[Congressional Record Volume 169, Number 64 (Tuesday, April 18, 2023)]
[House]
[Pages H1801-H1844]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




 AMENDED NOTICE OF ADOPTION OF SUBSTANTIVE REGULATIONS AND TRANSMITTAL 
                       FOR CONGRESSIONAL APPROVAL

                                          U.S. Congress, Office of


                               Congressional Workplace Rights,

                                   Washington, DC, April 18, 2023.
     Hon. Kevin McCarthy,
     Speaker of the U.S. House of Representatives,
     The United States Capitol,
     Washington, DC.
       Dear Mr. Speaker: Section 304(b)(3) of the Congressional 
     Accountability Act (CAA), 2 U.S.C. Sec. 1384(b)(3), requires 
     that, with regard to substantive regulations under the CAA, 
     after the Board of Directors of the Office of Congressional 
     Workplace Rights (Board) has published a general notice of 
     proposed rulemaking as required by subsection (b)(1), and 
     received comments pursuant to subsection (b)(2), ``the Board 
     shall adopt regulations and shall transmit notice of such 
     action together with a copy of such regulations to the 
     Speaker of the House of Representatives and the President pro 
     tempore of the Senate for publication in the Congressional 
     Record on the first day on which both Houses are in session 
     following such transmittal.'' On February 2, 2009, the Board 
     adopted regulations implementing section 206 of the CAA, 
     which extends the rights and protections of the Uniformed 
     Services Employment and Reemployment Act (USERRA) to covered 
     employees in the legislative branch, and the Chair of the 
     Board transmitted to the Office of the Speaker notice of such 
     action together with copies of separate USERRA regulations 
     adopted for the Senate, the House of Representatives, and the 
     other covered entities and facilities.
       The Board has since made additional minor amendments to its 
     adopted USERRA regulations, as detailed in the Amended Notice 
     of Adoption of Substantive Regulations and Transmittal for 
     Congressional Approval, which accompanies this letter. The 
     Board requests that the accompanying Amended Notice and 
     amended regulations for the Senate, the House of 
     Representatives, and the other covered entities, be published 
     in the House version of the Congressional Record on the first 
     day on which both Houses are in session following receipt of 
     this transmittal, and that Congress approve the amended 
     regulations.
       Any inquiries regarding this notice should be addressed to 
     Patrick N. Findlay, Executive Director of the Office of 
     Congressional Workplace Rights, Room LA-200, 110 2nd Street, 
     S.E., Washington, DC 20540; 202-724-9250.
           Sincerely,

                                       Barbara Childs Wallace,

         Chair of the Board of Directors, Office of Congressional 
                                                 Workplace Rights.
     Attachment.

 FROM THE BOARD OF DIRECTORS OF THE OFFICE OF CONGRESSIONAL WORKPLACE 
                                 RIGHTS

     AMENDED NOTICE OF ADOPTION OF REGULATIONS AND TRANSMITTAL FOR 
                         CONGRESSIONAL APPROVAL

       Section 304(b)(3) of the CAA, 2 U.S.C. Sec. 1384(b)(3), 
     requires that, with regard to substantive regulations under 
     the CAA, after the Board has published a general notice of 
     proposed rulemaking as required by subsection (b)(1), and 
     received comments as required by subsection (b)(2), ``the 
     Board shall adopt regulations and shall transmit notice of 
     such action together with a copy of such regulations to the 
     Speaker of the House of Representatives and the President pro 
     tempore of the Senate for publication in the Congressional 
     Record on the first day on which both Houses are in session 
     following such transmittal.''
       Section 206 of the CAA, 2 U.S.C. Sec. 1316, applies the 
     rights and protections of USERRA, chapter 43 of title 38, to 
     covered employees in the legislative branch. On April 21, 
     2008, and May 8, 2008, the Office of Congressional Workplace 
     Rights (OCWR), then known as the Office of Compliance (OOC), 
     published a Notice of Proposed Rulemaking (NPR) in the 
     Congressional Record (154 Cong. Rec. S3188 (daily ed. April 
     21, 2008) H3338 (daily ed. May 8, 2008)). After notice and 
     comment per section 304(b), on February 2, 2009, the Board 
     adopted and submitted for publication in the Congressional 
     Record its adopted substantive regulations regarding USERRA. 
     155 Cong. Rec. H783-H873, S1280-S1368 (daily ed. February 2, 
     2009). Congress has not yet acted on the Board's request for 
     approval of these substantive regulations.
       The purpose of this Amended Notice of Adoption of 
     Regulations and Transmittal for Congressional Approval is to 
     incorporate minor amendments to the Board's previously-
     adopted USERRA substantive regulations. These amendments are 
     necessary in order to bring the regulations in line with 
     recent changes to the CAA and the OCWR Procedural Rules. 
     Specifically, on December 21, 2018, Congress passed the 
     Congressional Accountability Act of 1995 Reform Act, Pub. L. 
     115-397. The CAA Reform Act changed the name of the Office of 
     Compliance to the Office of Congressional Workplace Rights. 
     In addition, the Board, consistent with Section 303 of the 
     CAA, amended its Procedural Rules and submitted them for 
     publication in the Congressional Record on June 19, 2019. 165 
     Cong. Rec. H4896-H4916, S4105-S4125 (daily ed. June 19, 
     2019). Amendments to the Board's adopted USERRA regulations 
     are necessary in order to bring them in line with these 
     recent changes.
       Because the amendments to the Board's adopted USERRA 
     regulations are minor, they do not require an additional 
     general notice of proposed rulemaking or period for comments. 
     See 2 U.S.C. Sec. 1384(e). Moreover, there have been no 
     additional changes since 2009 to the relevant substantive 
     regulations promulgated by the Secretary of Labor upon which 
     the Board's USERRA regulations are based that would 
     necessitate reopening the notice and comment period.
       Because the USERRA substantive regulations previously 
     adopted by the OCWR in

[[Page H1802]]

     2009 have not yet been approved by Congress--and thus have 
     not yet been formally issued or put into effect--this Amended 
     Notice of Adoption incorporates the OCWR Board's prior 
     discussion of the public comments it received in 2008, and 
     those changes made by the OCWR in response, as reflected in 
     the USERRA regulations adopted in 2009. This prior discussion 
     is included herein for purposes of clarity and completeness, 
     as the OCWR again requests that Congress approve its adopted 
     USERRA regulations.
       On April 21, 2008 and May 8, 2008, the Board published an 
     NPR in the Congressional Record (154 Cong. Rec. S3188 (daily 
     ed. April 21, 2008) H3338 (daily ed. May 8, 2008)).
       Section 206 of the Congressional Accountability Act 
     (``CAA''), 2 U.S.C. Sec. 1316, applies certain provisions of 
     USERRA to the legislative branch. Section 1316 of the CAA 
     provides protections to eligible employees in the uniformed 
     services from discrimination, denial of reemployment rights, 
     and denial of employee benefits. Subsection 1316(c) requires 
     the Board not only to issue regulations to implement these 
     protections, but to issue regulations that are ``the same as 
     the most relevant substantive regulations promulgated by the 
     Secretary of Labor . . .'' This section provides that the 
     Board may only modify the Department of Labor regulations if 
     it can establish good cause as to why a modification would be 
     more effective for the application of the protections to the 
     legislative branch. In addition, section 304 of the CAA, 2 
     U.S.C. 1384, provides procedures for the rulemaking process 
     in general.
       The Board's Notice of Proposed Rulemaking included a 30-day 
     comment period. A number of comments to the proposed 
     substantive regulations were received from interested 
     parties. The Board reviewed the comments from interested 
     parties, made a number of changes to the proposed substantive 
     regulations in response to comments, and on December 3, 2008, 
     adopted the amended regulations.
       Adoption of these substantive regulations by the Board does 
     not complete the promulgation process. Pursuant to section 
     304 of the CAA, the procedure for promulgating such 
     substantive regulations requires that:
       (1) the Board issue proposed substantive regulations and 
     publish a general notice of proposed rulemaking in the 
     Congressional Record;
       (2) there be a comment period of at least 30 days after the 
     date of publication of the general notice of proposed 
     rulemaking; and
       (3) after consideration of comments by the Board, that the 
     Board adopt regulations and transmit notice of such action 
     together with the regulations and a recommendation regarding 
     the method for Congressional approval of the regulations to 
     the Speaker of the House and President Pro Tempore of the 
     Senate for publication in the Congressional Record.
       This Amended Notice of Adoption of Substantive Regulations 
     and Transmittal for Congressional Approval completes the 
     third step described above.
       Pursuant to section 304(b)(4) of the CAA, 2 U.S.C. 
     Sec. 1384(b)(4), the Board is required to ``include a 
     recommendation in the regulations as to whether the 
     regulations should be approved by resolution of the Senate, 
     by resolution of the House of Representatives, by concurrent 
     resolution, or by joint resolution.'' The Board recommends 
     that the House of Representatives approve the ``H'' version 
     of the regulations by resolution; that the Senate approve the 
     ``S'' version of the regulations by resolution; and that the 
     House and Senate approve the ``C'' version of the regulations 
     applied to the other employing offices by a concurrent 
     resolution. Alternatively, the House and the Senate could 
     approve all three versions of the regulations by a single 
     concurrent resolution.
       USERRA was enacted in December 1994, and the Department of 
     Labor final regulations for the executive branch became 
     effective in 2006. USERRA's provisions ensure that entry and 
     re-entry into the civilian workforce are not hindered by 
     participation in military service. USERRA provides certain 
     reemployment rights; protection from discrimination based on 
     military service, denial of an employment benefit as a result 
     of military service; and protection from retaliation for 
     enforcing USERRA protections.
       The selected statutory provisions that Congress 
     incorporated into the CAA and determined ``shall apply'' to 
     eligible employees in the legislative branch include nine 
     sections: sections 4303(13), 4304, 4311(a) and (b), 4312, 
     4313, 4316, 4317, 4318, and paragraphs (1), (2)(A), and (3) 
     of 4323(d) of title 38.
       The first section, section 4303(13), provides a definition 
     for ``service in the uniformed services.''
       This is the only definition in USERRA that Congress made 
     applicable to the legislative branch. Section 4303(13) 
     references section 4304, which describes the ``character of 
     service'' and illustrates situations that would terminate 
     eligible employees' rights to USERRA benefits.
       Congress applied section 4311 to the legislative branch in 
     order to provide discrimination and retaliation protections, 
     respectively to eligible and covered employees. 
     Interestingly, although Congress adopted these protections, 
     it did not adopt the legal standard by which to establish a 
     violation of this section of the statute.
       Sections 4312 and 4313 outline the reemployment rights that 
     are provided to eligible employees. These rights are 
     automatic under the statute, and if an employee meets the 
     eligibility requirements, he or she is entitled to the rights 
     provided therein.
       Sections 4316, 4317, and 4318 provide language on the 
     benefits given to eligible employees.
       Yes. The Board has adopted and Congress has approved 
     substantive regulations implementing the Veterans Employment 
     Opportunities Act (VEOA) in the legislative branch. The Board 
     has also submitted for congressional approval its amended 
     substantive regulations implementing the Family and Medical 
     Leave Act (FMLA) in the legislative branch, which, among 
     other things, includes enhanced protections for 
     servicemembers and veterans.
       As the Board has identified ``good cause'' to modify the 
     executive branch regulations to implement more effectively 
     the rights and protections for veterans, there are some 
     differences in other parts of the proposed regulations 
     applicable to the Senate, the House of Representatives, and 
     the other employing offices. Therefore, the Board is 
     submitting three separate sets of regulations: an ``H'' 
     version, an ``S'' version, and a ``C'' version, each denoting 
     those provisions in the regulations that are applicable to 
     the House, Senate, and other employing offices, respectively.
       Yes, as required by section 304(b)(1) of the CAA, 2 U.S.C. 
     Sec. 1384(b)(1), these regulations have also been recommended 
     by the Executive Director and Deputy Executive Directors of 
     the Office of Congressional Workplace Rights.
       This Notice of Adoption of Substantive Regulations, and 
     Submission for Congressional Approval is available on the 
     Office of Congressional Workplace Rights website, 
     www.ocwr.gov, which is compliant with section 508 of the 
     Rehabilitation Act of 1973 as amended, 29 U.S.C. Sec. 794d. 
     This Notice can also be made available in large print, 
     Braille, or other alternative format. Requests for this 
     Notice in an alternative format should be made to: the Office 
     of Congressional Workplace Rights, 110 2nd Street, S.E., Room 
     LA-200, Washington, D.C. 20540; 202-724-9250 (voice); 202-
     426-1913 (fax); or [email protected].
       The Congressional Accountability Act of 1995 (CAA), PL 104-
     1, became law on January 23, 1995, and was amended by the 
     Congressional Accountability Act of 1995 Reform Act, PL 115-
     397, which was enacted on December 21, 2018. The CAA applies 
     the rights and protections of 14 federal labor and employment 
     statutes to covered employees and employing offices within 
     the Legislative Branch of Government. Section 301 of the CAA 
     (2 U.S.C. Sec. 1381) establishes the Office of Congressional 
     Workplace Rights as an independent office within the 
     Legislative Branch.
       The Board noted in the Notice of Proposed Regulations (NPR) 
     that it had not identified any good cause for issuing three 
     separate sets of regulations and that if the regulations were 
     approved as proposed, there would be one text applicable to 
     all employing offices and covered employees. During the 
     notice and comment period, the Board received comments from 
     the Committee on House Administration (CHA), Senate 
     Employment Counsel (Counsel), and the United States Capitol 
     Police (Capitol Police). All of the commenters noted, in 
     different places throughout the regulations, the need for 
     modifications that would apply specifically to the House, 
     Senate or other employing offices. Although the Board has not 
     found good cause to vary the Department of Labor (DOL) 
     regulations in all instances where requested, there are a 
     number of places where such variances are warranted. In light 
     of that and the comment by the CHA that the Congressional 
     Accountability Act (CAA) requires the publication of separate 
     regulations for the Senate, House and other covered employees 
     and employing offices, the Board has made that change and put 
     forward three separate sets of regulations, an ``H'' version, 
     an ``S'' version, and a ``C'' version,

[[Page H1803]]

     each denoting the provisions that are included in the 
     regulations that are applicable to the House, Senate, and 
     other employing offices, respectively.
       In its comments, CHA maintained that the definition of 
     ``eligible employee'' in the regulations is overly broad. 
     Pointing to section 206(a)(2)(A) of the CAA, which defines an 
     ``eligible employee'' as ``a covered employee performing 
     service in the uniformed service, within the meaning of 
     section 4303(13) of title 38, whose service has not been 
     terminated upon occurrence of any of the events enumerated in 
     section 4304 of title 38,'' the CHA notes that the definition 
     references only the present tense of the verb ``performing'' 
     and makes no mention of the past tense. CHA also noted that 
     section 206 does not define ``eligible employee'' to include 
     an individual who was previously a member of the uniformed 
     services or one who applies or has applied to perform service 
     in the uniformed services. CHA acknowledged that this 
     ``stands in marked contrast to the general USERRA statute's 
     protection of individuals who currently serve as well as to 
     those who have previously served, to those who have an 
     obligation to serve, and to those who have applied to serve 
     in the uniformed services (regardless of whether they 
     actually served).'' CHA further recognized ``that USERRA's 
     intent is to provide broad protections for those who serve 
     and have served in the uniformed services . . .'' CHA 
     commented that the regulations are inappropriately broad, 
     notwithstanding language in section 206(a)(2)(A) that 
     strongly suggests inclusion of an individual who has been 
     honorably discharged and is therefore not currently serving, 
     but who has served in the past.
       The Board acknowledges the tension in the language in 
     section 206(a)(2)(A), but does not agree with the conclusions 
     reached by the CHA, that, absent a statutory amendment 
     revising the definition in section 206(a)(2)(A), the proposed 
     regulations should be revised to reflect that, ``as applied 
     by the CAA, USERRA only protects employees who are currently 
     `performing service in the uniformed services.' ''
       The Board's authority to promulgate substantive regulations 
     is found in section 206 of the CAA, 2 U.S.C. Sec. 1316, which 
     applies certain provisions of USERRA. Section 1316 of the CAA 
     provides protections to eligible employees in the uniformed 
     services from discrimination, denial of reemployment rights, 
     and denial of employee benefits.
       Subsection 1316(c) of the CAA requires the Board not only 
     to issue regulations to implement these protections, but to 
     issue regulations that are ``the same as the most relevant 
     substantive regulations promulgated by the Secretary of Labor 
     . . .'' This section provides that the Board may modify the 
     Department of Labor regulations only if it can establish good 
     cause as to why a modification would be more effective for 
     application of the protections to the legislative branch. The 
     Board chooses to apply a broad definition of ``eligible 
     employee.''
       The Board does not read the ``performing service'' language 
     in section 206(a)(2)(A) as limiting the discrimination 
     protection of USERRA to only those employees who are 
     currently serving in the uniformed services. Rather, we 
     interpret the phrase ``performing service'' in this context 
     to refer to covered employees who have some form of military 
     status (i.e., those who have performed service or who have 
     applied or have an obligation to perform military service, as 
     well as those who are currently members of or who are serving 
     in the uniformed services) as distinguished from covered 
     employees who do not have this military status.
       This application of the phrase ``performing service'' is 
     supported by several indicia of Congressional intent. First, 
     section 206(a)(2)(A) prohibits discrimination against 
     eligible employees ``within the meaning of'' subsection (a) 
     of section 4311 of title 38, which states:

         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 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.

       Most, if not all, of these protections would be lost if the 
     phrase ``performing service'' were applied to exclude covered 
     employees who are not currently performing service at the 
     moment of the alleged violation. It would vitiate the 
     reemployment rights under USERRA because employees would lose 
     their statutory rights at the moment of discharge, whether 
     honorable or not. Similarly, had Congress intended to so 
     limit the coverage of USERRA, it could have said that ``any'' 
     discharge was a disqualifying condition, not those that are 
     other than honorable.
       Congressional intent is also reflected in the USERRA 
     statute itself, passed in 1994, which states, ``It is the 
     sense of Congress that the Federal Government should be a 
     model employer in carrying out the provisions of this 
     chapter.'' 38 USC Sec. 4301(b). A narrow application of the 
     phrase ``performing service'' would be directly contrary to 
     this statement of the sense of Congress.
       Finally, we note that after the CAA was enacted, Congress 
     enacted the VEOA and thereby granted certain preferences in 
     hiring and retention during layoffs to all covered employees 
     who are ``veterans'' as defined in 5 U.S.C. Sec. 2108, or any 
     superseding legislation. We conclude that Congress intended a 
     broad application of the phrase ``performing service'' so 
     that covered employees who will perform or have performed 
     service are also protected against discrimination and the 
     improper denial of reemployment or benefits.
       In light of the above, the Board has found good cause to 
     modify the Department of Labor's definition of ``eligible 
     employee.'' Further, in order to avoid any confusion as to 
     the application of the regulations to ``eligible'' employees, 
     the Board has made the appropriate editorial changes 
     throughout the adopted regulations.
       Section 1002.5 contains the definitions used in the 
     regulations. Several commenters recommended that some of the 
     definitions in this section be edited to be consistent with 
     the CAA. Where appropriate, the Board has made those changes. 
     One specific change was the substitution of ``Capitol Guide 
     Service and Capitol Guide Board'' with ``Office of 
     Congressional Accessibility Services,'' in light of Congress 
     adopting PL 100-437 on October 20, 2008. The Board has 
     modified its regulations to reflect this change in 
     Sec. 1002.5(e)(3) in all versions and in Sec. 1002.5(k)(1) in 
     the ``C'' version.
       Section 1002.5(i) defines an employee of the House of 
     Representatives. CHA noted that because there may be some 
     joint employees of the House and Senate, the definition of an 
     employee of the House of Representatives should also include 
     individuals employed by the Senate. We agree and have made 
     the necessary revisions.
       Section 1002.5(k) defines employing office. CHA commented 
     that the definition in Sec. 1002.5(k)(4) was broader than the 
     definition of ``employing office'' in section 101(9) of the 
     CAA. We note that during the rulemaking procedures for VEOA, 
     the Board determined that in view of the selection process 
     for certain Senate employees, the words ``or directed'' would 
     be added to the definition of ``covered employee'' to include 
     any employee who is hired at the direction of a Senator, but 
     whose appointment form is signed by an officer of either 
     House of Congress. Although we included such language in the 
     proposed rules on USERRA, it appears that this language would 
     be overreaching for the House and other employing offices. As 
     the House has different methods of making appointments and 
     selections, this language is unnecessary and may create 
     confusion given the practices of the House. Accordingly, the 
     Board has deleted this provision from the House and other 
     employing offices version, but will include it in the Senate 
     version.
       Section 1002.5(l) defines health plan. The Capitol Police 
     recommended that the language in the definition of health 
     care plans be limited to the Federal Employees Health 
     Benefits (FEHB) program. As discussed more fully below, the 
     Board is mandated to follow, as closely as possible, the 
     regulations applied to the executive branch. In view of the 
     fact that the DOL regulations apply to federal employees in 
     the executive branch who are also only covered under the FEHB 
     Program, the Board finds that there is no good cause to limit 
     the definition.
       Section 1002.5(q) defines seniority. The Capitol Police 
     also recommended that this definition of seniority be deleted 
     because of potential conflict with definitions of seniority 
     in various collective bargaining agreements. The Board has 
     determined that there is no good cause for such a change. The 
     definition in the adopted regulations is not limiting and is 
     consistent with section 4316 of USERRA. Further, as DOL 
     indicated in its notice to the final USERRA regulations, 
     section 4316(a) of USERRA is not a statutory mandate to 
     impose seniority systems on employers. Rather, USERRA 
     requires only that those employers who provide benefits based 
     on seniority restore the returning service member to his or 
     her proper place on the seniority ladder. Because each 
     employing office defines and determines how seniority is to 
     be applied, the definition of seniority in the adopted 
     regulations should not conflict with collective bargaining 
     agreements.
       Section 1002.5(s) defines undue hardship. The CHA has noted 
     that in setting out the standards for considering when an 
     action might require significant difficulty or expense, the 
     proposed regulations did not include the language from 
     Sec. 1002.5(n)(2) of the DOL's regulations. In the DOL's 
     regulations, section 1002.5(n)(2) provides that an action may 
     be considered to be an undue hardship if it requires 
     significant difficulty or expense when considered in light 
     of: the overall financial resources of the facility or 
     facilities involved in the provision of the action; the 
     number of persons employed at such facility; the effect on 
     expenses and resources, or the impact otherwise of such 
     action upon the operation of the facility. Section 
     1002.5(s)(2) of the proposed regulations similarly referred 
     to the overall financial resources of the employing office. 
     However, in view of the fact that employing offices also may 
     have multiple facilities, the Board agrees with the CHA 
     comments and finds that there is no good cause to delete what 
     was Sec. 1002.5(n)(2) of the DOL regulations. Therefore, what 
     was section 1002.5(n)(2) of the DOL regulations has been 
     included in the adopted regulations as section 1002.5(s)(2) 
     and subsequent sections have been renumbered accordingly.

