allowed to contribute, subject to statutory

maximums.

EFFECTIVE DATES

- The expanded nondiscrimination provision of the law is

effective upon enactment (October 13, 1994) and Department of

Labor is prepared to accept complaints under this section.

- The new law establishes a 60-day transition period from the

date of enactment before most of the new provisions apply. 

Thus, the new law will apply to restorations initiated on or

after December 12, 1994. Restorations effected before this

date are subject to the provisions of the old law.

- In determining the 5-year total that may not be exceeded

for purposes of exercising restoration rights, service

performed prior to the effective date is considered only to

the extent that it would have counted under the old law. For

example, the service of a National Guard technician who

entered on an Active Guard Reserve (AGR) tour under title 32,

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

limit under the old law because it was specifically considered

active duty for training. However, title 32 AGR service is

not exempt from the cumulative time limits allowed under the

new law. For persons who do not exercise restoration rights

during the 60-day transition period, service since the

effective date counts under USERRA rules. Thus, if a

technician was on an AGR tour on October 13, 1994, but

exercised restoration rights after December 11, 1994, AGR

service prior to December 12 would not count in computing the
5-year total, but all service beginning with that date would

count.
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- The health care coverage provision is also effective on the

date of enactment, except that an individual on active duty on

the date of enactment would be able to elect to reinstate or

continue insurance coverage for the remaining portion of the

18 months that began on the date of separation from civilian

employment.

- The disability provisions of the law are retroactively

effective to August 1, 1990.

MISCELLANEOUS PROVISIONS

- For the first time, the new law specifically requires that

the employer be given advance notice of military duty, either

by the employee or an appropriate military officer. The

notice may be written or oral. If notice is not given,

restoration rights may be denied. (No notice is required if

military necessity prevents it or giving notice is otherwise

impossible or unreasonable.)

- In determining an employee's entitlement to protection

under the law, 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.

- The new law broadens the nondiscrimination provisions of

the old law and expressly forbids any discrimination in

employment or promotion because of uniformed service.

WHERE TO GO FOR HELP

- For more information about specific aspects of the new law

and its impact on agencies and employees, contact the nearest

office of the Department of Labor's Veterans' Employment and

Training Service, or call 1-800-442-2VET. Agencies may also

contact any OPM Service Center, or the appropriate program

office at OPM Headquarters.