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:

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 this paragraph, 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. (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 comply with the requirements of this section if— (A)the employer’s circumstances have so changed as to make such compliance impossible or unreasonable; (B)such compliance 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 compliance referred to in paragraph (1) is impossible or unreasonable because of a change in an employer's circumstances, (B) such compliance 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. (f)

Limitation

This section shall apply with respect to any absence from a position of employment with an employer by reason of the receipt of medical treatment for a service-connected disability as long as the aggregate period of such absence or absences is not more than 12 workweeks during any 12-month 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)

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. (d)

Effective date

The amendments made by this section shall apply with respect to medical treatment received on or after the date that is 90 days after the date of the enactment of this Act.