[[Page H1804]]


  

       Section 1002.7 states that USERRA supersedes any state and 
     local law, contract, or policy that reduces or limits any 
     rights or benefits provided by USERRA, but does not supersede 
     those provisions that are more beneficial. Senate Employment 
     Counsel commented that reference to the fact that USERRA 
     supersedes any state and local laws is superfluous and does 
     not apply to legislative offices. Further, Counsel 
     recommended that the section referring to the fact that 
     USERRA does not supersede more beneficial state or local laws 
     be omitted. The Board acknowledges that state and local laws 
     do not apply to federal employees or the employing offices 
     covered under the CAA. Therefore, in order to avoid any 
     confusion, the Board has made the appropriate changes.
       As a general comment, the Capitol Police raised questions 
     about the Board's reference in the notice to Britton v. 
     Office of the Architect of the Capitol. The Capitol Police 
     maintains that Britton is not applicable to section 4311(a) 
     or (b) and that the USERRA regulations should not be changed 
     to include substantive regulations under the CAA. The Board 
     notes that the reference to the Britton case and retaliation 
     under section 208 of the CAA is merely explanatory and not a 
     part of the substantive regulations. In the NPR, there was a 
     typographical error. The correct statement is that the Board 
     does not propose a particular standard for claims of 
     discrimination or retaliation brought by eligible employees 
     under section 206. Any discussion referring to Section 206 
     retaliation is for explicative purposes only.
       Section 1002.20, as set out in the proposed regulations, 
     discussed the extent of the coverage of USERRA's prohibitions 
     against discrimination and retaliation. Several commenters 
     noted that section 1002.20 and 1002.21 were confusing and did 
     not clearly differentiate discrimination and retaliation 
     protections as applied by section 206 and section 208 of the 
     CAA. The Board agrees and has modified section 1002.20 and 
     replaced section 1002.21 with a new section to reflect that 
     USERRA protects eligible employees in all positions with 
     covered employing offices. Thus, because section 206 of the 
     CAA only covers ``eligible employees'' as defined in section 
     1002.5(f), ``covered employees'' would only be protected by 
     the anti-retaliation provisions under section 208 of the CAA.
       Additionally, in its comments, the Capitol Police asked why 
     the numbering of section 1002.20 and 1002.21 was reversed and 
     why section 1002.22 covering the burden of proving 
     discrimination or retaliation was excluded. The Board notes 
     that it had good cause to delete section 1002.22 as Congress 
     specifically did not adopt the ``but for'' test (38 U.S.C 
     Sec. 4311 (c)(1) and (2)) and therefore it was confusing and 
     unnecessary to include this provision. In view of the 
     revisions to section 1002.20 and 1002.21 noted above, the 
     Board has kept the order as it was in the proposed 
     regulations to be more consistent with these edits.
       As a general comment, the CHA noted that with respect to 
     employees in the House, the statement in the NPR that ``it is 
     not permitted for an employee to work for a Member office and 
     a Committee at the same time'' is incorrect. Although this 
     statement is not part of the substantive regulations, where 
     there are variations in the employment requirements of 
     different employing offices, the Board has made the necessary 
     changes to each of the versions of the adopted regulations.
       Section 1002.32 sets out the criteria that an employee must 
     meet to be eligible under USERRA for reemployment after 
     service in the uniformed services. The CHA recommended that 
     this section be changed to be consistent with the definition 
     of eligible employee in section 206(a)(2)(A) of the CAA, and 
     for clarity as applied to individual employing offices that 
     may cease to exist while an eligible employee is performing 
     service. The Board agrees and has changed the House and 
     Senate versions to reflect that generally, if an eligible 
     employee is absent from a position in an employing office by 
     reason of service in the uniformed services, he or she will 
     be eligible for employment in the same employing office if 
     that employing office continues to exist at such time.
       Section 1002.34 of the proposed regulations established 
     that USERRA applies to all covered employing offices of the 
     legislative branch as defined in Subpart A, Sec. 1002.5(e). 
     Both the Capitol Police and Senate Employment Counsel 
     commented that the definition of ``employing office'' should 
     be changed to track the CAA, rather than the definition in 
     the proposed regulations. Thus, Counsel notes that any 
     regulation the OCWR issues for an ``employing office'' should 
     track 2 U.S.C. Sec. 1301(a)(9), and include the General 
     Accounting Office and Library of Congress, as required under 
     2 U.S.C. Sec. 1316(a)(2)(C). The Board agrees and has changed 
     the definition to more closely follow the CAA.
       Section 1002.40 states that in protecting against 
     discrimination in initial hiring decisions, an employing 
     office need not actually employ an individual to be his or 
     her employer. The CHA commented that it is not correct to say 
     that ``[a]n employing office need not actually employ an 
     individual to be his or her `employer.' '' The CHA noted that 
     while the result is the same--an applicant who is otherwise 
     an eligible employee cannot be discriminated against in 
     initial employment based on his or her performing service in 
     the uniformed service--to say that the employing office is 
     his or her employer is incorrect. The Board agrees and has 
     made the change to reflect that while an employing office may 
     not technically be the ``employer'' of an applicant, the 
     result is the same--the employing office is liable under the 
     Act if it engages in discrimination against an applicant 
     based on his or her performing service in the uniformed 
     service.
       Section 1002.120 allows an employee to seek or obtain 
     employment with an employer other than the pre-service 
     employing office during the period of time within which a 
     reemployment application must be made, without giving up 
     reemployment rights with the pre-service employing office. 
     The proposed regulations stated that such alternative 
     employment during the application period should not be of a 
     type that would constitute a cause for the employing office 
     to discipline or terminate the employee following 
     reemployment. The CHA has noted that because employees of the 
     House are ``at-will,'' reference to termination and/or 
     discipline for ``cause'' in this section is inapplicable and 
     could be confusing. While the Board recognizes that employees 
     of the House are ``at-will,'' the same issues raised by the 
     CHA can apply to many executive branch and private sector 
     employees, as well. In view of the fact that the DOL 
     regulations contain the same provision, notwithstanding the 
     different employment arrangements in the private sector and 
     executive branch agencies, the Board finds no good cause to 
     make the change.
       USERRA ensures that eligible employees are provided with 
     health and pension plan coverage on a continuing basis in 
     certain circumstances and reinstatement of coverage upon 
     reemployment. All of the commenters raised concerns over the 
     inclusion of provisions concerning health and pension plan 
     benefits and asked that these provisions be withdrawn or 
     limited specifically to the specific health and pension plans 
     covering federal employees. For example, the CHA notes that 
     House employing offices do not provide health or retirement 
     benefits to their employees and do not pay or administer 
     contributions and/or premiums for such plans. Similarly, 
     Senate Employment Counsel explained that while employees of 
     Senate employing offices are entitled to health plan coverage 
     and pension benefits under the FEHB and Civil Service 
     Retirement System (CSRS) or the Federal Employment Retirement 
     System (FERS), their respective employing offices do not 
     provide the ``employer contribution'' for such coverage and 
     do not determine when such coverage starts or is reinstated 
     or any terms or conditions of the coverage. Moreover, while 
     the Senate appropriates monies for any agency contribution to 
     such plans, these contributions do not come from the monies 
     appropriated to individual employing offices.
       The Board recognizes that the role of the Senate and House 
     employing offices in administering health and pension plans 
     is somewhat attenuated. With the caveat in mind that it is 
     the U.S. Office of Personnel Management that controls not 
     only federal employee health plans, but pension plans as 
     well, the Board nonetheless does not find good cause to 
     exclude these provisions from the adopted regulations. In 
     support of this, the Board notes that the DOL regulations 
     cover federal employees in the executive branch who are also 
     covered under the FEHB, CSRS and FERS. Moreover, USERRA 
     itself states in section 4318 that a right provided under any 
     Federal or State law governing pension benefits for 
     governmental employees (except for benefits under the Thrift 
     Savings Plan) is covered. The Board is not aware of every 
     employment relationship in the legislative branch and there 
     is always the possibility that there may be situations where 
     employees are not covered under the FEHB or CSRS/FERS, or may 
     be covered under craft union or multi-employer plans. The 
     Board further notes that to the extent that an employing 
     office does not control nor is responsible for assuring that 
     eligible employees are properly covered under health and 
     pension plans, these provisions would not apply. Although 
     employing offices may not have direct control over health and 
     pension plans, they are responsible for ensuring that 
     eligible employees are covered by facilitating or requesting 
     that the necessary contribution or funding is made. Rather 
     than deleting sections of the regulations, the Board has 
     revised the regulations to reflect the responsibility of the 
     employing offices and where appropriate, has made changes to 
     reflect that while employing agencies may not have control 
     over the plans, they do have some responsibility in assuring 
     that eligible employees are covered as required under USERRA.
       Section 1002.247 protects an employee against discharge. 
     Rather than state that a discharge except for cause is 
     prohibited if an employee's most recent period of service was 
     for more than 30 days, the proposed regulations stated that, 
     because legislative employees are at will, a discharge 
     without cause could create a rebuttable presumption of a 
     violation. In its comments, the CHA notes that in modifying 
     this section, the explanation regarding the discharge of a 
     returning employee was unclear. The Board agrees that there 
     is no ``good cause'' for making the revisions originally 
     contained in the proposed regulations and has changed

[[Page H1805]]

     this section to be consistent with DOL regulations.
       Section 1002.303 requires that employees file a claim form 
     with OCWR before making an election between requesting an 
     administrative hearing or filing a civil action in Federal 
     district court. The proposed regulations contained language 
     that provided for ``covered'' rather than ``eligible'' 
     employees to bring claims under USERRA to the OCWR.
       The CHA commented that to be consistent with section 
     206(a)(2)(A) of the CAA, this provision should be modified to 
     make clear that only ``eligible employees'' may bring claims 
     under section 206. The Board agrees and because only eligible 
     employees are covered under section 206 discrimination and 
     retaliation provisions, this section has been modified.
       Section 1002.312 provides for the various remedies that may 
     be awarded for violations of USERRA, including liquidated 
     damages. The CHA commented that because of a technical error 
     in the CAA (a reference to section ``4323(c)'' rather than 
     ``4323(d)''), there is no statutory authority to provide for 
     liquidated damages remedies under USERRA. In its notice of 
     rulemaking, the Board noted the same error. Congress 
     subsequently corrected this typographical error by way of the 
     adoption of the CAA Reform Act, making clear its intent that 
     the liquidated damages provision of USERRA be applied under 
     the CAA.
       Under section 1002.310 and 1002.314 of the proposed 
     regulations, respectively, fees and court costs may not be 
     charged against individuals claiming rights under the CAA and 
     courts and/or hearing officers may use their equity powers in 
     actions or proceedings under the Act. The CHA commented that 
     because section 1002.314 and the first sentence of section 
     1002.310 are based on sections of USERRA that are not 
     incorporated by the CAA (sections 4323(e) and 4323(h) 
     respectively), these provisions should be deleted from the 
     adopted regulations. The Board has reviewed these comments 
     and while we would find that, notwithstanding any 
     ``technical'' error, the CAA does incorporate the remedies 
     set out in section 1002.314 (a)-(c), we agree that the CAA 
     does not include the remedies articulated in sections 4323(e) 
     and 4323(h) of USERRA. As the first sentence in section 
     1002.310 of the proposed regulations does appear to mirror 
     section 4323(h) of USERRA and section 002.314 of the proposed 
     regulations similarly mirrors section 4323(e), in order to 
     avoid any confusion, the Board has found good cause to delete 
     these provisions. The Board has retained the part of section 
     1002.310 pertaining to the awarding of fees and costs. As 
     discussed in the NPR, the Board found that the DOL 
     regulations permitting an award of fees and court costs for 
     an individual who has obtained counsel and prevailed in his 
     or her claim against the employer was consistent with section 
     225(a) of the CAA, permitting a prevailing covered employee 
     to be awarded reasonable fees and costs. To be more fully 
     consistent with the CAA, the Board has kept its modification 
     of the language removing the requirement that the individual 
     retain private counsel as a condition of such an award.
       When approved by the House of Representatives for the House 
     of Representatives, these regulations will have the prefix 
     ``H.''

               Subpart A: Introduction to the Regulations

       This part implements certain provisions of the Uniformed 
     Services Employment and Reemployment Rights Act of 1994 
     (``USERRA'' or ``the Act''), as applied by the Congressional 
     Accountability Act (``CAA''). 2 U.S.C. 1316. USERRA is a law 
     that establishes certain rights and benefits for employees, 
     and duties for employers. USERRA affects employment, 
     reemployment, and retention in employment, when employees 
     serve or have served in the uniformed services. There are 
     five subparts to these regulations. Subpart A gives an 
     introduction to the USERRA regulations. Subpart B describes 
     USERRA's anti-discrimination and anti-retaliation provisions. 
     Subpart C explains the steps that must be taken by a 
     uniformed service member who wants to return to his or her 
     previous civilian employment. Subpart D describes the rights, 
     benefits, and obligations of persons absent from employment 
     due to service in the uniformed services, including rights 
     and obligations related to health plan coverage. Subpart E 
     describes the rights, benefits, and obligations of the 
     returning veteran or service member. Subpart F explains the 
     role of the Office of Congressional Workplace Rights in 
     administering USERRA as applied by the CAA.
       USERRA is the latest in a series of laws protecting 
     veterans' employment and reemployment rights going back to 
     the Selective Training and Service Act of 1940. USERRA's 
     immediate predecessor was commonly referred to as the 
     Veterans' Reemployment Rights Act (``VRRA''), which was 
     enacted as section 404 of the Vietnam Era Veterans' 
     Readjustment Assistance Act of 1974. In enacting USERRA, 
     Congress emphasized USERRA's continuity with the VRRA and its 
     intention to clarify and strengthen that law. Congress also 
     emphasized that Federal laws protecting veterans' employment 
     and reemployment rights for the past fifty years had been 
     successful and that the large body of case law that had 
     developed under those statutes remained in full force and 
     effect, to the extent it is consistent with USERRA. USERRA 
     authorized the Department of Labor to publish regulations 
     implementing the Act for State, local government, and private 
     employers. USERRA also authorized the Office of Personnel 
     Management to issue regulations implementing the Act for 
     Federal executive agencies, with the exception of certain 
     Federal intelligence agencies. For those Federal intelligence 
     agencies, USERRA established a separate program for 
     employees. Section 206 of the CAA, 2 U.S.C. 1316, requires 
     the Board of Directors of the Office of Congressional 
     Workplace Rights to issue regulations to implement the 
     statutory provisions relating to employment and reemployment 
     rights of members of the uniformed services. The regulations 
     are required to be the same as substantive regulations 
     promulgated by the Secretary of Labor, except where a 
     modification of such regulations would be more effective for 
     the implementation of the rights and protections of the Act. 
     The Department of Labor issued its regulations, effective 
     January 18, 2006. The regulations set forth herein are the 
     substantive regulations that the Board of Directors of the 
     Office of Congressional Workplace Rights has promulgated for 
     the legislative branch, for the implementation of the USERRA 
     provisions of the CAA. All references to USERRA in these 
     regulations, means USERRA, as applied by the CAA.
       USERRA, as applied by the CAA, became effective for 
     employing offices of the legislative branch on January 23, 
     1996.
       (a) As applied by the CAA, the Executive Director of the 
     Office of Congressional Workplace Rights is responsible for 
     providing education and information to any covered employing 
     office or employee with respect to their rights, benefits, 
     and obligations under the USERRA provisions of the CAA.
       (b) The Office of Congressional Workplace Rights, under the 
     direction of the Executive Director, is responsible for the 
     processing of claims filed pursuant to these regulations. 
     More information about the Office of Congressional Workplace 
     Rights' role is contained in Subpart F.
       (a) Act or USERRA means the Uniformed Services Employment 
     and Reemployment Rights Act of 1994, as applied by the CAA.
       (b) Benefit, benefit of employment, or rights and benefits 
     means any advantage, profit, privilege, gain, status, 
     account, or interest (other than wages or salary for work 
     performed) that accrues to the employee because of an 
     employment contract, employment agreement, or employing 
     office policy, plan, or practice. The term includes rights 
     and benefits under a pension plan, health plan, insurance 
     coverage and awards, bonuses, severance pay, supplemental 
     unemployment benefits, vacations, and, where applicable, the 
     opportunity to select work hours or the location of 
     employment.
       (c) Board means Board of Directors of the Office of 
     Congressional Workplace Rights.
       (d) CAA means the Congressional Accountability Act of 1995, 
     as amended (Pub. L. 104-1, 109 Stat. 3, 2 U.S.C. 1301-1438).
       (e) Covered employee means any employee, including an 
     applicant for employment and a former employee, of (1) the 
     House of Representatives; (2) the Senate; (3) the Office of 
     Congressional Accessibility Services; (4) the Capitol Police; 
     (5) the Congressional Budget Office; (6) the Office of the 
     Architect of the Capitol; (7) the Office of the Attending 
     Physician; (8) the Government Accountability Office; (9) the 
     Library of Congress; and (10) the Office of Congressional 
     Workplace Rights.
       (f) Eligible employee means a covered employee performing 
     service in the uniformed services, as defined in 1002.5(t) of 
     this subpart, whose service has not been terminated upon 
     occurrence of any of the events enumerated in section 
     1002.135 of these regulations. For the purpose of defining 
     who is covered under the discrimination section of these 
     regulations, ``performing service'' means an eligible 
     employee 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 the uniformed services.
       (g) Employee of the Office of the Architect of the Capitol 
     includes any employee of the Office of the Architect of the 
     Capitol, the Botanic Gardens, or the Senate Restaurants.
       (h) Employee of the Capitol Police includes any member or 
     officer of the Capitol Police.

[[Page H1806]]

       (i) Employee of the House of Representatives includes an 
     individual occupying a position for which the pay is 
     disbursed by the Chief Administrative Officer of the House of 
     Representatives, or another official designated by the House 
     of Representatives, or any employment position in an entity 
     that is paid with funds derived from the clerk-hire allowance 
     of the House of Representatives but not any such individual 
     employed by any entity listed in subparagraphs (3) through 
     (10) of paragraph (e) above.
       (j) Employee of the Senate includes an individual occupying 
     a position for which the pay is disbursed by the Secretary of 
     the Senate, but not any such individual employed by any 
     entity listed in subparagraphs (3) through (10) of paragraph 
     (e) above.
       (k) Employing office means (1) the personal office of a 
     Member of the House of Representatives; (2) a committee of 
     the House of Representatives or a joint committee of the 
     House of Representatives and the Senate (3) any other office 
     headed by a person with the final authority to appoint, hire, 
     discharge, and set the terms, conditions, or privileges of 
     the employment of an employee of the House of 
     Representatives.
       (l) Health plan means an insurance policy, insurance 
     contract, medical or hospital service agreement, membership 
     or subscription contract, or other arrangement under which 
     health services for individuals are provided or the expenses 
     of such services are paid.
       (m) Notice, when the eligible employee is required to give 
     advance notice of service, means any written or oral 
     notification of an obligation or intention to perform service 
     in the uniformed services provided to an employing office by 
     the employee who will perform such service, or by the 
     uniformed service in which the service is to be performed.
       (n) Office means the Office of Congressional Workplace 
     Rights.
       (o) Qualified, with respect to an employment position, 
     means having the ability to perform the essential tasks of 
     the position.
       (p) Reasonable efforts, in the case of actions required of 
     an employing office, means actions, including training 
     provided by an employing office that do not place an undue 
     hardship on the employing office.
       (q) Seniority means longevity in employment together with 
     any benefits of employment that accrue with, or are 
     determined by, longevity in employment.
       (r) Service in the uniformed services means the performance 
     of duty on a voluntary or involuntary basis in a uniformed 
     service under competent authority. Service in the uniformed 
     services includes active duty, active and inactive duty for 
     training, National Guard duty under Federal statute, and a 
     period for which a person is absent from a position of 
     employment for an examination to determine the fitness of the 
     person to perform such duty. The term also includes a period 
     for which a person is absent from employment to perform 
     funeral honors duty as authorized by law (10 U.S.C. 12503 or 
     32 U.S.C. 115). The Public Health Security and Bioterrorism 
     Preparedness and Response Act of 2002, Pub. L. 107-188, 
     provides that service as an intermittent disaster-response 
     appointee upon activation of the National Disaster Medical 
     System (NDMS) or as a participant in an authorized training 
     program is deemed ``service in the uniformed services.'' 42 
     U.S.C. 300hh-11(d)(3).
       (s) Undue hardship, in the case of actions taken by an 
     employing office, means an action requiring significant 
     difficulty or expense, when considered in light of--
       (1) The nature and cost of the action needed under USERRA 
     and these regulations;
       (2) the overall financial resources of the facility or 
     facilities involved in the provision of the action; the 
     number of persons employed at such facility; the effect on 
     expenses and resources, or the impact otherwise of such 
     action upon the operation of the facility;
       (3) The overall financial resources of the employing 
     office; the overall size of the business of an employing 
     office with respect to the number of its employees; the 
     number, type, and location of its facilities; and,
       (4) The type of operation or operations of the employing 
     office, including the composition, structure, and functions 
     of the work force of such employing office; the geographic 
     separateness, administrative, or fiscal relationship of the 
     State, District, or satellite office in question to the 
     employing office.
       (t) Uniformed services means the Armed Forces; the Army 
     National Guard and the Air National Guard when engaged in 
     active duty for training, inactive duty training, or full-
     time National Guard duty; the commissioned corps of the 
     Public Health Service; and any other category of persons 
     designated by the President in time of war or national 
     emergency. For purposes of USERRA coverage only, service as 
     an intermittent disaster response appointee of the National 
     Disaster Medical System (NDMS) when federally activated or 
     attending authorized training in support of their Federal 
     mission is deemed ``service in the uniformed services,'' 
     although such appointee is not a member of the ``uniformed 
     services'' as defined by USERRA.
       The definition of ``service in the uniformed services'' 
     covers all categories of military training and service, 
     including duty performed on a voluntary or involuntary basis, 
     in time of peace or war. Although most often understood as 
     applying to National Guard and reserve military personnel, 
     USERRA also applies to persons serving in the active 
     components of the Armed Forces. Certain types of service 
     specified in 42 U.S.C. 300hh-11 by members of the National 
     Disaster Medical System are covered by USERRA.
       (a) USERRA establishes a floor, not a ceiling, for the 
     employment and reemployment rights and benefits of those it 
     protects. In other words, an employing office may provide 
     greater rights and benefits than USERRA requires, but no 
     employing office can refuse to provide any right or benefit 
     guaranteed by USERRA, as applied by the CAA.
       (b) USERRA supersedes any contract, agreement, policy, 
     plan, practice, or other matter that reduces, limits, or 
     eliminates in any manner any right or benefit provided by 
     USERRA, including the establishment of additional 
     prerequisites to the exercise of any USERRA right or the 
     receipt of any USERRA benefit. For example, an office policy 
     that determines seniority based only on actual days of work 
     in the place of employment would be superseded by USERRA, 
     which requires that seniority credit be given for periods of 
     absence from work due to service in the uniformed services.
       (c) USERRA does not supersede, nullify or diminish any 
     Federal law, contract, agreement, policy, plan, practice, or 
     other matter that establishes an employment right or benefit 
     that is more beneficial than, or is in addition to, a right 
     or benefit provided under the Act. For example, although 
     USERRA does not require an employing office to pay an 
     eligible employee for time away from work performing service, 
     an employing office policy, plan, or practice that provides 
     such a benefit is permissible under USERRA.
       (d) If an employing office provides a benefit that exceeds 
     USERRA's requirements in one area, it cannot reduce or limit 
     other rights or benefits provided by USERRA. For example, 
     even though USERRA does not require it, an employing office 
     may provide a fixed number of days of paid military leave per 
     year to employees who are members of the National Guard or 
     Reserve. The fact that it provides such a benefit, however, 
     does not permit an employing office to refuse to provide an 
     unpaid leave of absence to an employee to perform service in 
     the uniformed services in excess of the number of days of 
     paid military leave.

          Subpart B: Anti-Discrimination and Anti-Retaliation

        Protection From Employer Discrimination and Retaliation

       An employing office must not deny initial employment, 
     reemployment, retention in employment, promotion, or any 
     benefit of employment to an individual on the basis of his or 
     her membership, application for membership, performance of 
     service, application for service, or obligation for service 
     in the uniformed services.
       An employing office must not retaliate against an eligible 
     employee by taking any adverse employment action against him 
     or her because the eligible employee has taken an action to 
     enforce a protection afforded any person under USERRA; 
     testified or otherwise made a statement in or in connection 
     with a proceeding under USERRA; assisted or participated in a 
     USERRA investigation; or exercised a right provided for by 
     USERRA.
       Under USERRA, as applied by the CAA, the prohibitions 
     against discrimination and retaliation apply to eligible 
     employees in all positions within covered employing offices, 
     including those that are for a brief, nonrecurrent period, 
     and for which there is no reasonable expectation that the 
     employment position will continue indefinitely or for a 
     significant period. However, USERRA's reemployment rights and 
     benefits do not apply to such brief, non-recurrent positions 
     of employment.
       USERRA's provisions, as applied by section 206 of the CAA, 
     prohibit discrimination and retaliation only against eligible 
     employees. Section 208(a) of the CAA, 2 U.S.C. 1317(a), 
     however, prohibits retaliation against all covered employees 
     because the employee has opposed any practice made unlawful 
     under the CAA, including a violation of USERRA's provisions, 
     as applied by the CAA; or testified; assisted; or 
     participated in any manner in a hearing or proceeding under 
     the CAA.

[[Page H1807]]

  


                Subpart C: Eligibility for Reemployment

                  General Eligibility For Reemployment

                  Coverage of Employers and Positions

             Coverage of Service in the Uniformed Services

Absence From a Position of Employment Necessitated by Reason of Service 
                       in the Uniformed Services

                           Period of Service

                       Application for Employment

                          Character of Service

                      Employer Statutory Defenses

                  General Eligibility for Reemployment

       (a) In general, if an eligible employee has been absent 
     from a position of employment in an employing office by 
     reason of service in the uniformed services, he or she will 
     be eligible for reemployment in that same employing office, 
     if that employing office continues to exist at such time, by 
     meeting the following criteria:
       (1) The employing office had advance notice of the eligible 
     employee's service;
       (2) The eligible employee has five years or less of 
     cumulative service in the uniformed services in his or her 
     employment relationship with a particular employing office;
       (3) The eligible employee timely returns to work or applies 
     for reemployment; and,
       (4) The eligible employee has not been separated from 
     service with a disqualifying discharge or under other than 
     honorable conditions.
       (b) These general eligibility requirements have important 
     qualifications and exceptions, which are described in detail 
     in Sec. Sec. 1002.73 through 1002.138. If the employee meets 
     these eligibility criteria, then he or she is eligible for 
     reemployment unless the employing office establishes one of 
     the defenses described in Sec. 1002.139. The employment 
     position to which the eligible employee is entitled is 
     described in Sec. Sec. 1002.191 through 1002.199.
       No. The eligible employee is not required to prove that the 
     employing office discriminated against him or her because of 
     the employee's uniformed service in order to be eligible for 
     reemployment.

                  Coverage of Employers and Positions

       USERRA applies to all covered employing offices of the 
     legislative branch as defined in 2 U.S.C. 1301(9) and 2 
     U.S.C. 1316(a)(2)(C).
       Yes. The definition of employer in the USERRA provision as 
     applied by the CAA includes an employing office that has 
     denied initial employment to an individual in violation of 
     USERRA's anti-discrimination provisions. An employing office 
     need not actually employ an individual to be liable under the 
     Act, if it has denied initial employment on the basis of the 
     individual's membership, application for membership, 
     performance of service, application for service, or 
     obligation for service in the uniformed services. Similarly, 
     the employing office would be liable if it denied initial 
     employment on the basis of the individual's action taken to 
     enforce a protection afforded to any person under USERRA, his 
     or her testimony or statement in connection with any USERRA 
     proceeding, assistance or other participation in a

[[Page H1808]]

     USERRA investigation, or the exercise of any other right 
     provided by the Act. For example, if the individual has been 
     denied initial employment because of his or her obligations 
     as a member of the National Guard or Reserves, the employing 
     office denying employment is liable under USERRA. Similarly, 
     if an employing office withdraws an offer of employment 
     because the individual is called upon to fulfill an 
     obligation in the uniformed services, the employing office 
     withdrawing the employment offer is also liable under USERRA.
       USERRA rights are not diminished because an eligible 
     employee holds a temporary, part-time, probationary, or 
     seasonal employment position. However, an employing office is 
     not required to reemploy an eligible employee if the 
     employment he or she left to serve in the uniformed services 
     was for a brief, nonrecurrent period and there is no 
     reasonable expectation that the employment would have 
     continued indefinitely or for a significant period. The 
     employing office bears the burden of proving this affirmative 
     defense.
       (a) If an eligible employee is laid off with recall rights, 
     or on a leave of absence, he or she is protected under 
     USERRA. If the eligible employee is on layoff and begins 
     service in the uniformed services, or is laid off while 
     performing service, he or she may be entitled to reemployment 
     on return if the employing office would have recalled the 
     employee to employment during the period of service. Similar 
     principles apply if the eligible employee is on a leave of 
     absence from work when he or she begins a period of service 
     in the uniformed services.
       (b) If the eligible employee is sent a recall notice during 
     a period of service in the uniformed services and cannot 
     resume the position of employment because of the service, he 
     or she still remains an eligible employee for purposes of the 
     Act. Therefore, if the employee is otherwise eligible, he or 
     she is entitled to reemployment following the conclusion of 
     the period of service, even if he or she did not respond to 
     the recall notice.
       (c) If the eligible employee is laid off before or during 
     service in the uniformed services, and the employing office 
     would not have recalled him or her during that period of 
     service, the employee is not entitled to reemployment 
     following the period of service simply because he or she is 
     an eligible employee. Reemployment rights under USERRA cannot 
     put the eligible employee in a better position than if he or 
     she had remained in the civilian employment position.
       Yes. USERRA applies to all eligible employees. There is no 
     exclusion for executive, managerial, or professional 
     employees.
       No. USERRA, as applied by the CAA, does not provide 
     protections for an independent contractor.

             COVERAGE OF SERVICE IN THE UNIFORMED SERVICES

       Yes. USERRA's definition of ``service in the uniformed 
     services'' includes a period for which an eligible employee 
     is absent from a position of employment for the purpose of an 
     examination to determine his or her fitness to perform duty 
     in the uniformed services. Military fitness examinations can 
     address more than physical or medical fitness, and include 
     evaluations for mental, educational, and other types of 
     fitness. Any examination to determine an eligible employee's 
     fitness for service is covered, whether it is an initial or 
     recurring examination. For example, a periodic medical 
     examination required of a Reserve component member to 
     determine fitness for continued service is covered.
       (a) USERRA's definition of ``service in the uniformed 
     services'' includes a period for which an eligible employee 
     is absent from employment for the purpose of performing 
     authorized funeral honors duty under 10 U.S.C. 12503 (members 
     of Reserve ordered to perform funeral honors duty) or 32 
     U.S.C. 115 (Member of Air or Army National Guard ordered to 
     perform funeral honors duty).
       (b) Funeral honors duty performed by persons who are not 
     members of the uniformed services, such as members of 
     veterans' service organizations, is not ``service in the 
     uniformed services.''
       Under a provision of the Public Health Security and 
     Bioterrorism Preparedness and Response Act of 2002, 42 U.S.C. 
     300hh 11(d)(3), ``service in the uniformed services'' 
     includes service performed as an intermittent disaster-
     response appointee upon activation of the National Disaster 
     Medical System or participation in an authorized training 
     program, even if the eligible employee is not a member of the 
     uniformed services.
       No. Only Federal National Guard Service is considered 
     ``service in the uniformed services.'' The National Guard has 
     a dual status. It is a Reserve component of the Army, or, in 
     the case of the Air National Guard, of the Air Force. 
     Simultaneously, it is a State military force subject to call-
     up by the State Governor for duty not subject to Federal 
     control, such as emergency duty in cases of floods or riots. 
     National Guard members may perform service under either 
     Federal or State authority, but only Federal National Guard 
     service is covered by USERRA.
       (a) National Guard service under Federal authority is 
     protected by USERRA. Service under Federal authority includes 
     active duty performed under Title 10 of the United States 
     Code. Service under Federal authority also includes duty 
     under Title 32 of the United States Code, such as active duty 
     for training, inactive duty training, or full-time National 
     Guard duty.
       (b) National Guard service under authority of State law is 
     not protected by USERRA. However, many States have laws 
     protecting the civilian job rights of National Guard members 
     who serve under State orders. Enforcement of those State laws 
     is not covered by USERRA or these regulations.
       Yes. Service in the commissioned corps of the Public Health 
     Service (PHS) is ``service in the uniformed services'' under 
     USERRA.
       Yes. In time of war or national emergency, the President 
     has authority to designate any category of persons as a 
     ``uniformed service'' for purposes of USERRA. If the 
     President exercises this authority, service as a member of 
     that category of persons would be ``service in the uniformed 
     services'' under USERRA.
       Yes. Attending a military service academy is considered 
     uniformed service for purposes of USERRA. There are four 
     service academies: The United States Military Academy (West 
     Point, New York), the United States Naval Academy (Annapolis, 
     Maryland), the United States Air Force Academy (Colorado 
     Springs, Colorado), and the United States Coast Guard Academy 
     (New London, Connecticut).
       Yes, under certain conditions.
       (a) Membership in the Reserve Officers Training Corps 
     (ROTC) or the Junior ROTC is not ``service in the uniformed 
     services.'' However, some Reserve and National Guard enlisted 
     members use a college ROTC program as a means of qualifying 
     for commissioned officer status. National Guard and Reserve 
     members in an ROTC program may at times, while participating 
     in that program, be receiving active duty and inactive duty 
     training service credit with their unit. In these cases, 
     participating in ROTC training sessions is considered 
     ``service in the uniformed services,'' and qualifies a person 
     for protection under USERRA's reemployment and anti-
     discrimination provisions.
       (b) Typically, an individual in a College ROTC program 
     enters into an agreement with a particular military service 
     that obligates such individual to either complete the ROTC 
     program and accept a commission or, in case he or she does 
     not successfully complete the ROTC program, to serve as an 
     enlisted member. Although an individual does not qualify for 
     reemployment protection, except as specified in (a) above, he 
     or she is protected under USERRA's anti-discrimination 
     provisions because, as a result of the agreement, he or she 
     has applied to become a member of the uniformed services and 
     has incurred an obligation to perform future service.
       No. Although the Commissioned Corps of the National Oceanic 
     and Atmospheric Administration (NOAA) is a ``uniformed 
     service'' for some purposes, it is not included in USERRA's 
     definition of this term. Service in the Civil Air Patrol and 
     the Coast Guard Auxiliary similarly is not considered 
     ``service in the uniformed services'' for purposes of USERRA. 
     Consequently, service performed in the Commissioned Corps of 
     the National Oceanic and Atmospheric Administration (NOAA), 
     the Civil Air Patrol, and the Coast Guard Auxiliary is not 
     protected by USERRA.

ABSENCE FROM A POSITION OF EMPLOYMENT NECESSITATED BY REASON OF SERVICE 
                       IN THE UNIFORMED SERVICES

       No. If absence from a position of employment is 
     necessitated by service in the uniformed services, and the 
     employee otherwise

[[Page H1809]]

     meets the Act's eligibility requirements, he or she has 
     reemployment rights under USERRA, even if the eligible 
     employee uses the absence for other purposes as well. An 
     eligible employee is not required to leave the employment 
     position for the sole purpose of performing service in the 
     uniformed services, although such uniformed service must be 
     the main reason for departure from employment. For example, 
     if the eligible employee is required to report to an out of 
     state location for military training and he or she spends 
     off-duty time during that assignment moonlighting as a 
     security guard or visiting relatives who live in that State, 
     the eligible employee will not lose reemployment rights 
     simply because he or she used some of the time away from the 
     job to do something other than attend the military training. 
     Also, if an eligible employee receives advance notification 
     of a mobilization order, and leaves his or her employment 
     position in order to prepare for duty, but the mobilization 
     is cancelled, the employee will not lose any reemployment 
     rights.
       No. At a minimum, an eligible employee must have enough 
     time after leaving the employment position to travel safely 
     to the uniformed service site and arrive fit to perform the 
     service. Depending on the specific circumstances, including 
     the duration of service, the amount of notice received, and 
     the location of the service, additional time to rest, or to 
     arrange affairs and report to duty, may be necessitated by 
     reason of service in the uniformed services. The following 
     examples help to explain the issue of the period of time 
     between leaving civilian employment and beginning service in 
     the uniformed services:
       (a) If the eligible employee performs a full overnight 
     shift for the civilian employer and travels directly from the 
     work site to perform a full day of uniformed service, the 
     eligible employee would not be considered fit to perform the 
     uniformed service. An absence from that work shift is 
     necessitated so that the eligible employee can report for 
     uniformed service fit for duty.
       (b) If the eligible employee is ordered to perform an 
     extended period of service in the uniformed services, he or 
     she may require a reasonable period of time off from the 
     civilian job to put his or her personal affairs in order, 
     before beginning the service. Taking such time off is also 
     necessitated by the uniformed service.
       (c) If the eligible employee leaves a position of 
     employment in order to enlist or otherwise perform service in 
     the uniformed services and, through no fault of his or her 
     own, the beginning date of the service is delayed, this delay 
     does not terminate any reemployment rights.
       (a) Yes. The eligible employee, or an appropriate officer 
     of the uniformed service in which his or her service is to be 
     performed, must notify the employing office that the employee 
     intends to leave the employment position to perform service 
     in the uniformed services, with certain exceptions described 
     below. In cases in which an eligible employee is employed by 
     more than one employing office, the employee, or an 
     appropriate officer of the uniformed service in which his or 
     her service is to be performed, must notify each employing 
     office that the employee intends to leave the employment 
     position to perform service in the uniformed services, with 
     certain exceptions described below.
       (b) The Department of Defense USERRA regulations at 32 CFR 
     104.3 provide that an ``appropriate officer'' can give notice 
     on the eligible employee's behalf. An ``appropriate officer'' 
     is a commissioned, warrant, or non-commissioned officer 
     authorized to give such notice by the military service 
     concerned.
       (c) The eligible employee's notice to the employing office 
     may be either oral or written. The notice may be informal and 
     does not need to follow any particular format.
       (d) Although USERRA does not specify how far in advance 
     notice must be given to the employing office, an eligible 
     employee should provide notice as far in advance as is 
     reasonable under the circumstances. In regulations 
     promulgated by the Department of Defense under USERRA, 32 CFR 
     104.6(a)(2)(i)(B), the Defense Department ``strongly 
     recommends that advance notice to civilian employers be 
     provided at least 30 days prior to departure for uniformed 
     service when it is feasible to do so.''
       The eligible employee is required to give advance notice of 
     pending service unless giving such notice is prevented by 
     military necessity, or is otherwise impossible or 
     unreasonable under all the circumstances.
       (a) Only a designated authority can make a determination of 
     ``military necessity,'' and such a determination is not 
     subject to judicial review. Guidelines for defining 
     ``military necessity'' appear in regulations issued by the 
     Department of Defense at 32 CFR 104.3. In general, these 
     regulations cover situations where a mission, operation, 
     exercise or requirement is classified, or could be 
     compromised or otherwise adversely affected by public 
     knowledge. In certain cases, the Secretary of Homeland 
     Security, in consultation with the Secretary of Defense, can 
     make a determination that giving of notice by intermittent 
     disaster-response appointees of the National Disaster Medical 
     System is precluded by ``military necessity.'' See 42 U.S.C. 
     300hh-11(d)(3)(B).
       (b) It may be impossible or unreasonable to give advance 
     notice under certain circumstances. Such circumstances may 
     include the unavailability of the eligible employee's 
     employing office or the employing office's representative, or 
     a requirement that the eligible employee report for uniformed 
     service in an extremely short period of time.
       No. The eligible employee is not required to ask for or get 
     the employing office's permission to leave to perform service 
     in the uniformed services. The eligible employee is only 
     required to give the employing office notice of pending 
     service.
       No. When the eligible employee leaves the employment 
     position to begin a period of service, he or she is not 
     required to tell the employing office that he or she intends 
     to seek reemployment after completing uniformed service. Even 
     if the eligible employee tells the employing office before 
     entering or completing uniformed service that he or she does 
     not intend to seek reemployment after completing the 
     uniformed service, the employee does not forfeit the right to 
     reemployment after completing service. The eligible employee 
     is not required to decide in advance of leaving the position 
     with the employing office, whether he or she will seek 
     reemployment after completing uniformed service.

                           Period of Service

       Yes. In general, the eligible employee may perform service 
     in the uniformed services for a cumulative period of up to 
     five (5) years and retain reemployment rights with the 
     employing office. The exceptions to this rule are described 
     below.
       No. The five-year period includes only the time the 
     eligible employee spends actually performing service in the 
     uniformed services. A period of absence from employment 
     before or after performing service in the uniformed services 
     does not count against the five-year limit. For example, 
     after the eligible employee completes a period of service in 
     the uniformed services, he or she is provided a certain 
     amount of time, depending upon the length of service, to 
     report back to work or submit an application for 
     reemployment. The period between completing the uniformed 
     service and reporting back to work or seeking reemployment 
     does not count against the five-year limit.
       No. An eligible employee is entitled to a leave of absence 
     for uniformed service for up to five years with each 
     employing office for whom he or she works or has worked. When 
     the eligible employee takes a position with a new employing 
     office, the five-year period begins again regardless of how 
     much service he or she performed while working in any 
     previous employment relationship. If an eligible employee is 
     employed by more than one employing office, a separate five-
     year period runs as to each employing office independently, 
     even if those employing offices share or co-determine the 
     employee's terms and conditions of employment. For example, 
     an eligible employee of the legislative branch may work part-
     time for two employing offices. In this case, a separate 
     five-year period would run as to the eligible employee's 
     employment with each respective employing office.
       It depends. Under the CAA, USERRA provides reemployment 
     rights to which an eligible employee may become entitled 
     beginning on or after January 23, 1996, but any uniformed 
     service performed before January 23, 1996, that was counted 
     against the service limitations of the previous law (the 
     Veterans Reemployment Rights Act), also counts against 
     USERRA's five-year limit.
       (a) USERRA creates the following exceptions to the five-
     year limit on service in the uniformed services:
       (1) Service that is required beyond five years to complete 
     an initial period of obligated service. Some military 
     specialties require an individual to serve more than five

[[Page H1810]]

     years because of the amount of time or expense involved in 
     training. If the eligible employee works in one of those 
     specialties, he or she has reemployment rights when the 
     initial period of obligated service is completed;
       (2) If the eligible employee was unable to obtain orders 
     releasing him or her from service in the uniformed services 
     before the expiration of the five-year period, and the 
     inability was not the employee's fault;
       (3)(i) Service performed to fulfill periodic National Guard 
     and Reserve training requirements as prescribed by 10 U.S.C. 
     10147 and 32 U.S.C. 502(a) and 503; and,
       (ii) Service performed to fulfill additional training 
     requirements determined and certified by a proper military 
     authority as necessary for the eligible employee's 
     professional development, or to complete skill training or 
     retraining;
       (4) Service performed in a uniformed service if he or she 
     was ordered to or retained on active duty under:
       (i) 10 U.S.C. 688 (involuntary active duty by a military 
     retiree);
       (ii) 10 U.S.C. 12301(a) (involuntary active duty in 
     wartime);
       (iii) 10 U.S.C. 12301(g) (retention on active duty while in 
     captive status);
       (iv) 10 U.S.C. 12302 (involuntary active duty during a 
     national emergency for up to 24 months);
        (v) 10 U.S.C. 12304 (involuntary active duty for an 
     operational mission for up to 270 days);
       (vi) 10 U.S.C. 12305 (involuntary retention on active duty 
     of a critical person during time of crisis or other specific 
     conditions);
       (vii) 14 U.S.C. 331 (involuntary active duty by retired 
     Coast Guard officer);
       (viii) 14 U.S.C. 332 (voluntary active duty by retired 
     Coast Guard officer);
       (ix) 14 U.S.C. 359 (involuntary active duty by retired 
     Coast Guard enlisted member);
       (x) 14 U.S.C. 360 (voluntary active duty by retired Coast 
     Guard enlisted member);
       (xi) 14 U.S.C. 367 (involuntary retention of Coast Guard 
     enlisted member on active duty); and
       (xii) 14 U.S.C. 712 (involuntary active duty by Coast Guard 
     Reserve member for natural or man-made disasters).
       (5) Service performed in a uniformed service if the 
     eligible employee was ordered to or retained on active duty 
     (other than for training) under any provision of law because 
     of a war or national emergency declared by the President or 
     the Congress, as determined by the Secretary concerned;
       (6) Service performed in a uniformed service if the 
     eligible employee was ordered to active duty (other than for 
     training) in support of an operational mission for which 
     personnel have been ordered to active duty under 10 U.S.C. 
     12304, as determined by a proper military authority;
       (7) Service performed in a uniformed service if the 
     eligible employee was ordered to active duty in support of a 
     critical mission or requirement of the uniformed services as 
     determined by the Secretary concerned; and,
       (8) Service performed as a member of the National Guard if 
     the eligible employee was called to respond to an invasion, 
     danger of invasion, rebellion, danger of rebellion, 
     insurrection, or the inability of the President with regular 
     forces to execute the laws of the United States.
       (b) Service performed in a uniformed service to mitigate 
     economic harm where the eligible employee's employing office 
     is in violation of its employment or reemployment obligations 
     to him or her.
       No. The eligible employee is not required to accommodate 
     his or her employing office's interests or concerns regarding 
     the timing, frequency, or duration of uniformed service. The 
     employing office cannot refuse to reemploy the eligible 
     employee because it believes that the timing, frequency or 
     duration of the service is unreasonable. However, the 
     employing office is permitted to bring its concerns over the 
     timing, frequency, or duration of the eligible employee's 
     service to the attention of the appropriate military 
     authority. Regulations issued by the Department of Defense at 
     32 CFR 104.4 direct military authorities to provide 
     assistance to an employer in addressing these types of 
     employment issues. The military authorities are required to 
     consider requests from employers of National Guard and 
     Reserve members to adjust scheduled absences from civilian 
     employment to perform service.

                       Application for Employment

       Yes. Upon completing service in the uniformed services, the 
     eligible employee must notify the pre-service employing 
     office of his or her intent to return to the employment 
     position by either reporting to work or submitting a timely 
     application for reemployment. Whether the eligible employee 
     is required to report to work or submit a timely application 
     for reemployment depends upon the length of service, as 
     follows:
       (a) Period of service less than 31 days or for a period of 
     any length for the purpose of a fitness examination. If the 
     period of service in the uniformed services was less than 31 
     days, or the eligible employee was absent from a position of 
     employment for a period of any length for the purpose of an 
     examination to determine his or her fitness to perform 
     service, the eligible employee must report back to the 
     employing office not later than the beginning of the first 
     full regularly-scheduled work period on the first full 
     calendar day following the completion of the period of 
     service, and the expiration of eight hours after a period 
     allowing for safe transportation from the place of that 
     service to the eligible employee's residence. For example, if 
     the eligible employee completes a period of service and 
     travel home, arriving at ten o'clock in the evening, he or 
     she cannot be required to report to the employing office 
     until the beginning of the next full regularly-scheduled work 
     period that begins at least eight hours after arriving home, 
     i.e., no earlier than six o'clock the next morning. If it is 
     impossible or unreasonable for the eligible employee to 
     report within such time period through no fault of his or her 
     own, he or she must report to the employing office as soon as 
     possible after the expiration of the eight-hour period.
       (b) Period of service more than 30 days but less than 181 
     days. If the eligible employee's period of service in the 
     uniformed services was for more than 30 days but less than 
     181 days, he or she must submit an application for 
     reemployment (written or oral) with the employing office not 
     later than 14 days after completing service. If it is 
     impossible or unreasonable for the eligible employee to apply 
     within 14 days through no fault of his or her own, he or she 
     must submit the application not later than the next full 
     calendar day after it becomes possible to do so.
       (c) Period of service more than 180 days. If the eligible 
     employee's period of service in the uniformed services was 
     for more than 180 days, he or she must submit an application 
     for reemployment (written or oral) not later than 90 days 
     after completing service.
       Yes. If the eligible employee is hospitalized for, or 
     convalescing from, an illness or injury incurred in, or 
     aggravated during, the performance of service, he or she must 
     report to or submit an application for reemployment to the 
     employing office at the end of the period necessary for 
     recovering from the illness or injury. This period may not 
     exceed two years from the date of the completion of service, 
     except that it must be extended by the minimum time necessary 
     to accommodate circumstances beyond the eligible employee's 
     control that make reporting within the period impossible or 
     unreasonable. This period for recuperation and recovery 
     extends the time period for reporting to or submitting an 
     application for reemployment to the employing office, and is 
     not applicable following reemployment.
       (a) If the eligible employee fails to timely report for or 
     apply for reemployment, he or she does not automatically 
     forfeit entitlement to USERRA's reemployment and other rights 
     and benefits. However, the eligible employee does become 
     subject to any conduct rules, established policy, and general 
     practices of the employing office pertaining to an absence 
     from scheduled work.
       (b) If reporting or submitting an employment application to 
     the employing office is impossible or unreasonable through no 
     fault of the eligible employee, he or she may report to the 
     employing office as soon as possible (in the case of a period 
     of service less than 31 days) or submit an application for 
     reemployment to the employing office by the next full 
     calendar day after it becomes possible to do so (in the case 
     of a period of service from 31 to 180 days), and the eligible 
     employee will be considered to have timely reported or 
     applied for reemployment.
       An application for reemployment need not follow any 
     particular format. The eligible employee may apply orally or 
     in writing. The application should indicate that the employee 
     is a former employee returning from service in the uniformed 
     services and that he or she seeks reemployment with the pre-
     service employing office. The eligible employee is permitted 
     but not required to identify a particular reemployment 
     position in which he or she is interested.
       The application must be submitted to the pre-service 
     employing office or to an agent or representative of the 
     employing office who has apparent responsibility for 
     receiving employment applications. Depending upon the 
     circumstances, such a person could be a personnel or human 
     resources officer, or a first-line supervisor.

[[Page H1811]]


  

       No. The eligible employee has reemployment rights with the 
     pre-service employing office provided that he or she makes a 
     timely reemployment application to that employing office. The 
     eligible employee may seek or obtain employment with an 
     employer other than the pre-service employing office during 
     the period of time within which a reemployment application 
     must be made, without giving up reemployment rights with the 
     pre-service employing office. However, such alternative 
     employment during the application period should not be of a 
     type that would constitute a cause for the employing office 
     to discipline or terminate the employee following 
     reemployment. For instance, if the employing office forbids 
     outside employment, violation of such a policy may constitute 
     a cause for discipline or even termination.
       Yes, if the period of service exceeded 30 days and if 
     requested by the employing office to do so. If the eligible 
     employee submits an application for reemployment after a 
     period of service of more than 30 days, he or she must, upon 
     the request of the employing office, provide documentation to 
     establish that:
       (a) The reemployment application is timely;
       (b) The eligible employee has not exceeded the five-year 
     limit on the duration of service (subject to the exceptions 
     listed at Sec.  1002.103); and,
       (c) The eligible employee's separation or dismissal from 
     service was not disqualifying.
       Yes. The employing office is not permitted to delay or deny 
     reemployment by demanding documentation that does not exist 
     or is not readily available. The eligible employee is not 
     liable for administrative delays in the issuance of military 
     documentation. If the eligible employee is re-employed after 
     an absence from employment for more than 90 days, the 
     employing office may require that he or she submit the 
     documentation establishing entitlement to reemployment before 
     treating the employee as not having had a break in service 
     for pension purposes. If the documentation is received after 
     reemployment and it shows that the eligible employee is not 
     entitled to reemployment, the employing office may terminate 
     employment and any rights or benefits that the employee may 
     have been granted.
       (a) Documents that satisfy the requirements of USERRA 
     include the following:
       (1) DD (Department of Defense) 214 Certificate of Release 
     or Discharge from Active Duty;
       (2) Copy of duty orders prepared by the facility where the 
     orders were fulfilled carrying an endorsement indicating 
     completion of the described service;
       (3) Letter from the commanding officer of a Personnel 
     Support Activity or someone of comparable authority;
       (4) Certificate of completion from military training 
     school;
       (5) Discharge certificate showing character of service; 
     and,
       (6) Copy of extracts from payroll documents showing periods 
     of service;
       (7) Letter from NDMS Team Leader or Administrative Officer 
     verifying dates and times of NDMS training or Federal 
     activation.
       (b) The types of documents that are necessary to establish 
     eligibility for reemployment will vary from case to case. Not 
     all of these documents are available or necessary in every 
     instance to establish reemployment eligibility.

                          Character of Service

       USERRA does not require any particular form of discharge or 
     separation from service. However, even if the employee is 
     otherwise eligible for reemployment, he or she will be 
     disqualified if the characterization of service falls within 
     one of four categories. USERRA requires that the employee not 
     have received one of these types of discharge.
       Reemployment rights are terminated if the employee is:
       (a) Separated from uniformed service with a dishonorable or 
     bad conduct discharge;
       (b) Separated from uniformed service under other than 
     honorable conditions, as characterized by regulations of the 
     uniformed service;
       (c) A commissioned officer dismissed as permitted under 10 
     U.S.C. 1161(a) by sentence of a general court-martial; in 
     commutation of a sentence of a general court-martial; or, in 
     time of war, by order of the President; or,
       (d) A commissioned officer dropped from the rolls under 10 
     U.S.C. 1161(b) due to absence without authority for at least 
     three months; separation by reason of a sentence to 
     confinement adjudged by a court-martial; or, a sentence to 
     confinement in a Federal or State penitentiary or 
     correctional institution.
       The branch of service in which the employee performs the 
     tour of duty determines the characterization of service.
       Yes. A military review board has the authority to 
     prospectively or retroactively upgrade a disqualifying 
     discharge or release. A retroactive upgrade would restore 
     reemployment rights providing the employee otherwise meets 
     the Act's eligibility criteria.
       No. A retroactive upgrade allows the employee to obtain 
     reinstatement with the former employing office, provided the 
     employee otherwise meets the Act's eligibility criteria. Back 
     pay and other benefits such as pension plan credits 
     attributable to the time period between discharge and the 
     retroactive upgrade are not required to be restored by the 
     employing office in this situation.

                      Employer Statutory Defenses

       (a) Even if the employee is otherwise eligible for 
     reemployment benefits, the employing office is not required 
     to reemploy him or her if the employing office establishes 
     that its circumstances have so changed as to make 
     reemployment impossible or unreasonable. For example, an 
     employing office may be excused from re-employing the 
     eligible employee where there has been an intervening 
     reduction in force that would have included that employee. 
     The employing office may not, however, refuse to reemploy the 
     eligible employee on the basis that another employee was 
     hired to fill the reemployment position during the employee's 
     absence, even if reemployment might require the termination 
     of that replacement employee;
       (b) Even if the employee is otherwise eligible for 
     reemployment benefits, the employing office is not required 
     to reemploy him or her if it establishes that assisting the 
     eligible employee in becoming qualified for reemployment 
     would impose an undue hardship, as defined in Sec. 1002.5(s) 
     and discussed in Sec. 1002.198, on the employing office; or,
       (c) Even if the employee is otherwise eligible for 
     reemployment benefits, the employing office is not required 
     to reemploy him or her if it establishes that the employment 
     position vacated by the eligible employee in order to perform 
     service in the uniformed services was for a brief, 
     nonrecurrent period and there was no reasonable expectation 
     that the employment would continue indefinitely or for a 
     significant period.
       (d) The employing office defenses included in this section 
     are affirmative ones, and the employing office carries the 
     burden to prove by a preponderance of the evidence that any 
     one or more of these defenses is applicable.

  Subpart D: Rights, Benefits, and Obligations of Persons Absent from 
          Employment Due to Service in the Uniformed Services

                     Furlough and Leave of Absence

                          Health Plan Coverage

[[Page H1812]]



                     Furlough and Leave of Absence

       During a period of service in the uniformed services, the 
     eligible employee is deemed to be on leave of absence from 
     the employing office. In this status, the eligible employee 
     is entitled to the non-seniority rights and benefits 
     generally provided by the employing office to other employees 
     with similar seniority, status, and pay that are on leave of 
     absence. Entitlement to these non-seniority rights and 
     benefits is not dependent on how the employing office 
     characterizes the eligible employee's status during a period 
     of service. For example, if the employing office 
     characterizes the employee as ``terminated'' during the 
     period of uniformed service, this characterization cannot be 
     used to avoid USERRA's requirement that the employee be 
     deemed on leave of absence, and therefore, entitled to the 
     non-seniority rights and benefits generally provided to 
     employees on leave of absence.
       (a) The non-seniority rights and benefits to which an 
     eligible employee is entitled during a period of service are 
     those that the employing office provides to similarly 
     situated employees by an agreement, policy, practice, or plan 
     in effect at the employee's workplace. These rights and 
     benefits include those in effect at the beginning of the 
     eligible employee's employment and those established after 
     employment began. They also include those rights and benefits 
     that become effective during the eligible employee's period 
     of service and that are provided to similarly situated 
     employees on leave of absence.
       (b) If the non-seniority benefits to which employees on 
     leave of absence are entitled vary according to the type of 
     leave, the eligible employee must be given the most favorable 
     treatment accorded to any comparable form of leave when he or 
     she performs service in the uniformed services. In order to 
     determine whether any two types of leave are comparable, the 
     duration of the leave may be the most significant factor to 
     compare. For instance, a two-day funeral leave will not be 
     ``comparable'' to an extended leave for service in the 
     uniformed service. In addition to comparing the duration of 
     the absences, other factors such as the purpose of the leave 
     and the ability of the employee to choose when to take the 
     leave should also be considered.
       (c) As a general matter, accrual of vacation leave is 
     considered to be a non-seniority benefit that must be 
     provided by an employing office to an eligible employee on a 
     military leave of absence only if the employing office 
     provides that benefit to similarly situated employees on 
     comparable leaves of absence.
       (d) Nothing in this section gives the eligible employee 
     rights or benefits to which the employee otherwise would not 
     be entitled if the employee had remained continuously 
     employed with the employing office.
       Yes. If the employing office provides additional benefits 
     such as full or partial pay when the eligible employee 
     performs service, the employing office is not excused from 
     providing other rights and benefits to which the employee is 
     entitled under the Act.
       If employment is interrupted by a period of service in the 
     uniformed services and the eligible employee knowingly 
     provides written notice of intent not to return to the 
     position of employment after service in the uniformed 
     services, he or she is not entitled to those non-seniority 
     rights and benefits. The eligible employee's written notice 
     does not waive entitlement to any other rights to which he or 
     she is entitled under the Act, including the right to 
     reemployment after service.
       (a) If employment is interrupted by a period of service, 
     the eligible employee must be permitted upon request to use 
     any accrued vacation, annual, or similar leave with pay 
     during the period of service, in order to continue his or her 
     civilian pay. However, the eligible employee is not entitled 
     to use sick leave that accrued with the employing office 
     during a period of service in the uniformed services, unless 
     the employing office allows employees to use sick leave for 
     any reason, or allows other similarly situated employees on 
     comparable furlough or leave of absence to use accrued paid 
     sick leave. Sick leave is usually not comparable to annual or 
     vacation leave; it is generally intended to provide income 
     when the employee or a family member is ill and the employee 
     is unable to work.
       (b) The employing office may not require the eligible 
     employee to use accrued vacation, annual, or similar leave 
     during a period of service in the uniformed services.

                          Health Plan Coverage

       (a) USERRA defines a health plan to include an insurance 
     policy or contract, medical or hospital service agreement, 
     membership or subscription contract, or arrangement under 
     which the employee's health services are provided or the 
     expenses of those services are paid.
       (b) USERRA covers group health plans as defined in the 
     Employee Retirement Income Security Act of 1974 (ERISA) at 29 
     U.S.C. 1191b(a). USERRA applies to group health plans that 
     are subject to ERISA, and plans that are not subject to 
     ERISA, such as those sponsored by the Federal Government.
       (c) USERRA covers multi-employer plans maintained pursuant 
     to one or more collective bargaining agreements between 
     employers and employee organizations. USERRA applies to 
     multi-employer plans as they are defined in ERISA at 29 
     U.S.C. 1002(37). USERRA contains provisions that apply 
     specifically to multi-employer plans in certain situations.
       If the eligible employee has coverage under a health plan 
     in connection with his or her employment, the plan must 
     permit the employee to elect to continue the coverage for a 
     certain period of time as described below:
       (a) When the eligible employee is performing service in the 
     uniformed services, he or she is entitled to continuing 
     coverage for himself or herself (and dependents if the plan 
     offers dependent coverage) under a health plan provided in 
     connection with the employment. The plan must allow the 
     eligible employee to elect to continue coverage for a period 
     of time that is the lesser of:
       (1) The 24-month period beginning on the date on which the 
     eligible employee's absence for the purpose of performing 
     service begins; or,
       (2) The period beginning on the date on which the eligible 
     employee's absence for the purpose of performing service 
     begins, and ending on the date on which he or she fails to 
     return from service or apply for a position of employment as 
     provided under sections 1002.115-123 of these regulations.
       (b) USERRA does not require the employing office to 
     establish a health plan if there is no health plan coverage 
     in connection with the employment, or, where there is a plan, 
     to provide any particular type of coverage.
       (c) USERRA does not require the employing office to permit 
     the eligible employee to initiate new health plan coverage at 
     the beginning of a period of service if he or she did not 
     previously have such coverage.
       USERRA does not specify requirements for electing 
     continuing coverage. Health plan administrators may develop 
     reasonable requirements addressing how continuing coverage 
     may be elected, consistent with the terms of the plan and the 
     Act's exceptions to the requirement that the employee give 
     advance notice of service in the uniformed services. For 
     example, the eligible employee cannot be precluded from 
     electing continuing health plan coverage under circumstances 
     where it is impossible or unreasonable for him or her to make 
     a timely election of coverage.
       (a) If the eligible employee performs service in the 
     uniformed service for fewer than 31 days, he or she cannot be 
     required to pay more than the regular employee share, if any, 
     for health plan coverage.
       (b) If the eligible employee performs service in the 
     uniformed service for 31 or more days, he or she may be 
     required to pay no more than 102% of the full premium under 
     the plan, which represents the employing office's share plus 
     the employee's share, plus 2% for administrative costs.

[[Page H1813]]

       (c) USERRA does not specify requirements for methods of 
     paying for continuing coverage. Health plan administrators 
     may develop reasonable procedures for payment, consistent 
     with the terms of the plan.
       The actions a plan administrator may take regarding the 
     provision or cancellation of an eligible employee's 
     continuing coverage depend on whether the employee is excused 
     from the requirement to give advance notice, whether the plan 
     has established reasonable rules for election of continuation 
     coverage, and whether the plan has established reasonable 
     rules for the payment for continuation coverage.
       (a) No notice of service and no election of continuation 
     coverage: If an employing office provides employment-based 
     health coverage to an eligible employee who leaves employment 
     for uniformed service without giving advance notice of 
     service, the plan administrator may cancel the employee's 
     health plan coverage upon the employee's departure from 
     employment for uniformed service. However, in cases in which 
     an eligible employee's failure to give advance notice of 
     service was excused under the statute because it was 
     impossible, unreasonable, or precluded by military necessity, 
     the plan administrator must reinstate the employee's health 
     coverage retroactively upon his or her election to continue 
     coverage and payment of all unpaid amounts due, and the 
     employee must incur no administrative reinstatement costs. In 
     order to qualify for an exception to the requirement of 
     timely election of continuing health care, an eligible 
     employee must first be excused from giving notice of service 
     under the statute.
       (b) Notice of service but no election of continuing 
     coverage: Plan administrators may develop reasonable 
     requirements addressing how continuing coverage may be 
     elected. Where health plans are also covered under the 
     Consolidated Omnibus Budget Reconciliation Act of 1985, 26 
     U.S.C. 4980B (COBRA), it may be reasonable for a health plan 
     administrator to adopt COBRA-compliant rules regarding 
     election of continuing coverage, as long as those rules do 
     not conflict with any provision of USERRA or this rule. If an 
     employing office provides employment-based health coverage to 
     an eligible employee who leaves employment for uniformed 
     service for a period of service in excess of 30 days after 
     having given advance notice of service but without making an 
     election regarding continuing coverage, the plan 
     administrator may cancel the employee's health plan coverage 
     upon the employee's departure from employment for uniformed 
     service, but must reinstate coverage without the imposition 
     of administrative reinstatement costs under the following 
     conditions:
       (1) Plan administrators who have developed reasonable rules 
     regarding the period within which an employee may elect 
     continuing coverage must permit retroactive reinstatement of 
     uninterrupted coverage to the date of departure if the 
     eligible employee elects continuing coverage and pays all 
     unpaid amounts due within the periods established by the 
     plan;
       (2) In cases in which plan administrators have not 
     developed rules regarding the period within which an employee 
     may elect continuing coverage, the plan must permit 
     retroactive reinstatement of uninterrupted coverage to the 
     date of departure upon the eligible employee's election and 
     payment of all unpaid amounts at any time during the period 
     established in section 1002.164(a).
       (c) Election of continuation coverage without timely 
     payment: Health plan administrators may adopt reasonable 
     rules allowing cancellation of coverage if timely payment is 
     not made. Where health plans are covered under COBRA, it may 
     be reasonable for a health plan administrator to adopt COBRA-
     compliant rules regarding payment for continuing coverage, as 
     long as those rules do not conflict with any provision of 
     USERRA or this rule.
       (a) If health plan coverage for the eligible employee or a 
     dependent was terminated by reason of service in the 
     uniformed services, that coverage must be reinstated upon 
     reemployment. An exclusion or waiting period may not be 
     imposed in connection with the reinstatement of coverage upon 
     reemployment, if an exclusion or waiting period would not 
     have been imposed had coverage not been terminated by reason 
     of such service.
       (b) USERRA permits a health plan to impose an exclusion or 
     waiting period as to illnesses or injuries determined by the 
     Secretary of Veterans Affairs to have been incurred in, or 
     aggravated during, performance of service in the uniformed 
     services. The determination that the employee's illness or 
     injury was incurred in, or aggravated during, the performance 
     of service may only be made by the Secretary of Veterans 
     Affairs or his or her representative. Other coverage, for 
     injuries or illnesses that are not service-related (or for 
     the employee's dependents, if he or she has dependent 
     coverage), must be reinstated subject to paragraph (a) of 
     this section.
       USERRA requires the employing office to reinstate or direct 
     the reinstatement of health plan coverage upon request at 
     reemployment. USERRA permits but does not require the 
     employing office to allow the employee to delay reinstatement 
     of health plan coverage until a date that is later than the 
     date of reemployment.
       Liability under a multi-employer plan for employer 
     contributions and benefits in connection with USERRA's health 
     plan provisions must be allocated either as the plan sponsor 
     provides, or, if the sponsor does not provide, to the 
     eligible employee's last employer before his or her service. 
     If the last employer is no longer functional, liability for 
     continuing coverage is allocated to the health plan.
       (a) Some employees receive health plan benefits provided 
     pursuant to a multi-employer plan that utilizes a health 
     benefits account system in which an employee accumulates 
     prospective health benefit eligibility, also commonly 
     referred to as ``dollar bank,'' ``credit bank,'' and ``hour 
     bank'' plans. In such cases, where an employee with a 
     positive health benefits account balance elects to continue 
     the coverage, the employee may further elect either option 
     below:
       (1) The eligible employee may expend his or her health 
     account balance during an absence from employment due to 
     service in the uniformed services in lieu of paying for the 
     continuation of coverage as set out in Sec. 1002.166. If an 
     eligible employee's health account balance becomes depleted 
     during the applicable period provided for in 
     Sec. 1002.164(a), the employee must be permitted, at his or 
     her option, to continue coverage pursuant to Sec. 1002.166. 
     Upon reemployment, the plan must provide for immediate 
     reinstatement of the eligible employee as required by 
     Sec. 1002.168, but may require the employee to pay the cost 
     of the coverage until the employee earns the credits 
     necessary to sustain continued coverage in the plan.
       (2) The eligible employee may pay for continuation coverage 
     as set out in Sec. 1002.166, in order to maintain intact his 
     or her account balance as of the beginning date of the 
     absence from employment due to service in the uniformed 
     services. This option permits the eligible employee to resume 
     usage of the account balance upon reemployment.
       (b) Employers or plan administrators providing such plans 
     should counsel employees of their options set out in this 
     subsection.

              Subpart E: Reemployment Rights and Benefits

                          Prompt Reemployment

                         Reemployment Position

                     Seniority Rights and Benefits

                           Disabled Employees

[[Page H1814]]



                              Rate of Pay

                      Protection Against Discharge

                         Pension Plan Benefits

                          Prompt Reemployment

       The employing office must promptly reemploy the employee 
     when he or she returns from a period of service if the 
     employee meets the Act's eligibility criteria as described in 
     Subpart C of these regulations.
       ``Prompt reemployment'' means as soon as practicable under 
     the circumstances of each case. Absent unusual circumstances, 
     reemployment must occur within two weeks of the eligible 
     employee's application for reemployment. For example, prompt 
     reinstatement after a weekend National Guard duty generally 
     means the next regularly scheduled working day. On the other 
     hand, prompt reinstatement following several years of active 
     duty may require more time, because the employing office may 
     have to reassign or give notice to another employee who 
     occupied the returning employee's position.

                         Reemployment Position

       As a general rule, the eligible employee is entitled to 
     reemployment in the job position that he or she would have 
     attained with reasonable certainty if not for the absence due 
     to uniformed service. This position is known as the escalator 
     position. The principle behind the escalator position is 
     that, if not for the period of uniformed service, the 
     eligible employee could have been promoted (or, 
     alternatively, demoted, transferred, or laid off) due to 
     intervening events. The escalator principle requires that the 
     eligible employee be reemployed in a position that reflects 
     with reasonable certainty the pay, benefits, seniority, and 
     other job perquisites, that he or she would have attained if 
     not for the period of service. Depending upon the specific 
     circumstances, the employing office may have the option, or 
     be required, to reemploy the eligible employee in a position 
     other than the escalator position.
       In all cases, the starting point for determining the proper 
     reemployment position is the escalator position, which is the 
     job position that the eligible employee would have attained 
     if his or her continuous employment had not been interrupted 
     due to uniformed service. Once this position is determined, 
     the employing office may have to consider several factors 
     before determining the appropriate reemployment position in 
     any particular case. Such factors may include the eligible 
     employee's length of service, qualifications, and disability, 
     if any. The actual reemployment position may be either the 
     escalator position; the pre-service position; a position 
     comparable to the escalator or pre-service position; or, the 
     nearest approximation to one of these positions.
       (a) Yes. The reemployment position includes the seniority, 
     status, and rate of pay that an eligible employee would 
     ordinarily have attained in that position given his or her 
     job history, including prospects for future earnings and 
     advancement. The employing office must determine the 
     seniority rights, status, and rate of pay as though the 
     eligible employee had been continuously employed during the 
     period of service. The seniority rights, status, and pay of 
     an employment position include those established (or changed) 
     by a collective bargaining agreement, employer policy, or 
     employment practice. The sources of seniority rights, status, 
     and pay include agreements, policies, and practices in effect 
     at the beginning of the eligible employee's service, and any 
     changes that may have occurred during the period of service. 
     In particular, the eligible employee's status in the 
     reemployment position could include opportunities for 
     advancement, general working conditions, job location, shift 
     assignment, rank, responsibility, and geographical location.
       (b) If an opportunity for promotion, or eligibility for 
     promotion, that the eligible employee missed during service 
     is based on a skills test or examination, then the employing 
     office should give him or her a reasonable amount of time to 
     adjust to the employment position and then give a skills test 
     or examination. No fixed amount of time for permitting 
     adjustment to reemployment will be deemed reasonable in all 
     cases. However, in determining a reasonable amount of time to 
     permit an eligible employee to adjust to reemployment before 
     scheduling a makeup test or examination, an employing office 
     may take into account a variety of factors, including but not 
     limited to the length of time the returning employee was 
     absent from work, the level of difficulty of the test itself, 
     the typical time necessary to prepare or study for the test, 
     the duties and responsibilities of the reemployment position 
     and the promotional position, and the nature and 
     responsibilities of the service member while serving in the 
     uniformed service. If the eligible employee is successful on 
     the makeup exam and, based on the results of that exam, there 
     is a reasonable certainty that he or she would have been 
     promoted, or made eligible for promotion, during the time 
     that the employee served in the uniformed service, then the 
     promotion or eligibility for promotion must be made effective 
     as of the date it would have occurred had employment not been 
     interrupted by uniformed service.
       Yes. The Act does not prohibit lawful adverse job 
     consequences that result from the eligible employee's 
     restoration on the seniority ladder. Depending on the 
     circumstances, the escalator principle may cause an eligible 
     employee to be reemployed in a higher or lower position, laid 
     off, or even terminated. For example, if an eligible 
     employee's seniority or job classification would have 
     resulted in the employee being laid off during the period of 
     service, and the layoff continued after the date of 
     reemployment, reemployment would reinstate the employee to 
     layoff status. Similarly, the status of the reemployment 
     position requires the employing office to assess what would 
     have happened to such factors as the eligible employee's 
     opportunities for advancement, working conditions, job 
     location, shift assignment, rank, responsibility, and 
     geographical location, if he or she had remained continuously 
     employed. The reemployment position may involve transfer to 
     another shift or location, more or less strenuous working 
     conditions, or changed opportunities for advancement, 
     depending upon the application of the escalator principle.
       Once the eligible employee's escalator position is 
     determined, other factors may allow, or require, the 
     employing office to reemploy the employee in a position other 
     than the escalator position. These factors, which are 
     explained in Sec. Sec. 1002.196 through 1002.199, are:
       (a) The length of the eligible employee's most recent 
     period of uniformed service;
       (b) The eligible employee's qualifications; and,
       (c) Whether the eligible employee has a disability incurred 
     or aggravated during uniformed service.
       Following a period of service in the uniformed services of 
     less than 91 days, the eligible employee must be reemployed 
     according to the following priority:
       (a) The eligible employee must be reemployed in the 
     escalator position. He or she must be qualified to perform 
     the duties of this position. The employing office must make 
     reasonable efforts to help the eligible employee become 
     qualified to perform the duties of this position.
       (b) If the eligible employee is not qualified to perform 
     the duties of the escalator position after reasonable efforts 
     by the employing office, the employee must be reemployed in 
     the position in which he or she was employed on the date that 
     the period of service began. The eligible employee must be 
     qualified to perform the duties of this position. The 
     employing office must make reasonable efforts to help the 
     eligible employee become qualified to perform the duties of 
     this position.
       (c) If the eligible employee is not qualified to perform 
     the duties of the escalator position or the pre-service 
     position, after reasonable efforts by the employing office, 
     he or she must be reemployed in any other position that is 
     the nearest approximation first to the escalator position and 
     then to the pre-service position. The eligible employee must 
     be qualified to perform the duties of this position. The 
     employing office must make reasonable efforts to help the 
     eligible employee

[[Page H1815]]

     become qualified to perform the duties of this position.
       Following a period of service of more than 90 days, the 
     eligible employee must be reemployed according to the 
     following priority:
       (a) The eligible employee must be reemployed in the 
     escalator position or a position of like seniority, status, 
     and pay. He or she must be qualified to perform the duties of 
     this position. The employing office must make reasonable 
     efforts to help the eligible employee become qualified to 
     perform the duties of this position.
       (b) If the eligible employee is not qualified to perform 
     the duties of the escalator position or a like position after 
     reasonable efforts by the employing office, the employee must 
     be reemployed in the position in which he or she was employed 
     on the date that the period of service began or in a position 
     of like seniority, status, and pay. The eligible employee 
     must be qualified to perform the duties of this position. The 
     employing office must make reasonable efforts to help the 
     eligible employee become qualified to perform the duties of 
     this position.
       (c) If the eligible employee is not qualified to perform 
     the duties of the escalator position, the pre-service 
     position, or a like position, after reasonable efforts by the 
     employing office, he or she must be reemployed in any other 
     position that is the nearest approximation first to the 
     escalator position and then to the pre-service position. The 
     eligible employee must be qualified to perform the duties of 
     this position. The employing office must make reasonable 
     efforts to help the eligible employee become qualified to 
     perform the duties of this position.
       The eligible employee must be qualified for the 
     reemployment position. The employing office must make 
     reasonable efforts to help the eligible employee become 
     qualified to perform the duties of this position. The 
     employing office is not required to reemploy the eligible 
     employee on his or her return from service if he or she 
     cannot, after reasonable efforts by the employing office, 
     qualify for the appropriate reemployment position.
       (a)(1) ``Qualified'' means that the employee has the 
     ability to perform the essential tasks of the position. The 
     employee's inability to perform one or more nonessential 
     tasks of a position does not make him or her unqualified.
       (2) Whether a task is essential depends on several factors, 
     and these factors include but are not limited to:
       (i) The employing office's judgment as to which functions 
     are essential;
       (ii) Written job descriptions developed before the hiring 
     process begins;
       (iii) The amount of time on the job spent performing the 
     function;
       (iv) The consequences of not requiring the individual to 
     perform the function;
       (v) The terms of a collective bargaining agreement;
       (vi) The work experience of past incumbents in the job; 
     and/or
       (vii) The current work experience of incumbents in similar 
     jobs.
       (b) Only after the employing office makes reasonable 
     efforts, as defined in Sec. 1002.5(p), may it determine that 
     the otherwise eligible employee is not qualified for the 
     reemployment position. These reasonable efforts must be made 
     at no cost to the employee.
       If two or more eligible employees are entitled to 
     reemployment in the same position and more than one employee 
     has reported or applied for employment in that position, the 
     employee who first left the position for uniformed service 
     has the first priority on reemployment in that position. The 
     remaining employee (or employees) is entitled to be 
     reemployed in a position similar to that in which the 
     employee would have been re-employed according to the rules 
     that normally determine a reemployment position, as set out 
     in Sec. Sec. 1002.196 and 1002.197.

                     Seniority Rights and Benefits

       The eligible employee is entitled to the seniority and 
     seniority-based rights and benefits that he or she had on the 
     date the uniformed service began, plus any seniority and 
     seniority-based rights and benefits that the employee would 
     have attained if he or she had remained continuously 
     employed. The eligible employee is not entitled to any 
     benefits to which he or she would not have been entitled had 
     the employee been continuously employed with the employing 
     office. In determining entitlement to seniority and 
     seniority-based rights and benefits, the period of absence 
     from employment due to or necessitated by uniformed service 
     is not considered a break in employment. The rights and 
     benefits protected by USERRA upon reemployment include those 
     provided by the employing office and those required by 
     statute.
       For example, under USERRA, a reemployed service member 
     would be eligible for leave under the Family and Medical 
     Leave Act of 1993, 29 U.S.C. 2601-2654 (FMLA), if the number 
     of months and the number of hours of work for which the 
     service member was employed by the employing office, together 
     with the number of months and the number of hours of work for 
     which the service member would have been employed by the 
     employing office during the period of uniformed service, meet 
     FMLA's eligibility requirements. In the event that a service 
     member is denied FMLA leave for failing to satisfy the FMLA's 
     hours of work requirement due to absence from employment 
     necessitated by uniformed service, the service member may 
     have a cause of action under USERRA but not under the FMLA.
       No. USERRA does not require the employing office to adopt a 
     formal seniority system. USERRA defines seniority as 
     longevity in employment together with any employment benefits 
     that accrue with, or are determined by, longevity in 
     employment. In the absence of a formal seniority system, such 
     as one established through collective bargaining, USERRA 
     looks to the custom and practice in the place of employment 
     to determine the eligible employee's entitlement to any 
     employment benefits that accrue with, or are determined by, 
     longevity in employment.
       A seniority-based right or benefit is one that accrues 
     with, or is determined by, longevity in employment. 
     Generally, whether a right or benefit is seniority-based 
     depends on three factors:
       (a) Whether the right or benefit is a reward for length of 
     service rather than a form of short-term compensation for 
     work performed;
       (b) Whether it is reasonably certain that the eligible 
     employee would have received the right or benefit if he or 
     she had remained continuously employed during the period of 
     service; and,
       (c) Whether it is the employing office's actual custom or 
     practice to provide or withhold the right or benefit as a 
     reward for length of service. Provisions of an employment 
     contract or policies in the employee handbook are not 
     controlling if the employing office's actual custom or 
     practice is different from what is written in the contract or 
     handbook.
       A reasonable certainty is a high probability that the 
     eligible employee would have received the seniority or 
     seniority-based right or benefit if he or she had been 
     continuously employed. The eligible employee does not have to 
     establish that he or she would have received the benefit as 
     an absolute certainty. The eligible employee can demonstrate 
     a reasonable certainty that he or she would have received the 
     seniority right or benefit by showing that other employees 
     with seniority similar to that which the employee would have 
     had if he or she had remained continuously employed received 
     the right or benefit. The employing office cannot withhold 
     the right or benefit based on an assumption that a series of 
     unlikely events could have prevented the eligible employee 
     from gaining the right or benefit.

                           Disabled Employees

       Yes. A disabled service member is entitled, to the same 
     extent as any other individual, to the escalator position he 
     or she would have attained but for uniformed service. If the 
     eligible employee has a disability incurred in, or aggravated 
     during, the period of service in the uniformed services, the 
     employing office must make reasonable efforts to accommodate 
     that disability and to help the employee become qualified to 
     perform the duties of his or her reemployment position. If 
     the eligible employee is not qualified for reemployment in 
     the escalator position because of a disability after 
     reasonable efforts by the employing office to accommodate the 
     disability and to help the employee to become qualified, the 
     employee must be reemployed in a position according to the 
     following priority. The employing office must make reasonable 
     efforts to accommodate the eligible employee's disability and 
     to help him or her to become qualified to perform the duties 
     of one of these positions:
       (a) A position that is equivalent in seniority, status, and 
     pay to the escalator position; or,
       (b) A position that is the nearest approximation to the 
     equivalent position, consistent with the circumstances of the 
     eligible employee's case, in terms of seniority, status, and 
     pay. A position that is the nearest approximation to the 
     equivalent position may be a higher or lower position, 
     depending on the circumstances.

[[Page H1816]]


  

       (a) USERRA requires that the eligible employee be qualified 
     for the reemployment position regardless of any disability. 
     The employing office must make reasonable efforts to help the 
     eligible employee to become qualified to perform the duties 
     of this position. The employing office is not required to 
     reemploy the eligible employee on his or her return from 
     service if he or she cannot, after reasonable efforts by the 
     employing office, qualify for the appropriate reemployment 
     position.
       (b) ``Qualified'' has the same meaning here as in 
     Sec. 1002.198.

                              Rate of Pay

       The eligible employee's rate of pay is determined by 
     applying the same escalator principles that are used to 
     determine the reemployment position, as follows:
       (a) If the eligible employee is reemployed in the escalator 
     position, the employing office must compensate him or her at 
     the rate of pay associated with the escalator position. The 
     rate of pay must be determined by taking into account any pay 
     increases, differentials, step increases, merit increases, or 
     periodic increases that the eligible employee would have 
     attained with reasonable certainty had he or she remained 
     continuously employed during the period of service. In 
     addition, when considering whether merit or performance 
     increases would have been attained with reasonable certainty, 
     an employing office may examine the returning eligible 
     employee's own work history, his or her history of merit 
     increases, and the work and pay history of employees in the 
     same or similar position. For example, if the eligible 
     employee missed a merit pay increase while performing 
     service, but qualified for previous merit pay increases, then 
     the rate of pay should include the merit pay increase that 
     was missed. If the merit pay increase that the eligible 
     employee missed during service is based on a skills test or 
     examination, then the employing office should give the 
     employee a reasonable amount of time to adjust to the 
     reemployment position and then give him or her the skills 
     test or examination. No fixed amount of time for permitting 
     adjustment to reemployment will be deemed reasonable in all 
     cases. However, in determining a reasonable amount of time to 
     permit an eligible employee to adjust to reemployment before 
     scheduling a makeup test or examination, an employing office 
     may take into account a variety of factors, including but not 
     limited to the length of time the returning employee was 
     absent from work, the level of difficulty of the test itself, 
     the typical time necessary to prepare or study for the test, 
     the duties and responsibilities of the reemployment position 
     and the promotional position, and the nature and 
     responsibilities of the service member while serving in the 
     uniformed service. The escalator principle also applies in 
     the event a pay reduction occurred in the reemployment 
     position during the period of service. Any pay adjustment 
     must be made effective as of the date it would have occurred 
     had the eligible employee's employment not been interrupted 
     by uniformed service.
       (b) If the eligible employee is reemployed in the pre-
     service position or another position, the employing office 
     must compensate him or her at the rate of pay associated with 
     the position in which he or she is reemployed. As with the 
     escalator position, the rate of pay must be determined by 
     taking into account any pay increases, differentials, step 
     increases, merit increases, or periodic increases that the 
     eligible employee would have attained with reasonable 
     certainty had he or she remained continuously employed during 
     the period of service.

                      Protection Against Discharge

       Yes. If the eligible employee's most recent period of 
     service in the uniformed services was more than 30 days, he 
     or she must not be discharged except for cause--
       (a) For 180 days after the eligible employee's date of 
     reemployment if his or her most recent period of uniformed 
     service was more than 30 days but less than 181 days; or,
       (b) For one year after the date of reemployment if the 
     eligible employee's most recent period of uniformed service 
     was more than 180 days.
       The eligible employee may be discharged for cause based 
     either on conduct or, in some circumstances, because of the 
     application of other legitimate nondiscriminatory reasons.
       (a) In a discharge action based on conduct, the employing 
     office bears the burden of proving that it is reasonable to 
     discharge the eligible employee for the conduct in question, 
     and that he or she had notice, which was express or can be 
     fairly implied, that the conduct would constitute cause for 
     discharge.
       (b) If, based on the application of other legitimate 
     nondiscriminatory reasons, the eligible employee's job 
     position is eliminated, or the eligible employee is placed on 
     layoff status, either of these situations would constitute 
     cause for purposes of USERRA. The employing office bears the 
     burden of proving that the eligible employee's job would have 
     been eliminated or that he or she would have been laid off.

                         Pension Plan Benefits

       On reemployment, the eligible employee is treated as not 
     having a break in service with the employing office for 
     purposes of participation, vesting and accrual of benefits in 
     a pension plan, by reason of the period of absence from 
     employment due to or necessitated by service in the uniformed 
     services.
       (a) Depending on the length of the eligible employee's 
     period of service, he or she is entitled to take from one to 
     ninety days following service before reporting back to work 
     or applying for reemployment (See Sec. 1002.115). This period 
     of time must be treated as continuous service with the 
     employing office for purposes of determining participation, 
     vesting and accrual of pension benefits under the plan.
       (b) If the eligible employee is hospitalized for, or 
     convalescing from, an illness or injury incurred in, or 
     aggravated during, service, he or she is entitled to report 
     to or submit an application for reemployment at the end of 
     the time period necessary for him or her to recover from the 
     illness or injury. This period, which may not exceed two 
     years from the date the eligible employee completed service, 
     except in circumstances beyond his or her control, must be 
     treated as continuous service with the employing office for 
     purposes of determining the participation, vesting and 
     accrual of pension benefits under the plan.
       (a) The Employee Retirement Income Security Act of 1974 
     (ERISA) defines an employee pension benefit plan as a plan 
     that provides retirement income to employees, or defers 
     employee income to a period extending to or beyond the 
     termination of employment. USERRA also covers certain pension 
     plans not covered by ERISA, such as those sponsored by the 
     Federal Government.
       (b) USERRA does not cover pension benefits under the 
     Federal Thrift Savings Plan; those benefits are covered under 
     5 U.S.C. 8432b.
       With the exception of multi-employer plans, which have 
     separate rules discussed below, the employing office is 
     required to ensure the funding of any obligation of the plan 
     to provide benefits that are attributable to the eligible 
     employee's period of service. In the case of a defined 
     contribution plan, once the eligible employee is reemployed, 
     the employing office must ensure that the amount of the make-
     up contribution for the employee, if any; the employee's 
     make-up contributions, if any; and the employee's elective 
     deferrals, if any; in the same manner and to the same extent 
     that the amounts are allocated for other employees during the 
     period of service. In the case of a defined benefit plan, the 
     eligible employee's accrued benefit will be increased for the 
     period of service once he or she is reemployed and, if 
     applicable, has repaid any amounts previously paid to him or 
     her from the plan and made any employee contributions that 
     may be required to be made under the plan.
       (a) Employer contributions are not required until the 
     eligible employee is reemployed. For employer contributions 
     to a plan in which the eligible employee is not required or 
     permitted to contribute, the contribution attributable to the 
     employee's period of service must be made no later than 
     ninety days after the date of reemployment, or when plan 
     contributions are normally due for the year in which the 
     service in the uniformed services was performed, whichever is 
     later. If it is impossible or unreasonable for the 
     contribution to be made within this time period, the 
     contribution must be made as soon as practicable.
       (b) If the eligible employee is enrolled in a contributory 
     plan, he or she is allowed (but not required) to make up his 
     or her missed contributions or elective deferrals. These 
     makeup contributions, or elective deferrals, must be made 
     during a time period starting with the date of reemployment 
     and continuing for up to three times the length of the 
     eligible employee's immediate past period of uniformed 
     service, with the repayment period not to exceed five years. 
     Makeup contributions or elective deferrals may only be made 
     during this period and while the employee is employed with 
     the post-service employing office.
       (c) If the eligible employee's plan is contributory and he 
     or she does not make up his or her contributions or elective 
     deferrals, he or she will not receive the employer match or 
     the accrued benefit attributable to his or her contribution. 
     This is true because employer contributions are contingent on 
     or attributable to the employee's contributions or elective 
     deferrals only to the extent that the employee makes up his 
     or her payments to the plan. Any employer contributions that 
     are contingent on or attributable to the eligible employee's 
     make-up contributions or elective deferrals must be made 
     according to the plan's requirements for employer matching 
     contributions.
       (d) The eligible employee is not required to make up the 
     full amount of employee contributions or elective deferrals 
     that he or she missed making during the period of service.

[[Page H1817]]

     If the eligible employee does not make up all of the missed 
     contributions or elective deferrals, his or her pension may 
     be less than if he or she had done so.
       (e) Any vested accrued benefit in the pension plan that the 
     eligible employee was entitled to prior to the period of 
     uniformed service remains intact whether or not he or she 
     chooses to be reemployed under the Act after leaving the 
     uniformed service.
       (f) An adjustment will be made to the amount of employee 
     contributions or elective deferrals that the eligible 
     employee will be able to make to the pension plan for any 
     employee contributions or elective deferrals he or she 
     actually made to the plan during the period of service.
       No. The eligible employee is not required or permitted to 
     make up a missed contribution in an amount that exceeds the 
     amount he or she would have been permitted or required to 
     contribute had he or she remained continuously employed 
     during the period of service.
       Yes, provided the plan is a defined benefit plan. If the 
     eligible employee received a distribution of all or part of 
     the accrued benefit from a defined benefit plan in connection 
     with his or her service in the uniformed services before he 
     or she became reemployed, he or she must be allowed to repay 
     the withdrawn amounts when he or she is reemployed. The 
     amount the eligible employee must repay includes any interest 
     that would have accrued had the monies not been withdrawn. 
     The eligible employee must be allowed to repay these amounts 
     during a time period starting with the date of reemployment 
     and continuing for up to three times the length of the 
     employee's immediate past period of uniformed service, with 
     the repayment period not to exceed five years (or such longer 
     time as may be agreed to between the employing office and the 
     employee), provided the employee is employed with the post-
     service employing office during this period.
       The amount of the eligible employee's pension benefit 
     depends on the type of pension plan.
       (a) In a non-contributory defined benefit plan, where the 
     amount of the pension benefit is determined according to a 
     specific formula, the eligible employee's benefit will be the 
     same as though he or she had remained continuously employed 
     during the period of service.
       (b) In a contributory defined benefit plan, the eligible 
     employee will need to make up contributions in order to have 
     the same benefit as if he or she had remained continuously 
     employed during the period of service.
       (c) In a defined contribution plan, the benefit may not be 
     the same as if the employee had remained continuously 
     employed, even though the employee and the employer make up 
     any contributions or elective deferrals attributable to the 
     period of service, because the employee is not entitled to 
     forfeitures and earnings or required to experience losses 
     that accrued during the period or periods of service.
       A multi-employer pension benefit plan is one to which more 
     than one employer is required to contribute, and which is 
     maintained pursuant to one or more collective bargaining 
     agreements between one or more employee organizations and 
     more than one employer. The Act uses ERISA's definition of a 
     multi-employer plan. In addition to the provisions of USERRA 
     that apply to all pension benefit plans, there are provisions 
     that apply specifically to multi-employer plans, as follows:
       (a) The last employer that employed the eligible employee 
     before the period of service is responsible for making the 
     employer contribution to the multi-employer plan, if the plan 
     sponsor does not provide otherwise. If the last employer is 
     no longer functional, the plan must nevertheless provide 
     coverage to the eligible employee.
       (b) An employer that contributes to a multi-employer plan 
     and that reemploys the eligible employee pursuant to USERRA 
     must provide written notice of reemployment to the plan 
     administrator within 30 days after the date of reemployment. 
     The returning service member should notify the reemploying 
     employer that he or she has been reemployed pursuant to 
     USERRA. The 30-day period within which the reemploying 
     employer must provide written notice to the multi-employer 
     plan pursuant to this subsection does not begin until the 
     employer has knowledge that the eligible employee was re-
     employed pursuant to USERRA.
       (c) The eligible employee is entitled to the same employer 
     contribution whether he or she is reemployed by the pre-
     service employer or by a different employer contributing to 
     the same multi-employer plan, provided that the pre-service 
     employer and the post-service employer share a common means 
     or practice of hiring the employee, such as common 
     participation in a union hiring hall.
       In many pension benefit plans, the eligible employee's 
     compensation determines the amount of his or her contribution 
     or the retirement benefit to which he or she is entitled.
       (a) Where the eligible employee's rate of compensation must 
     be calculated to determine pension entitlement, the 
     calculation must be made using the rate of pay that the 
     employee would have received but for the period of uniformed 
     service.
       (b) (1) Where the rate of pay the eligible employee would 
     have received is not reasonably certain, the average rate of 
     compensation during the 12-month period prior to the period 
     of uniformed service must be used.
       (2) Where the rate of pay the eligible employee would have 
     received is not reasonably certain and he or she was employed 
     for less than 12 months prior to the period of uniformed 
     service, the average rate of compensation must be derived 
     from this shorter period of employment that preceded service.

       Subpart F: Compliance Assistance, Enforcement and Remedies

                         Compliance Assistance

                       Investigation and Referral

     Enforcement of Rights and Benefits Against an Employing Office

                         Compliance Assistance

       The Office of Congressional Workplace Rights provides 
     assistance to any person or entity who is covered by the CAA 
     with respect to employment and reemployment rights and 
     benefits under USERRA as applied by the CAA. This assistance 
     includes responding to inquiries, and providing a program of 
     education and information on matters relating to USERRA.

                       Investigation and Referral

       (a) The Procedural Rules of the Office of Congressional 
     Workplace Rights set forth the procedures for considering and 
     resolving alleged violations of the laws made applicable by 
     the CAA, including USERRA. The Rules include procedures for 
     filing claims and participating in administrative dispute 
     resolution proceedings at the Office of Congressional 
     Workplace Rights, including procedures for the conduct of 
     hearings and for appeals to the Board of Directors. The 
     Procedural Rules also address other matters of general 
     applicability to the dispute resolution process and to the 
     operations of the Office.
       (b) The Procedural Rules of the Office of Congressional 
     Workplace Rights can be found on the Office's website at 
     www.ocwr.gov.

 Enforcement of Rights and Benefits Against an Employing Office

       Yes. Eligible employees must first file a claim form with 
     the Office of Congressional Workplace Rights before making an 
     election between requesting an administrative hearing or 
     filing a civil action in Federal district court.
       An action under section 206 of the CAA may be brought by an 
     eligible employee, as defined by section 1002.5(f) of Subpart 
     A of these regulations. An action under section 208(a) of the 
     CAA may be brought by a covered employee, as defined by 
     section 1002.5(e) of Subpart A of these regulations. An 
     employing office, prospective employing office or other 
     similar entity may not bring an action under the Act.
       In an action under USERRA, only the covered employing 
     office or a potential covered employing office, as the case 
     may be, is a necessary party respondent. Under the Office

[[Page H1818]]

     of Congressional Workplace Rights Procedural Rules, a hearing 
     officer has authority to require the filing of briefs, 
     memoranda of law, and the presentation of oral argument. A 
     hearing officer also may order the production of evidence and 
     the appearance of witnesses.
       If an eligible employee is a prevailing party with respect 
     to any claim under USERRA, the hearing officer, Board, or 
     court may award reasonable attorney fees, expert witness 
     fees, and other litigation expenses.
       USERRA does not have a statute of limitations. However, 
     section 402 of the CAA, 2 U.S.C. 1402, requires a covered 
     employee to file a claim with the Office of Congressional 
     Workplace Rights alleging a violation of the CAA no later 
     than 180 days after the date of the alleged violation. A 
     claim by an eligible employee alleging a USERRA violation as 
     applied by the CAA would follow this requirement.
       In any action or proceeding the following relief may be 
     awarded:
       (a) The court and/or hearing officer may require the 
     employing office to comply with the provisions of the Act;
       (b) The court and/or hearing officer may require the 
     employing office to compensate the eligible employee for any 
     loss of wages or benefits suffered by reason of the employing 
     office's failure to comply with the Act;
       (c) The court and/or hearing officer may require the 
     employing office to pay the eligible employee an amount equal 
     to the amount of lost wages and benefits as liquidated 
     damages, if the court and/or hearing officer determines that 
     the employing office's failure to comply with the Act was 
     willful. A violation shall be considered to be willful if the 
     employing office either knew or showed reckless disregard for 
     whether its conduct was prohibited by the Act.
       (d) Any wages, benefits, or liquidated damages awarded 
     under paragraphs (b) and (c) of this section are in addition 
     to, and must not diminish, any of the other rights and 
     benefits provided by USERRA (such as, for example, the right 
     to be employed or reemployed by the employing office).
       When approved by the Senate for the Senate, these 
     regulations will have the prefix ``S.''

               Subpart A: Introduction to the Regulations

       This part implements certain provisions of the Uniformed 
     Services Employment and Reemployment Rights Act of 1994 
     (``USERRA'' or ``the Act''), as applied by the Congressional 
     Accountability Act (``CAA''). 2 U.S.C. 1316. USERRA is a law 
     that establishes certain rights and benefits for employees, 
     and duties for employers. USERRA affects employment, 
     reemployment, and retention in employment, when employees 
     serve or have served in the uniformed services. There are 
     five subparts to these regulations. Subpart A gives an 
     introduction to the USERRA regulations. Subpart B describes 
     USERRA's anti-discrimination and anti-retaliation provisions. 
     Subpart C explains the steps that must be taken by a 
     uniformed service member who wants to return to his or her 
     previous civilian employment. Subpart D describes the rights, 
     benefits, and obligations of persons absent from employment 
     due to service in the uniformed services, including rights 
     and obligations related to health plan coverage. Subpart E 
     describes the rights, benefits, and obligations of the 
     returning veteran or service member. Subpart F explains the 
     role of the Office of Congressional Workplace Rights in 
     administering USERRA as applied by the CAA.
       USERRA is the latest in a series of laws protecting 
     veterans' employment and reemployment rights going back to 
     the Selective Training and Service Act of 1940. USERRA's 
     immediate predecessor was commonly referred to as the 
     Veterans' Reemployment Rights Act (``VRRA''), which was 
     enacted as section 404 of the Vietnam Era Veterans' 
     Readjustment Assistance Act of 1974. In enacting USERRA, 
     Congress emphasized USERRA's continuity with the VRRA and its 
     intention to clarify and strengthen that law. Congress also 
     emphasized that Federal laws protecting veterans' employment 
     and reemployment rights for the past fifty years had been 
     successful and that the large body of case law that had 
     developed under those statutes remained in full force and 
     effect, to the extent it is consistent with USERRA. USERRA 
     authorized the Department of Labor to publish regulations 
     implementing the Act for State, local government, and private 
     employers. USERRA also authorized the Office of Personnel 
     Management to issue regulations implementing the Act for 
     Federal executive agencies, with the exception of certain 
     Federal intelligence agencies. For those Federal intelligence 
     agencies, USERRA established a separate program for 
     employees. Section 206 of the CAA, 2 U.S.C. 1316, requires 
     the Board of Directors of the Office of Congressional 
     Workplace Rights to issue regulations to implement the 
     statutory provisions relating to employment and reemployment 
     rights of members of the uniformed services. The regulations 
     are required to be the same as substantive regulations 
     promulgated by the Secretary of Labor, except where a 
     modification of such regulations would be more effective for 
     the implementation of the rights and protections of the Act. 
     The Department of Labor issued its regulations, effective 
     January 18, 2006. The regulations set forth herein are the 
     substantive regulations that the Board of Directors of the 
     Office of Congressional Workplace Rights has promulgated for 
     the legislative branch, for the implementation of the USERRA 
     provisions of the CAA. All references to USERRA in these 
     regulations, means USERRA, as applied by the CAA.
       USERRA, as applied by the CAA, became effective for 
     employing offices of the legislative branch on January 23, 
     1996.
       (a) As applied by the CAA, the Executive Director of the 
     Office of Congressional Workplace Rights is responsible for 
     providing education and information to any covered employing 
     office or employee with respect to their rights, benefits, 
     and obligations under the USERRA provisions of the CAA.
       (b) The Office of Congressional Workplace Rights, under the 
     direction of the Executive Director, is responsible for the 
     processing of claims filed pursuant to these regulations. 
     More information about the Office of Congressional Workplace 
     Rights' role is contained in Subpart F.
       (a) Act or USERRA means the Uniformed Services Employment 
     and Reemployment Rights Act of 1994, as applied by the CAA.
       (b) Benefit, benefit of employment, or rights and benefits 
     means any advantage, profit, privilege, gain, status, 
     account, or interest (other than wages or salary for work 
     performed) that accrues to the employee because of an 
     employment contract, employment agreement, or employing 
     office policy, plan, or practice. The term includes rights 
     and benefits under a pension plan, health plan, insurance 
     coverage and awards, bonuses, severance pay, supplemental 
     unemployment benefits, vacations, and, where applicable, the 
     opportunity to select work hours or the location of 
     employment.
       (c) Board means Board of Directors of the Office of 
     Congressional Workplace Rights.
       (d) CAA means the Congressional Accountability Act of 1995, 
     as amended (Pub. L. 104-1, 109 Stat. 3, 2 U.S.C. 1301-1438).
       (e) Covered employee means any employee, including an 
     applicant for employment and a former employee, of (1) the 
     House of Representatives; (2) the Senate; (3) the Office of 
     Congressional Accessibility Services; (4) the Capitol Police; 
     (5) the Congressional Budget Office; (6) the Office of the 
     Architect of the Capitol; (7) the Office of the Attending 
     Physician; (8) the Government Accountability Office; (9) the 
     Library of Congress; and (10) the Office of Congressional 
     Workplace Rights.
       (f) Eligible employee means a covered employee performing 
     service in the uniformed services, as defined in 1002.5(t) of 
     this subpart, whose service has not been terminated upon 
     occurrence of any of the events enumerated in section 
     1002.135 of these regulations. For the purpose of defining 
     who is covered under the discrimination section of these 
     regulations, ``performing service'' means an eligible 
     employee 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 the uniformed services.
       (g) Employee of the Office of the Architect of the Capitol 
     includes any employee of the Office of the Architect of the 
     Capitol, the Botanic Gardens, or the Senate Restaurants.
       (h) Employee of the Capitol Police includes any member or 
     officer of the Capitol Police.
       (i) Employee of the House of Representatives includes an 
     individual occupying a position for which the pay is 
     disbursed by the Chief Administrative Officer of the House of 
     Representatives, or another official designated by the House 
     of Representatives, or any employment position in an entity 
     that is paid with funds derived from the clerk-hire allowance 
     of the House of Representatives but not any such individual 
     employed by any entity listed in subparagraphs (3) through 
     (10) of paragraph (e) above.
       (j) Employee of the Senate includes an individual occupying 
     a position for which the pay is disbursed by the Secretary of 
     the Senate, but not any such individual employed by any 
     entity listed in subparagraphs (3) through (10) of paragraph 
     (e) above.
       (k) Employing office means (1) the personal office of a 
     Senator; (2) a committee of the

[[Page H1819]]

     Senate or a joint committee of the House of Representatives 
     and the Senate; (3) any other office headed by a person with 
     the final authority to appoint, or be directed by a Member of 
     Congress to appoint, hire, discharge, and set the terms, 
     conditions, or privileges of the employment of an employee of 
     the Senate.
       (l) Health plan means an insurance policy, insurance 
     contract, medical or hospital service agreement, membership 
     or subscription contract, or other arrangement under which 
     health services for individuals are provided or the expenses 
     of such services are paid.
       (m) Notice, when the eligible employee is required to give 
     advance notice of service, means any written or oral 
     notification of an obligation or intention to perform service 
     in the uniformed services provided to an employing office by 
     the employee who will perform such service, or by the 
     uniformed service in which the service is to be performed.
       (n) Office means the Office of Congressional Workplace 
     Rights.
       (o) Qualified, with respect to an employment position, 
     means having the ability to perform the essential tasks of 
     the position.
       (p) Reasonable efforts, in the case of actions required of 
     an employing office, means actions, including training 
     provided by an employing office that do not place an undue 
     hardship on the employing office.
       (q) Seniority means longevity in employment together with 
     any benefits of employment that accrue with, or are 
     determined by, longevity in employment.
       (r) Service in the uniformed services means the performance 
     of duty on a voluntary or involuntary basis in a uniformed 
     service under competent authority. Service in the uniformed 
     services includes active duty, active and inactive duty for 
     training, National Guard duty under Federal statute, and a 
     period for which a person is absent from a position of 
     employment for an examination to determine the fitness of the 
     person to perform such duty. The term also includes a period 
     for which a person is absent from employment to perform 
     funeral honors duty as authorized by law (10 U.S.C. 12503 or 
     32 U.S.C. 115). The Public Health Security and Bioterrorism 
     Preparedness and Response Act of 2002, Pub. L. 107-188, 
     provides that service as an intermittent disaster-response 
     appointee upon activation of the National Disaster Medical 
     System (NDMS) or as a participant in an authorized training 
     program is deemed ``service in the uniformed services.'' 42 
     U.S.C. 300hh-11(d)(3).
       (s) Undue hardship, in the case of actions taken by an 
     employing office, means an action requiring significant 
     difficulty or expense, when considered in light of--
       (1) The nature and cost of the action needed under USERRA 
     and these regulations;
       (2) the overall financial resources of the facility or 
     facilities involved in the provision of the action; the 
     number of persons employed at such facility; the effect on 
     expenses and resources, or the impact otherwise of such 
     action upon the operation of the facility;
       (3) The overall financial resources of the employing 
     office; the overall size of the business of an employing 
     office with respect to the number of its employees; the 
     number, type, and location of its facilities; and,
       (4) The type of operation or operations of the employing 
     office, including the composition, structure, and functions 
     of the work force of such employing office; the geographic 
     separateness, administrative, or fiscal relationship of the 
     State, District, or satellite office in question to the 
     employing office.
       (t) Uniformed services means the Armed Forces; the Army 
     National Guard and the Air National Guard when engaged in 
     active duty for training, inactive duty training, or full-
     time National Guard duty; the commissioned corps of the 
     Public Health Service; and any other category of persons 
     designated by the President in time of war or national 
     emergency. For purposes of USERRA coverage only, service as 
     an intermittent disaster response appointee of the National 
     Disaster Medical System (NDMS) when federally activated or 
     attending authorized training in support of their Federal 
     mission is deemed ``service in the uniformed services,'' 
     although such appointee is not a member of the ``uniformed 
     services'' as defined by USERRA.
       The definition of ``service in the uniformed services'' 
     covers all categories of military training and service, 
     including duty performed on a voluntary or involuntary basis, 
     in time of peace or war. Although most often understood as 
     applying to National Guard and reserve military personnel, 
     USERRA also applies to persons serving in the active 
     components of the Armed Forces. Certain types of service 
     specified in 42 U.S.C. 300hh-11 by members of the National 
     Disaster Medical System are covered by USERRA.
       (a) USERRA establishes a floor, not a ceiling, for the 
     employment and reemployment rights and benefits of those it 
     protects. In other words, an employing office may provide 
     greater rights and benefits than USERRA requires, but no 
     employing office can refuse to provide any right or benefit 
     guaranteed by USERRA, as applied by the CAA.
       (b) USERRA supersedes any contract, agreement, policy, 
     plan, practice, or other matter that reduces, limits, or 
     eliminates in any manner any right or benefit provided by 
     USERRA, including the establishment of additional 
     prerequisites to the exercise of any USERRA right or the 
     receipt of any USERRA benefit. For example, an office policy 
     that determines seniority based only on actual days of work 
     in the place of employment would be superseded by USERRA, 
     which requires that seniority credit be given for periods of 
     absence from work due to service in the uniformed services.
       (c) USERRA does not supersede, nullify or diminish any 
     Federal law, contract, agreement, policy, plan, practice, or 
     other matter that establishes an employment right or benefit 
     that is more beneficial than, or is in addition to, a right 
     or benefit provided under the Act. For example, although 
     USERRA does not require an employing office to pay an 
     eligible employee for time away from work performing service, 
     an employing office policy, plan, or practice that provides 
     such a benefit is permissible under USERRA.
       (d) If an employing office provides a benefit that exceeds 
     USERRA's requirements in one area, it cannot reduce or limit 
     other rights or benefits provided by USERRA. For example, 
     even though USERRA does not require it, an employing office 
     may provide a fixed number of days of paid military leave per 
     year to employees who are members of the National Guard or 
     Reserve. The fact that it provides such a benefit, however, 
     does not permit an employing office to refuse to provide an 
     unpaid leave of absence to an employee to perform service in 
     the uniformed services in excess of the number of days of 
     paid military leave.

          Subpart B: Anti-Discrimination and Anti-Retaliation

        Protection From Employer Discrimination and Retaliation

        Protection From Employer Discrimination and Retaliation

       An employing office must not deny initial employment, 
     reemployment, retention in employment, promotion, or any 
     benefit of employment to an individual on the basis of his or 
     her membership, application for membership, performance of 
     service, application for service, or obligation for service 
     in the uniformed services.
       An employing office must not retaliate against an eligible 
     employee by taking any adverse employment action against him 
     or her because the eligible employee has taken an action to 
     enforce a protection afforded any person under USERRA; 
     testified or otherwise made a statement in or in connection 
     with a proceeding under USERRA; assisted or participated in a 
     USERRA investigation; or exercised a right provided for by 
     USERRA.
       Under USERRA, as applied by the CAA, the prohibitions 
     against discrimination and retaliation apply to eligible 
     employees in all positions within covered employing offices, 
     including those that are for a brief, nonrecurrent period, 
     and for which there is no reasonable expectation that the 
     employment position will continue indefinitely or for a 
     significant period. However, USERRA's reemployment rights and 
     benefits do not apply to such brief, non-recurrent positions 
     of employment.
       USERRA's provisions, as applied by section 206 of the CAA, 
     prohibit discrimination and retaliation only against eligible 
     employees. Section 208(a) of the CAA, 2 U.S.C. 1317(a), 
     however, prohibits retaliation against all covered employees 
     because the employee has opposed any practice made unlawful 
     under the CAA, including a violation of USERRA's provisions, 
     as applied by the CAA; or testified; assisted; or 
     participated in any manner in a hearing or proceeding under 
     the CAA.

                Subpart C--Eligibility for Reemployment

                  General Eligibility for Reemployment

                  Coverage of Employers and Positions

[[Page H1820]]



             COVERAGE OF SERVICE IN THE UNIFORMED SERVICES

ABSENCE FROM A POSITION OF EMPLOYMENT NECESSITATED BY REASON OF SERVICE 
                       IN THE UNIFORMED SERVICES

                           Period of Service

                       Application for Employment

                          Character of Service

                      Employer Statutory Defenses

                  General Eligibility for Reemployment

       (a) In general, if an eligible employee has been absent 
     from a position of employment in an employing office by 
     reason of service in the uniformed services, he or she will 
     be eligible for reemployment in that same employing office, 
     if that employing office continues to exist at such time, by 
     meeting the following criteria:
       (1) The employing office had advance notice of the eligible 
     employee's service;
       (2) The eligible employee has five years or less of 
     cumulative service in the uniformed services in his or her 
     employment relationship with a particular employing office;
       (3) The eligible employee timely returns to work or applies 
     for reemployment; and,
       (4) The eligible employee has not been separated from 
     service with a disqualifying discharge or under other than 
     honorable conditions.
       (b) These general eligibility requirements have important 
     qualifications and exceptions, which are described in detail 
     in sections 1002.73 through 1002.138. If the employee meets 
     these eligibility criteria, then he or she is eligible for 
     reemployment unless the employing office establishes one of 
     the defenses described in section 1002.139. The employment 
     position to which the eligible employee is entitled is 
     described in sections 1002.191 through 1002.199.
       No. The eligible employee is not required to prove that the 
     employing office discriminated against him or her because of 
     the employee's uniformed service in order to be eligible for 
     reemployment.

                  Coverage of Employers and Positions

       USERRA applies to all covered employing offices of the 
     legislative branch as defined in 2 U.S.C. 1301(9) and 2 
     U.S.C. 1316(a)(2)(C).
       Yes. The definition of employer in the USERRA provision as 
     applied by the CAA includes an employing office that has 
     denied initial employment to an individual in violation of 
     USERRA's anti-discrimination provisions. An employing office 
     need not actually employ an individual to be liable under the 
     Act, if it has denied initial employment on the basis of the 
     individual's membership, application for membership, 
     performance of service, application for service, or 
     obligation for service in the uniformed services. Similarly, 
     the employing office would be liable if it denied initial 
     employment on the basis of the individual's action taken to 
     enforce a protection afforded to any person under USERRA, his 
     or her testimony or statement in connection with any USERRA 
     proceeding, assistance or other participation in a USERRA 
     investigation, or the exercise of any other right provided by 
     the Act. For example, if the individual has been denied 
     initial employment because of his or her obligations as a 
     member of the National Guard or Reserves, the employing 
     office denying employment is liable under USERRA. Similarly, 
     if an employing office withdraws an

[[Page H1821]]

     offer of employment because the individual is called upon to 
     fulfill an obligation in the uniformed services, the 
     employing office withdrawing the employment offer is also 
     liable under USERRA.
       USERRA rights are not diminished because an eligible 
     employee holds a temporary, part-time, probationary, or 
     seasonal employment position. However, an employing office is 
     not required to reemploy an eligible employee if the 
     employment he or she left to serve in the uniformed services 
     was for a brief, nonrecurrent period and there is no 
     reasonable expectation that the employment would have 
     continued indefinitely or for a significant period. The 
     employing office bears the burden of proving this affirmative 
     defense.
       (a) If an eligible employee is laid off with recall rights, 
     or on a leave of absence, he or she is protected under 
     USERRA. If the eligible employee is on layoff and begins 
     service in the uniformed services, or is laid off while 
     performing service, he or she may be entitled to reemployment 
     on return if the employing office would have recalled the 
     employee to employment during the period of service. Similar 
     principles apply if the eligible employee is on a leave of 
     absence from work when he or she begins a period of service 
     in the uniformed services.
       (b) If the eligible employee is sent a recall notice during 
     a period of service in the uniformed services and cannot 
     resume the position of employment because of the service, he 
     or she still remains an eligible employee for purposes of the 
     Act. Therefore, if the employee is otherwise eligible, he or 
     she is entitled to reemployment following the conclusion of 
     the period of service, even if he or she did not respond to 
     the recall notice.
       (c) If the eligible employee is laid off before or during 
     service in the uniformed services, and the employing office 
     would not have recalled him or her during that period of 
     service, the employee is not entitled to reemployment 
     following the period of service simply because he or she is 
     an eligible employee. Reemployment rights under USERRA cannot 
     put the eligible employee in a better position than if he or 
     she had remained in the civilian employment position.
       Yes. USERRA applies to all eligible employees. There is no 
     exclusion for executive, managerial, or professional 
     employees.
       No. USERRA, as applied by the CAA, does not provide 
     protections for an independent contractor.

             COVERAGE OF SERVICE IN THE UNIFORMED SERVICES

       Yes. USERRA's definition of ``service in the uniformed 
     services'' includes a period for which an eligible employee 
     is absent from a position of employment for the purpose of an 
     examination to determine his or her fitness to perform duty 
     in the uniformed services. Military fitness examinations can 
     address more than physical or medical fitness, and include 
     evaluations for mental, educational, and other types of 
     fitness. Any examination to determine an eligible employee's 
     fitness for service is covered, whether it is an initial or 
     recurring examination. For example, a periodic medical 
     examination required of a Reserve component member to 
     determine fitness for continued service is covered.
       (a) USERRA's definition of ``service in the uniformed 
     services'' includes a period for which an eligible employee 
     is absent from employment for the purpose of performing 
     authorized funeral honors duty under 10 U.S.C. 12503 (members 
     of Reserve ordered to perform funeral honors duty) or 32 
     U.S.C. 115 (Member of Air or Army National Guard ordered to 
     perform funeral honors duty).
       (b) Funeral honors duty performed by persons who are not 
     members of the uniformed services, such as members of 
     veterans' service organizations, is not ``service in the 
     uniformed services.''
       Under a provision of the Public Health Security and 
     Bioterrorism Preparedness and Response Act of 2002, 42 U.S.C. 
     300hh 11(d)(3), ``service in the uniformed services'' 
     includes service performed as an intermittent disaster-
     response appointee upon activation of the National Disaster 
     Medical System or participation in an authorized training 
     program, even if the eligible employee is not a member of the 
     uniformed services.
       No. Only Federal National Guard Service is considered 
     ``service in the uniformed services.'' The National Guard has 
     a dual status. It is a Reserve component of the Army, or, in 
     the case of the Air National Guard, of the Air Force. 
     Simultaneously, it is a State military force subject to call-
     up by the State Governor for duty not subject to Federal 
     control, such as emergency duty in cases of floods or riots. 
     National Guard members may perform service under either 
     Federal or State authority, but only Federal National Guard 
     service is covered by USERRA.
       (a) National Guard service under Federal authority is 
     protected by USERRA. Service under Federal authority includes 
     active duty performed under Title 10 of the United States 
     Code. Service under Federal authority also includes duty 
     under Title 32 of the United States Code, such as active duty 
     for training, inactive duty training, or full-time National 
     Guard duty.
       (b) National Guard service under authority of State law is 
     not protected by USERRA. However, many States have laws 
     protecting the civilian job rights of National Guard members 
     who serve under State orders. Enforcement of those State laws 
     is not covered by USERRA or these regulations.
       Yes. Service in the commissioned corps of the Public Health 
     Service (PHS) is ``service in the uniformed services'' under 
     USERRA.
       Yes. In time of war or national emergency, the President 
     has authority to designate any category of persons as a 
     ``uniformed service'' for purposes of USERRA. If the 
     President exercises this authority, service as a member of 
     that category of persons would be ``service in the uniformed 
     services'' under USERRA.
       Yes. Attending a military service academy is considered 
     uniformed service for purposes of USERRA. There are four 
     service academies: The United States Military Academy (West 
     Point, New York), the United States Naval Academy (Annapolis, 
     Maryland), the United States Air Force Academy (Colorado 
     Springs, Colorado), and the United States Coast Guard Academy 
     (New London, Connecticut).
       Yes, under certain conditions.
       (a) Membership in the Reserve Officers Training Corps 
     (ROTC) or the Junior ROTC is not ``service in the uniformed 
     services.'' However, some Reserve and National Guard enlisted 
     members use a college ROTC program as a means of qualifying 
     for commissioned officer status. National Guard and Reserve 
     members in an ROTC program may at times, while participating 
     in that program, be receiving active duty and inactive duty 
     training service credit with their unit. In these cases, 
     participating in ROTC training sessions is considered 
     ``service in the uniformed services,'' and qualifies a person 
     for protection under USERRA's reemployment and anti-
     discrimination provisions.
       (b) Typically, an individual in a College ROTC program 
     enters into an agreement with a particular military service 
     that obligates such individual to either complete the ROTC 
     program and accept a commission or, in case he or she does 
     not successfully complete the ROTC program, to serve as an 
     enlisted member. Although an individual does not qualify for 
     reemployment protection, except as specified in (a) above, he 
     or she is protected under USERRA's anti-discrimination 
     provisions because, as a result of the agreement, he or she 
     has applied to become a member of the uniformed services and 
     has incurred an obligation to perform future service.
       No. Although the Commissioned Corps of the National Oceanic 
     and Atmospheric Administration (NOAA) is a ``uniformed 
     service'' for some purposes, it is not included in USERRA's 
     definition of this term. Service in the Civil Air Patrol and 
     the Coast Guard Auxiliary similarly is not considered 
     ``service in the uniformed services'' for purposes of USERRA. 
     Consequently, service performed in the Commissioned Corps of 
     the National Oceanic and Atmospheric Administration (NOAA), 
     the Civil Air Patrol, and the Coast Guard Auxiliary is not 
     protected by USERRA.

ABSENCE FROM A POSITION OF EMPLOYMENT NECESSITATED BY REASON OF SERVICE 
                       IN THE UNIFORMED SERVICES

       No. If absence from a position of employment is 
     necessitated by service in the uniformed services, and the 
     employee otherwise meets the Act's eligibility requirements, 
     he or she has reemployment rights under USERRA, even if the 
     eligible employee uses the absence for other purposes as 
     well. An eligible employee is not required to leave the

[[Page H1822]]

     employment position for the sole purpose of performing 
     service in the uniformed services, although such uniformed 
     service must be the main reason for departure from 
     employment. For example, if the eligible employee is required 
     to report to an out of state location for military training 
     and he or she spends off-duty time during that assignment 
     moonlighting as a security guard or visiting relatives who 
     live in that State, the eligible employee will not lose 
     reemployment rights simply because he or she used some of the 
     time away from the job to do something other than attend the 
     military training. Also, if an eligible employee receives 
     advance notification of a mobilization order, and leaves his 
     or her employment position in order to prepare for duty, but 
     the mobilization is cancelled, the employee will not lose any 
     reemployment rights.
       No. At a minimum, an eligible employee must have enough 
     time after leaving the employment position to travel safely 
     to the uniformed service site and arrive fit to perform the 
     service. Depending on the specific circumstances, including 
     the duration of service, the amount of notice received, and 
     the location of the service, additional time to rest, or to 
     arrange affairs and report to duty, may be necessitated by 
     reason of service in the uniformed services. The following 
     examples help to explain the issue of the period of time 
     between leaving civilian employment and beginning service in 
     the uniformed services:
       (a) If the eligible employee performs a full overnight 
     shift for the civilian employer and travels directly from the 
     work site to perform a full day of uniformed service, the 
     eligible employee would not be considered fit to perform the 
     uniformed service. An absence from that work shift is 
     necessitated so that the eligible employee can report for 
     uniformed service fit for duty.
       (b) If the eligible employee is ordered to perform an 
     extended period of service in the uniformed services, he or 
     she may require a reasonable period of time off from the 
     civilian job to put his or her personal affairs in order, 
     before beginning the service. Taking such time off is also 
     necessitated by the uniformed service.
       (c) If the eligible employee leaves a position of 
     employment in order to enlist or otherwise perform service in 
     the uniformed services and, through no fault of his or her 
     own, the beginning date of the service is delayed, this delay 
     does not terminate any reemployment rights.
        Yes. The eligible employee, or an appropriate officer of 
     the uniformed service in which his or her service is to be 
     performed, must notify the employing office that the employee 
     intends to leave the employment position to perform service 
     in the uniformed services, with certain exceptions described 
     below. In cases in which an eligible employee is employed by 
     more than one employing office, the employee, or an 
     appropriate officer of the uniformed service in which his or 
     her service is to be performed, must notify each employing 
     office that the employee intends to leave the employment 
     position to perform service in the uniformed services, with 
     certain exceptions described below.
       (b) The Department of Defense USERRA regulations at 32 CFR 
     104.3 provide that an ``appropriate officer'' can give notice 
     on the eligible employee's behalf. An ``appropriate officer'' 
     is a commissioned, warrant, or non-commissioned officer 
     authorized to give such notice by the military service 
     concerned.
       (c) The eligible employee's notice to the employing office 
     may be either oral or written. The notice may be informal and 
     does not need to follow any particular format.
       (d) Although USERRA does not specify how far in advance 
     notice must be given to the employing office, an eligible 
     employee should provide notice as far in advance as is 
     reasonable under the circumstances. In regulations 
     promulgated by the Department of Defense under USERRA, 32 CFR 
     104.6(a)(2)(i)(B), the Defense Department ``strongly 
     recommends that advance notice to civilian employers be 
     provided at least 30 days prior to departure for uniformed 
     service when it is feasible to do so.''
       The eligible employee is required to give advance notice of 
     pending service unless giving such notice is prevented by 
     military necessity, or is otherwise impossible or 
     unreasonable under all the circumstances.
       (a) Only a designated authority can make a determination of 
     ``military necessity,'' and such a determination is not 
     subject to judicial review. Guidelines for defining 
     ``military necessity'' appear in regulations issued by the 
     Department of Defense at 32 CFR 104.3. In general, these 
     regulations cover situations where a mission, operation, 
     exercise or requirement is classified, or could be 
     compromised or otherwise adversely affected by public 
     knowledge. In certain cases, the Secretary of Homeland 
     Security, in consultation with the Secretary of Defense, can 
     make a determination that giving of notice by intermittent 
     disaster-response appointees of the National Disaster Medical 
     System is precluded by ``military necessity.'' See 42 U.S.C. 
     300hh-11(d)(3)(B).
       (b) It may be impossible or unreasonable to give advance 
     notice under certain circumstances. Such circumstances may 
     include the unavailability of the eligible employee's 
     employing office or the employing office's representative, or 
     a requirement that the eligible employee report for uniformed 
     service in an extremely short period of time.
       No. The eligible employee is not required to ask for or get 
     the employing office's permission to leave to perform service 
     in the uniformed services. The eligible employee is only 
     required to give the employing office notice of pending 
     service.
       No. When the eligible employee leaves the employment 
     position to begin a period of service, he or she is not 
     required to tell the employing office that he or she intends 
     to seek reemployment after completing uniformed service. Even 
     if the eligible employee tells the employing office before 
     entering or completing uniformed service that he or she does 
     not intend to seek reemployment after completing the 
     uniformed service, the employee does not forfeit the right to 
     reemployment after completing service. The eligible employee 
     is not required to decide in advance of leaving the position 
     with the employing office, whether he or she will seek 
     reemployment after completing uniformed service.

                           Period of Service

       Yes. In general, the eligible employee may perform service 
     in the uniformed services for a cumulative period of up to 
     five (5) years and retain reemployment rights with the 
     employing office. The exceptions to this rule are described 
     below.
       No. The five-year period includes only the time the 
     eligible employee spends actually performing service in the 
     uniformed services. A period of absence from employment 
     before or after performing service in the uniformed services 
     does not count against the five-year limit. For example, 
     after the eligible employee completes a period of service in 
     the uniformed services, he or she is provided a certain 
     amount of time, depending upon the length of service, to 
     report back to work or submit an application for 
     reemployment. The period between completing the uniformed 
     service and reporting back to work or seeking reemployment 
     does not count against the five-year limit.
       No. An eligible employee is entitled to a leave of absence 
     for uniformed service for up to five years with each 
     employing office for whom he or she works or has worked. When 
     the eligible employee takes a position with a new employing 
     office, the five-year period begins again regardless of how 
     much service he or she performed while working in any 
     previous employment relationship. If an eligible employee is 
     employed by more than one employing office, a separate five-
     year period runs as to each employing office independently, 
     even if those employing offices share or co-determine the 
     employee's terms and conditions of employment. For example, 
     an eligible employee of the legislative branch may work part-
     time for two employing offices. In this case, a separate 
     five-year period would run as to the eligible employee's 
     employment with each respective employing office.
       It depends. Under the CAA, USERRA provides reemployment 
     rights to which an eligible employee may become entitled 
     beginning on or after January 23, 1996, but any uniformed 
     service performed before January 23, 1996, that was counted 
     against the service limitations of the previous law (the 
     Veterans Reemployment Rights Act), also counts against 
     USERRA's five-year limit.
       (A) USERRA creates the following exceptions to the five-
     year limit on service in the uniformed services:
       (1) Service that is required beyond five years to complete 
     an initial period of obligated service. Some military 
     specialties require an individual to serve more than five 
     years because of the amount of time or expense involved in 
     training. If the eligible employee works in one of those 
     specialties, he or she has reemployment rights when the

[[Page H1823]]

     initial period of obligated service is completed;
       (2) If the eligible employee was unable to obtain orders 
     releasing him or her from service in the uniformed services 
     before the expiration of the five-year period, and the 
     inability was not the employee's fault;
       (3)(i) Service performed to fulfill periodic National Guard 
     and Reserve training requirements as prescribed by 10 U.S.C. 
     10147 and 32 U.S.C. 502(a) and 503; and,
       (ii) Service performed to fulfill additional training 
     requirements determined and certified by a proper military 
     authority as necessary for the eligible employee's 
     professional development, or to complete skill training or 
     retraining;
       (4) Service performed in a uniformed service if he or she 
     was ordered to or retained on active duty under:
       (i) 10 U.S.C. 688 (involuntary active duty by a military 
     retiree);
       (ii) 10 U.S.C. 12301(a) (involuntary active duty in 
     wartime);
       (iii) 10 U.S.C. 12301(g) (retention on active duty while in 
     captive status);
       (iv) 10 U.S.C. 12302 (involuntary active duty during a 
     national emergency for up to 24 months);
       (v) 10 U.S.C. 12304 (involuntary active duty for an 
     operational mission for up to 270 days);
       (vi) 10 U.S.C. 12305 (involuntary retention on active duty 
     of a critical person during time of crisis or other specific 
     conditions);
       (vii) 14 U.S.C. 331 (involuntary active duty by retired 
     Coast Guard officer);
       (viii) 14 U.S.C. 332 (voluntary active duty by retired 
     Coast Guard officer);
       (ix) 14 U.S.C. 359 (involuntary active duty by retired 
     Coast Guard enlisted member);
       (x) 14 U.S.C. 360 (voluntary active duty by retired Coast 
     Guard enlisted member);
       (xi) 14 U.S.C. 367 (involuntary retention of Coast Guard 
     enlisted member on active duty); and
       (xii) 14 U.S.C. 712 (involuntary active duty by Coast Guard 
     Reserve member for natural or man-made disasters).
       (5) Service performed in a uniformed service if the 
     eligible employee was ordered to or retained on active duty 
     (other than for training) under any provision of law because 
     of a war or national emergency declared by the President or 
     the Congress, as determined by the Secretary concerned;
       (6) Service performed in a uniformed service if the 
     eligible employee was ordered to active duty (other than for 
     training) in support of an operational mission for which 
     personnel have been ordered to active duty under 10 U.S.C. 
     12304, as determined by a proper military authority;
       (7) Service performed in a uniformed service if the 
     eligible employee was ordered to active duty in support of a 
     critical mission or requirement of the uniformed services as 
     determined by the Secretary concerned; and,
       (8) Service performed as a member of the National Guard if 
     the eligible employee was called to respond to an invasion, 
     danger of invasion, rebellion, danger of rebellion, 
     insurrection, or the inability of the President with regular 
     forces to execute the laws of the United States.
       (b) Service performed in a uniformed service to mitigate 
     economic harm where the eligible employee's employing office 
     is in violation of its employment or reemployment obligations 
     to him or her.
       No. The eligible employee is not required to accommodate 
     his or her employing office's interests or concerns regarding 
     the timing, frequency, or duration of uniformed service. The 
     employing office cannot refuse to reemploy the eligible 
     employee because it believes that the timing, frequency or 
     duration of the service is unreasonable. However, the 
     employing office is permitted to bring its concerns over the 
     timing, frequency, or duration of the eligible employee's 
     service to the attention of the appropriate military 
     authority. Regulations issued by the Department of Defense at 
     32 CFR 104.4 direct military authorities to provide 
     assistance to an employer in addressing these types of 
     employment issues. The military authorities are required to 
     consider requests from employers of National Guard and 
     Reserve members to adjust scheduled absences from civilian 
     employment to perform service.

                       Application for Employment

       Yes. Upon completing service in the uniformed services, the 
     eligible employee must notify the pre-service employing 
     office of his or her intent to return to the employment 
     position by either reporting to work or submitting a timely 
     application for reemployment. Whether the eligible employee 
     is required to report to work or submit a timely application 
     for reemployment depends upon the length of service, as 
     follows:
       (a) Period of service less than 31 days or for a period of 
     any length for the purpose of a fitness examination. If the 
     period of service in the uniformed services was less than 31 
     days, or the eligible employee was absent from a position of 
     employment for a period of any length for the purpose of an 
     examination to determine his or her fitness to perform 
     service, the eligible employee must report back to the 
     employing office not later than the beginning of the first 
     full regularly-scheduled work period on the first full 
     calendar day following the completion of the period of 
     service, and the expiration of eight hours after a period 
     allowing for safe transportation from the place of that 
     service to the eligible employee's residence. For example, if 
     the eligible employee completes a period of service and 
     travel home, arriving at ten o'clock in the evening, he or 
     she cannot be required to report to the employing office 
     until the beginning of the next full regularly-scheduled work 
     period that begins at least eight hours after arriving home, 
     i.e., no earlier than six o'clock the next morning. If it is 
     impossible or unreasonable for the eligible employee to 
     report within such time period through no fault of his or her 
     own, he or she must report to the employing office as soon as 
     possible after the expiration of the eight-hour period.
       (b) Period of service more than 30 days but less than 181 
     days. If the eligible employee's period of service in the 
     uniformed services was for more than 30 days but less than 
     181 days, he or she must submit an application for 
     reemployment (written or oral) with the employing office not 
     later than 14 days after completing service. If it is 
     impossible or unreasonable for the eligible employee to apply 
     within 14 days through no fault of his or her own, he or she 
     must submit the application not later than the next full 
     calendar day after it becomes possible to do so.
       (c) Period of service more than 180 days. If the eligible 
     employee's period of service in the uniformed services was 
     for more than 180 days, he or she must submit an application 
     for reemployment (written or oral) not later than 90 days 
     after completing service.
       Yes. If the eligible employee is hospitalized for, or 
     convalescing from, an illness or injury incurred in, or 
     aggravated during, the performance of service, he or she must 
     report to or submit an application for reemployment to the 
     employing office at the end of the period necessary for 
     recovering from the illness or injury. This period may not 
     exceed two years from the date of the completion of service, 
     except that it must be extended by the minimum time necessary 
     to accommodate circumstances beyond the eligible employee's 
     control that make reporting within the period impossible or 
     unreasonable. This period for recuperation and recovery 
     extends the time period for reporting to or submitting an 
     application for reemployment to the employing office, and is 
     not applicable following reemployment.
       (a) If the eligible employee fails to timely report for or 
     apply for reemployment, he or she does not automatically 
     forfeit entitlement to USERRA's reemployment and other rights 
     and benefits. However, the eligible employee does become 
     subject to any conduct rules, established policy, and general 
     practices of the employing office pertaining to an absence 
     from scheduled work.
       (b) If reporting or submitting an employment application to 
     the employing office is impossible or unreasonable through no 
     fault of the eligible employee, he or she may report to the 
     employing office as soon as possible (in the case of a period 
     of service less than 31 days) or submit an application for 
     reemployment to the employing office by the next full 
     calendar day after it becomes possible to do so (in the case 
     of a period of service from 31 to 180 days), and the eligible 
     employee will be considered to have timely reported or 
     applied for reemployment.
       An application for reemployment need not follow any 
     particular format. The eligible employee may apply orally or 
     in writing. The application should indicate that the employee 
     is a former employee returning from service in the uniformed 
     services and that he or she seeks reemployment with the pre-
     service employing office. The eligible employee is permitted 
     but not required to identify a particular reemployment 
     position in which he or she is interested.
       The application must be submitted to the pre-service 
     employing office or to an agent or representative of the 
     employing office who has apparent responsibility for 
     receiving employment applications. Depending upon the 
     circumstances, such a person could be a personnel or human 
     resources officer, or a first-line supervisor.
       No. The eligible employee has reemployment rights with the 
     pre-service employing office provided that he or she makes a 
     timely reemployment application to that employing

[[Page H1824]]

     office. The eligible employee may seek or obtain employment 
     with an employer other than the pre-service employing office 
     during the period of time within which a reemployment 
     application must be made, without giving up reemployment 
     rights with the pre-service employing office. However, such 
     alternative employment during the application period should 
     not be of a type that would constitute a cause for the 
     employing office to discipline or terminate the employee 
     following reemployment. For instance, if the employing office 
     forbids outside employment, violation of such a policy may 
     constitute a cause for discipline or even termination.
       Yes, if the period of service exceeded 30 days and if 
     requested by the employing office to do so. If the eligible 
     employee submits an application for reemployment after a 
     period of service of more than 30 days, he or she must, upon 
     the request of the employing office, provide documentation to 
     establish that:
       (a) The reemployment application is timely;
       (b) The eligible employee has not exceeded the five-year 
     limit on the duration of service (subject to the exceptions 
     listed at section 1002.103); and,
       (c) The eligible employee's separation or dismissal from 
     service was not disqualifying.
       Yes. The employing office is not permitted to delay or deny 
     reemployment by demanding documentation that does not exist 
     or is not readily available. The eligible employee is not 
     liable for administrative delays in the issuance of military 
     documentation. If the eligible employee is re-employed after 
     an absence from employment for more than 90 days, the 
     employing office may require that he or she submit the 
     documentation establishing entitlement to reemployment before 
     treating the employee as not having had a break in service 
     for pension purposes. If the documentation is received after 
     reemployment and it shows that the eligible employee is not 
     entitled to reemployment, the employing office may terminate 
     employment and any rights or benefits that the employee may 
     have been granted.
       (a) Documents that satisfy the requirements of USERRA 
     include the following:
       (1) DD (Department of Defense) 214 Certificate of Release 
     or Discharge from Active Duty;
       (2) Copy of duty orders prepared by the facility where the 
     orders were fulfilled carrying an endorsement indicating 
     completion of the described service;
       (3) Letter from the commanding officer of a Personnel 
     Support Activity or someone of comparable authority;
       (4) Certificate of completion from military training 
     school;
       (5) Discharge certificate showing character of service; 
     and,
       (6) Copy of extracts from payroll documents showing periods 
     of service;
       (7) Letter from NDMS Team Leader or Administrative Officer 
     verifying dates and times of NDMS training or Federal 
     activation.
       (b) The types of documents that are necessary to establish 
     eligibility for reemployment will vary from case to case. Not 
     all of these documents are available or necessary in every 
     instance to establish reemployment eligibility.

                          Character of Service

       USERRA does not require any particular form of discharge or 
     separation from service. However, even if the employee is 
     otherwise eligible for reemployment, he or she will be 
     disqualified if the characterization of service falls within 
     one of four categories. USERRA requires that the employee not 
     have received one of these types of discharge.
       Reemployment rights are terminated if the employee is:
       (a) Separated from uniformed service with a dishonorable or 
     bad conduct discharge;
       (b) Separated from uniformed service under other than 
     honorable conditions, as characterized by regulations of the 
     uniformed service;
       (c) A commissioned officer dismissed as permitted under 10 
     U.S.C. 1161(a) by sentence of a general court-martial; in 
     commutation of a sentence of a general court-martial; or, in 
     time of war, by order of the President; or,
       (d) A commissioned officer dropped from the rolls under 10 
     U.S.C. 1161(b) due to absence without authority for at least 
     three months; separation by reason of a sentence to 
     confinement adjudged by a court-martial; or, a sentence to 
     confinement in a Federal or State penitentiary or 
     correctional institution.
       The branch of service in which the employee performs the 
     tour of duty determines the characterization of service.
       Yes. A military review board has the authority to 
     prospectively or retroactively upgrade a disqualifying 
     discharge or release. A retroactive upgrade would restore 
     reemployment rights providing the employee otherwise meets 
     the Act's eligibility criteria.
       No. A retroactive upgrade allows the employee to obtain 
     reinstatement with the former employing office, provided the 
     employee otherwise meets the Act's eligibility criteria. Back 
     pay and other benefits such as pension plan credits 
     attributable to the time period between discharge and the 
     retroactive upgrade are not required to be restored by the 
     employing office in this situation.

                      Employer Statutory Defenses

       (a) Even if the employee is otherwise eligible for 
     reemployment benefits, the employing office is not required 
     to reemploy him or her if the employing office establishes 
     that its circumstances have so changed as to make 
     reemployment impossible or unreasonable. For example, an 
     employing office may be excused from re-employing the 
     eligible employee where there has been an intervening 
     reduction in force that would have included that employee. 
     The employing office may not, however, refuse to reemploy the 
     eligible employee on the basis that another employee was 
     hired to fill the reemployment position during the employee's 
     absence, even if reemployment might require the termination 
     of that replacement employee;
       (b) Even if the employee is otherwise eligible for 
     reemployment benefits, the employing office is not required 
     to reemploy him or her if it establishes that assisting the 
     eligible employee in becoming qualified for reemployment 
     would impose an undue hardship, as defined in section 
     1002.5(s) and discussed in section 1002.198, on the employing 
     office; or,
       (c) Even if the employee is otherwise eligible for 
     reemployment benefits, the employing office is not required 
     to reemploy him or her if it establishes that the employment 
     position vacated by the eligible employee in order to perform 
     service in the uniformed services was for a brief, 
     nonrecurrent period and there was no reasonable expectation 
     that the employment would continue indefinitely or for a 
     significant period.
       (d) The employing office defenses included in this section 
     are affirmative ones, and the employing office carries the 
     burden to prove by a preponderance of the evidence that any 
     one or more of these defenses is applicable.

  Subpart D: Rights, Benefits, and Obligations of Persons Absent from 
          Employment Due to Service in the Uniformed Services

                     Furlough and Leave of Absence

                          Health Plan Coverage

[[Page H1825]]



                     Furlough and Leave of Absence

       During a period of service in the uniformed services, the 
     eligible employee is deemed to be on leave of absence from 
     the employing office. In this status, the eligible employee 
     is entitled to the non-seniority rights and benefits 
     generally provided by the employing office to other employees 
     with similar seniority, status, and pay that are on leave of 
     absence. Entitlement to these non-seniority rights and 
     benefits is not dependent on how the employing office 
     characterizes the eligible employee's status during a period 
     of service. For example, if the employing office 
     characterizes the employee as ``terminated'' during the 
     period of uniformed service, this characterization cannot be 
     used to avoid USERRA's requirement that the employee be 
     deemed on leave of absence, and therefore, entitled to the 
     non-seniority rights and benefits generally provided to 
     employees on leave of absence.
       (a) The non-seniority rights and benefits to which an 
     eligible employee is entitled during a period of service are 
     those that the employing office provides to similarly 
     situated employees by an agreement, policy, practice, or plan 
     in effect at the employee's workplace. These rights and 
     benefits include those in effect at the beginning of the 
     eligible employee's employment and those established after 
     employment began. They also include those rights and benefits 
     that become effective during the eligible employee's period 
     of service and that are provided to similarly situated 
     employees on leave of absence.
       (b) If the non-seniority benefits to which employees on 
     leave of absence are entitled vary according to the type of 
     leave, the eligible employee must be given the most favorable 
     treatment accorded to any comparable form of leave when he or 
     she performs service in the uniformed services. In order to 
     determine whether any two types of leave are comparable, the 
     duration of the leave may be the most significant factor to 
     compare. For instance, a two-day funeral leave will not be 
     ``comparable'' to an extended leave for service in the 
     uniformed service. In addition to comparing the duration of 
     the absences, other factors such as the purpose of the leave 
     and the ability of the employee to choose when to take the 
     leave should also be considered.
       (c) As a general matter, accrual of vacation leave is 
     considered to be a non-seniority benefit that must be 
     provided by an employing office to an eligible employee on a 
     military leave of absence only if the employing office 
     provides that benefit to similarly situated employees on 
     comparable leaves of absence.
       (d) Nothing in this section gives the eligible employee 
     rights or benefits to which the employee otherwise would not 
     be entitled if the employee had remained continuously 
     employed with the employing office.
       Yes. If the employing office provides additional benefits 
     such as full or partial pay when the eligible employee 
     performs service, the employing office is not excused from 
     providing other rights and benefits to which the employee is 
     entitled under the Act.
       If employment is interrupted by a period of service in the 
     uniformed services and the eligible employee knowingly 
     provides written notice of intent not to return to the 
     position of employment after service in the uniformed 
     services, he or she is not entitled to those non-seniority 
     rights and benefits. The eligible employee's written notice 
     does not waive entitlement to any other rights to which he or 
     she is entitled under the Act, including the right to 
     reemployment after service.
       (a) If employment is interrupted by a period of service, 
     the eligible employee must be permitted upon request to use 
     any accrued vacation, annual, or similar leave with pay 
     during the period of service, in order to continue his or her 
     civilian pay. However, the eligible employee is not entitled 
     to use sick leave that accrued with the employing office 
     during a period of service in the uniformed services, unless 
     the employing office allows employees to use sick leave for 
     any reason, or allows other similarly situated employees on 
     comparable furlough or leave of absence to use accrued paid 
     sick leave. Sick leave is usually not comparable to annual or 
     vacation leave; it is generally intended to provide income 
     when the employee or a family member is ill and the employee 
     is unable to work.
       (b) The employing office may not require the eligible 
     employee to use accrued vacation, annual, or similar leave 
     during a period of service in the uniformed services.

                          Health Plan Coverage

       (a) USERRA defines a health plan to include an insurance 
     policy or contract, medical or hospital service agreement, 
     membership or subscription contract, or arrangement under 
     which the employee's health services are provided or the 
     expenses of those services are paid.
       (b) USERRA covers group health plans as defined in the 
     Employee Retirement Income Security Act of 1974 (ERISA) at 29 
     U.S.C. 1191b(a). USERRA applies to group health plans that 
     are subject to ERISA, and plans that are not subject to 
     ERISA, such as those sponsored by the Federal Government.
       (c) USERRA covers multi-employer plans maintained pursuant 
     to one or more collective bargaining agreements between 
     employers and employee organizations. USERRA applies to 
     multi-employer plans as they are defined in ERISA at 29 
     U.S.C. 1002(37). USERRA contains provisions that apply 
     specifically to multi-employer plans in certain situations.
       If the eligible employee has coverage under a health plan 
     in connection with his or her employment, the plan must 
     permit the employee to elect to continue the coverage for a 
     certain period of time as described below:
       (a) When the eligible employee is performing service in the 
     uniformed services, he or she is entitled to continuing 
     coverage for himself or herself (and dependents if the plan 
     offers dependent coverage) under a health plan provided in 
     connection with the employment. The plan must allow the 
     eligible employee to elect to continue coverage for a period 
     of time that is the lesser of:
       (1) The 24-month period beginning on the date on which the 
     eligible employee's absence for the purpose of performing 
     service begins; or,
       (2) The period beginning on the date on which the eligible 
     employee's absence for the purpose of performing service 
     begins, and ending on the date on which he or she fails to 
     return from service or apply for a position of employment as 
     provided under sections 1002.115-123 of these regulations.
       (b) USERRA does not require the employing office to 
     establish a health plan if there is no health plan coverage 
     in connection with the employment, or, where there is a plan, 
     to provide any particular type of coverage.
       (c) USERRA does not require the employing office to permit 
     the eligible employee to initiate new health plan coverage at 
     the beginning of a period of service if he or she did not 
     previously have such coverage.
       USERRA does not specify requirements for electing 
     continuing coverage. Health plan administrators may develop 
     reasonable requirements addressing how continuing coverage 
     may be elected, consistent with the terms of the plan and the 
     Act's exceptions to the requirement that the employee give 
     advance notice of service in the uniformed services. For 
     example, the eligible employee cannot be precluded from 
     electing continuing health plan coverage under circumstances 
     where it is impossible or unreasonable for him or her to make 
     a timely election of coverage.
       (a) If the eligible employee performs service in the 
     uniformed service for fewer than 31 days, he or she cannot be 
     required to pay more than the regular employee share, if any, 
     for health plan coverage.
       (b) If the eligible employee performs service in the 
     uniformed service for 31 or more days, he or she may be 
     required to pay no more than 102% of the full premium under 
     the plan, which represents the employing office's share plus 
     the employee's share, plus 2% for administrative costs.
       (c) USERRA does not specify requirements for methods of 
     paying for continuing coverage. Health plan administrators 
     may develop reasonable procedures for payment, consistent 
     with the terms of the plan.

[[Page H1826]]

       The actions a plan administrator may take regarding the 
     provision or cancellation of an eligible employee's 
     continuing coverage depend on whether the employee is excused 
     from the requirement to give advance notice, whether the plan 
     has established reasonable rules for election of continuation 
     coverage, and whether the plan has established reasonable 
     rules for the payment for continuation coverage.
       (a) No notice of service and no election of continuation 
     coverage: If an employing office provides employment-based 
     health coverage to an eligible employee who leaves employment 
     for uniformed service without giving advance notice of 
     service, the plan administrator may cancel the employee's 
     health plan coverage upon the employee's departure from 
     employment for uniformed service. However, in cases in which 
     an eligible employee's failure to give advance notice of 
     service was excused under the statute because it was 
     impossible, unreasonable, or precluded by military necessity, 
     the plan administrator must reinstate the employee's health 
     coverage retroactively upon his or her election to continue 
     coverage and payment of all unpaid amounts due, and the 
     employee must incur no administrative reinstatement costs. In 
     order to qualify for an exception to the requirement of 
     timely election of continuing health care, an eligible 
     employee must first be excused from giving notice of service 
     under the statute.
       (b) Notice of service but no election of continuing 
     coverage: Plan administrators may develop reasonable 
     requirements addressing how continuing coverage may be 
     elected. Where health plans are also covered under the 
     Consolidated Omnibus Budget Reconciliation Act of 1985, 26 
     U.S.C. 4980B (COBRA), it may be reasonable for a health plan 
     administrator to adopt COBRA-compliant rules regarding 
     election of continuing coverage, as long as those rules do 
     not conflict with any provision of USERRA or this rule. If an 
     employing office provides employment-based health coverage to 
     an eligible employee who leaves employment for uniformed 
     service for a period of service in excess of 30 days after 
     having given advance notice of service but without making an 
     election regarding continuing coverage, the plan 
     administrator may cancel the employee's health plan coverage 
     upon the employee's departure from employment for uniformed 
     service, but must reinstate coverage without the imposition 
     of administrative reinstatement costs under the following 
     conditions:
       (1) Plan administrators who have developed reasonable rules 
     regarding the period within which an employee may elect 
     continuing coverage must permit retroactive reinstatement of 
     uninterrupted coverage to the date of departure if the 
     eligible employee elects continuing coverage and pays all 
     unpaid amounts due within the periods established by the 
     plan;
       (2) In cases in which plan administrators have not 
     developed rules regarding the period within which an employee 
     may elect continuing coverage, the plan must permit 
     retroactive reinstatement of uninterrupted coverage to the 
     date of departure upon the eligible employee's election and 
     payment of all unpaid amounts at any time during the period 
     established in section 1002.164(a).
       (c) Election of continuation coverage without timely 
     payment: Health plan administrators may adopt reasonable 
     rules allowing cancellation of coverage if timely payment is 
     not made. Where health plans are covered under COBRA, it may 
     be reasonable for a health plan administrator to adopt COBRA-
     compliant rules regarding payment for continuing coverage, as 
     long as those rules do not conflict with any provision of 
     USERRA or this rule.
       (a) If health plan coverage for the eligible employee or a 
     dependent was terminated by reason of service in the 
     uniformed services, that coverage must be reinstated upon 
     reemployment. An exclusion or waiting period may not be 
     imposed in connection with the reinstatement of coverage upon 
     reemployment, if an exclusion or waiting period would not 
     have been imposed had coverage not been terminated by reason 
     of such service.
       (b) USERRA permits a health plan to impose an exclusion or 
     waiting period as to illnesses or injuries determined by the 
     Secretary of Veterans Affairs to have been incurred in, or 
     aggravated during, performance of service in the uniformed 
     services. The determination that the employee's illness or 
     injury was incurred in, or aggravated during, the performance 
     of service may only be made by the Secretary of Veterans 
     Affairs or his or her representative. Other coverage, for 
     injuries or illnesses that are not service-related (or for 
     the employee's dependents, if he or she has dependent 
     coverage), must be reinstated subject to paragraph (a) of 
     this section.
       USERRA requires the employing office to reinstate or direct 
     the reinstatement of health plan coverage upon request at 
     reemployment. USERRA permits but does not require the 
     employing office to allow the employee to delay reinstatement 
     of health plan coverage until a date that is later than the 
     date of reemployment.
       Liability under a multi-employer plan for employer 
     contributions and benefits in connection with USERRA's health 
     plan provisions must be allocated either as the plan sponsor 
     provides, or, if the sponsor does not provide, to the 
     eligible employee's last employer before his or her service. 
     If the last employer is no longer functional, liability for 
     continuing coverage is allocated to the health plan.
       (a) Some employees receive health plan benefits provided 
     pursuant to a multi-employer plan that utilizes a health 
     benefits account system in which an employee accumulates 
     prospective health benefit eligibility, also commonly 
     referred to as ``dollar bank,'' ``credit bank,'' and ``hour 
     bank'' plans. In such cases, where an employee with a 
     positive health benefits account balance elects to continue 
     the coverage, the employee may further elect either option 
     below:
       (1) The eligible employee may expend his or her health 
     account balance during an absence from employment due to 
     service in the uniformed services in lieu of paying for the 
     continuation of coverage as set out in section 1002.166. If 
     an eligible employee's health account balance becomes 
     depleted during the applicable period provided for in section 
     1002.164(a), the employee must be permitted, at his or her 
     option, to continue coverage pursuant to section 1002.166. 
     Upon reemployment, the plan must provide for immediate 
     reinstatement of the eligible employee as required by section 
     1002.168, but may require the employee to pay the cost of the 
     coverage until the employee earns the credits necessary to 
     sustain continued coverage in the plan.
       (2) The eligible employee may pay for continuation coverage 
     as set out in section 1002.166, in order to maintain intact 
     his or her account balance as of the beginning date of the 
     absence from employment due to service in the uniformed 
     services. This option permits the eligible employee to resume 
     usage of the account balance upon reemployment.
       (b) Employers or plan administrators providing such plans 
     should counsel employees of their options set out in this 
     subsection.

              Subpart E: Reemployment Rights and Benefits

                           Prompt Employment

                         Reemployment Position

                     Seniority Rights and Benefits

                           Disabled Employees

[[Page H1827]]

  


                              Rate of Pay

                      Protection Against Discharge

                         Pension Plan Benefits

                          Prompt Reemployment

       The employing office must promptly reemploy the employee 
     when he or she returns from a period of service if the 
     employee meets the Act's eligibility criteria as described in 
     Subpart C of these regulations.
       ``Prompt reemployment'' means as soon as practicable under 
     the circumstances of each case. Absent unusual circumstances, 
     reemployment must occur within two weeks of the eligible 
     employee's application for reemployment. For example, prompt 
     reinstatement after a weekend National Guard duty generally 
     means the next regularly scheduled working day. On the other 
     hand, prompt reinstatement following several years of active 
     duty may require more time, because the employing office may 
     have to reassign or give notice to another employee who 
     occupied the returning employee's position.

                         Reemployment Position

       As a general rule, the eligible employee is entitled to 
     reemployment in the job position that he or she would have 
     attained with reasonable certainty if not for the absence due 
     to uniformed service. This position is known as the escalator 
     position. The principle behind the escalator position is 
     that, if not for the period of uniformed service, the 
     eligible employee could have been promoted (or, 
     alternatively, demoted, transferred, or laid off) due to 
     intervening events. The escalator principle requires that the 
     eligible employee be reemployed in a position that reflects 
     with reasonable certainty the pay, benefits, seniority, and 
     other job perquisites, that he or she would have attained if 
     not for the period of service. Depending upon the specific 
     circumstances, the employing office may have the option, or 
     be required, to reemploy the eligible employee in a position 
     other than the escalator position.
       In all cases, the starting point for determining the proper 
     reemployment position is the escalator position, which is the 
     job position that the eligible employee would have attained 
     if his or her continuous employment had not been interrupted 
     due to uniformed service. Once this position is determined, 
     the employing office may have to consider several factors 
     before determining the appropriate reemployment position in 
     any particular case. Such factors may include the eligible 
     employee's length of service, qualifications, and disability, 
     if any. The actual reemployment position may be either the 
     escalator position; the pre-service position; a position 
     comparable to the escalator or pre-service position; or, the 
     nearest approximation to one of these positions.
       (a) Yes. The reemployment position includes the seniority, 
     status, and rate of pay that an eligible employee would 
     ordinarily have attained in that position given his or her 
     job history, including prospects for future earnings and 
     advancement. The employing office must determine the 
     seniority rights, status, and rate of pay as though the 
     eligible employee had been continuously employed during the 
     period of service. The seniority rights, status, and pay of 
     an employment position include those established (or changed) 
     by a collective bargaining agreement, employer policy, or 
     employment practice. The sources of seniority rights, status, 
     and pay include agreements, policies, and practices in effect 
     at the beginning of the eligible employee's service, and any 
     changes that may have occurred during the period of service. 
     In particular, the eligible employee's status in the 
     reemployment position could include opportunities for 
     advancement, general working conditions, job location, shift 
     assignment, rank, responsibility, and geographical location.
       (b) If an opportunity for promotion, or eligibility for 
     promotion, that the eligible employee missed during service 
     is based on a skills test or examination, then the employing 
     office should give him or her a reasonable amount of time to 
     adjust to the employment position and then give a skills test 
     or examination. No fixed amount of time for permitting 
     adjustment to reemployment will be deemed reasonable in all 
     cases. However, in determining a reasonable amount of time to 
     permit an eligible employee to adjust to reemployment before 
     scheduling a makeup test or examination, an employing office 
     may take into account a variety of factors, including but not 
     limited to the length of time the returning employee was 
     absent from work, the level of difficulty of the test itself, 
     the typical time necessary to prepare or study for the test, 
     the duties and responsibilities of the reemployment position 
     and the promotional position, and the nature and 
     responsibilities of the service member while serving in the 
     uniformed service. If the eligible employee is successful on 
     the makeup exam and, based on the results of that exam, there 
     is a reasonable certainty that he or she would have been 
     promoted, or made eligible for promotion, during the time 
     that the employee served in the uniformed service, then the 
     promotion or eligibility for promotion must be made effective 
     as of the date it would have occurred had employment not been 
     interrupted by uniformed service.
       Yes. The Act does not prohibit lawful adverse job 
     consequences that result from the eligible employee's 
     restoration on the seniority ladder. Depending on the 
     circumstances, the escalator principle may cause an eligible 
     employee to be reemployed in a higher or lower position, laid 
     off, or even terminated. For example, if an eligible 
     employee's seniority or job classification would have 
     resulted in the employee being laid off during the period of 
     service, and the layoff continued after the date of 
     reemployment, reemployment would reinstate the employee to 
     layoff status. Similarly, the status of the reemployment 
     position requires the employing office to assess what would 
     have happened to such factors as the eligible employee's 
     opportunities for advancement, working conditions, job 
     location, shift assignment, rank, responsibility, and 
     geographical location, if he or she had remained continuously 
     employed. The reemployment position may involve transfer to 
     another shift or location, more or less strenuous working 
     conditions, or changed opportunities for advancement, 
     depending upon the application of the escalator principle.
       Once the eligible employee's escalator position is 
     determined, other factors may allow, or require, the 
     employing office to reemploy the employee in a position other 
     than the escalator position. These factors, which are 
     explained in sections 1002.196 through 1002.199, are:
       (a) The length of the eligible employee's most recent 
     period of uniformed service;
       (b) The eligible employee's qualifications; and,
       (c) Whether the eligible employee has a disability incurred 
     or aggravated during uniformed service.
       Following a period of service in the uniformed services of 
     less than 91 days, the eligible employee must be reemployed 
     according to the following priority:
       (a) The eligible employee must be reemployed in the 
     escalator position. He or she must be qualified to perform 
     the duties of this position. The employing office must make 
     reasonable efforts to help the eligible employee become 
     qualified to perform the duties of this position.
       (b) If the eligible employee is not qualified to perform 
     the duties of the escalator position after reasonable efforts 
     by the employing office, the employee must be reemployed in 
     the position in which he or she was employed on the date that 
     the period of service began. The eligible employee must be 
     qualified to perform the duties of this position. The 
     employing office must make reasonable efforts to help the 
     eligible employee become qualified to perform the duties of 
     this position.
       (c) If the eligible employee is not qualified to perform 
     the duties of the escalator position or the pre-service 
     position, after reasonable efforts by the employing office, 
     he or she must be reemployed in any other position that is 
     the nearest approximation first to the escalator position and 
     then to the pre-service position. The eligible employee must 
     be qualified to perform the duties of this position. The 
     employing office must make reasonable efforts to help the 
     eligible employee become qualified to perform the duties of 
     this position.

[[Page H1828]]

       Following a period of service of more than 90 days, the 
     eligible employee must be reemployed according to the 
     following priority:
       (a) The eligible employee must be reemployed in the 
     escalator position or a position of like seniority, status, 
     and pay. He or she must be qualified to perform the duties of 
     this position. The employing office must make reasonable 
     efforts to help the eligible employee become qualified to 
     perform the duties of this position.
       (b) If the eligible employee is not qualified to perform 
     the duties of the escalator position or a like position after 
     reasonable efforts by the employing office, the employee must 
     be reemployed in the position in which he or she was employed 
     on the date that the period of service began or in a position 
     of like seniority, status, and pay. The eligible employee 
     must be qualified to perform the duties of this position. The 
     employing office must make reasonable efforts to help the 
     eligible employee become qualified to perform the duties of 
     this position.
       (c) If the eligible employee is not qualified to perform 
     the duties of the escalator position, the pre-service 
     position, or a like position, after reasonable efforts by the 
     employing office, he or she must be reemployed in any other 
     position that is the nearest approximation first to the 
     escalator position and then to the pre-service position. The 
     eligible employee must be qualified to perform the duties of 
     this position. The employing office must make reasonable 
     efforts to help the eligible employee become qualified to 
     perform the duties of this position.
       The eligible employee must be qualified for the 
     reemployment position. The employing office must make 
     reasonable efforts to help the eligible employee become 
     qualified to perform the duties of this position. The 
     employing office is not required to reemploy the eligible 
     employee on his or her return from service if he or she 
     cannot, after reasonable efforts by the employing office, 
     qualify for the appropriate reemployment position.
       (a)(1) ``Qualified'' means that the employee has the 
     ability to perform the essential tasks of the position. The 
     employee's inability to perform one or more nonessential 
     tasks of a position does not make him or her unqualified.
       (2) Whether a task is essential depends on several factors, 
     and these factors include but are not limited to:
       (i) The employing office's judgment as to which functions 
     are essential;
       (ii) Written job descriptions developed before the hiring 
     process begins;
       (iii) The amount of time on the job spent performing the 
     function;
       (iv) The consequences of not requiring the individual to 
     perform the function;
       (v) The terms of a collective bargaining agreement;
       (vi) The work experience of past incumbents in the job; 
     and/or
       (vii) The current work experience of incumbents in similar 
     jobs.
       (b) Only after the employing office makes reasonable 
     efforts, as defined in section 1002.5(p), may it determine 
     that the otherwise eligible employee is not qualified for the 
     reemployment position. These reasonable efforts must be made 
     at no cost to the employee.
       If two or more eligible employees are entitled to 
     reemployment in the same position and more than one employee 
     has reported or applied for employment in that position, the 
     employee who first left the position for uniformed service 
     has the first priority on reemployment in that position. The 
     remaining employee (or employees) is entitled to be 
     reemployed in a position similar to that in which the 
     employee would have been re-employed according to the rules 
     that normally determine a reemployment position, as set out 
     in sections 1002.196 and 1002.197.

                     Seniority Rights and Benefits

       The eligible employee is entitled to the seniority and 
     seniority-based rights and benefits that he or she had on the 
     date the uniformed service began, plus any seniority and 
     seniority-based rights and benefits that the employee would 
     have attained if he or she had remained continuously 
     employed. The eligible employee is not entitled to any 
     benefits to which he or she would not have been entitled had 
     the employee been continuously employed with the employing 
     office. In determining entitlement to seniority and 
     seniority-based rights and benefits, the period of absence 
     from employment due to or necessitated by uniformed service 
     is not considered a break in employment. The rights and 
     benefits protected by USERRA upon reemployment include those 
     provided by the employing office and those required by 
     statute.
       For example, under USERRA, a reemployed service member 
     would be eligible for leave under the Family and Medical 
     Leave Act of 1993, 29 U.S.C. 2601-2654 (FMLA), if the number 
     of months and the number of hours of work for which the 
     service member was employed by the employing office, together 
     with the number of months and the number of hours of work for 
     which the service member would have been employed by the 
     employing office during the period of uniformed service, meet 
     FMLA's eligibility requirements. In the event that a service 
     member is denied FMLA leave for failing to satisfy the FMLA's 
     hours of work requirement due to absence from employment 
     necessitated by uniformed service, the service member may 
     have a cause of action under USERRA but not under the FMLA.
       No. USERRA does not require the employing office to adopt a 
     formal seniority system. USERRA defines seniority as 
     longevity in employment together with any employment benefits 
     that accrue with, or are determined by, longevity in 
     employment. In the absence of a formal seniority system, such 
     as one established through collective bargaining, USERRA 
     looks to the custom and practice in the place of employment 
     to determine the eligible employee's entitlement to any 
     employment benefits that accrue with, or are determined by, 
     longevity in employment.
       A seniority-based right or benefit is one that accrues 
     with, or is determined by, longevity in employment. 
     Generally, whether a right or benefit is seniority-based 
     depends on three factors:
       (a) Whether the right or benefit is a reward for length of 
     service rather than a form of short-term compensation for 
     work performed;
       (b) Whether it is reasonably certain that the eligible 
     employee would have received the right or benefit if he or 
     she had remained continuously employed during the period of 
     service; and,
       (c) Whether it is the employing office's actual custom or 
     practice to provide or withhold the right or benefit as a 
     reward for length of service. Provisions of an employment 
     contract or policies in the employee handbook are not 
     controlling if the employing office's actual custom or 
     practice is different from what is written in the contract or 
     handbook.
       A reasonable certainty is a high probability that the 
     eligible employee would have received the seniority or 
     seniority-based right or benefit if he or she had been 
     continuously employed. The eligible employee does not have to 
     establish that he or she would have received the benefit as 
     an absolute certainty. The eligible employee can demonstrate 
     a reasonable certainty that he or she would have received the 
     seniority right or benefit by showing that other employees 
     with seniority similar to that which the employee would have 
     had if he or she had remained continuously employed received 
     the right or benefit. The employing office cannot withhold 
     the right or benefit based on an assumption that a series of 
     unlikely events could have prevented the eligible employee 
     from gaining the right or benefit.

                           Disabled Employees

       Yes. A disabled service member is entitled, to the same 
     extent as any other individual, to the escalator position he 
     or she would have attained but for uniformed service. If the 
     eligible employee has a disability incurred in, or aggravated 
     during, the period of service in the uniformed services, the 
     employing office must make reasonable efforts to accommodate 
     that disability and to help the employee become qualified to 
     perform the duties of his or her reemployment position. If 
     the eligible employee is not qualified for reemployment in 
     the escalator position because of a disability after 
     reasonable efforts by the employing office to accommodate the 
     disability and to help the employee to become qualified, the 
     employee must be reemployed in a position according to the 
     following priority. The employing office must make reasonable 
     efforts to accommodate the eligible employee's disability and 
     to help him or her to become qualified to perform the duties 
     of one of these positions:
       (a) A position that is equivalent in seniority, status, and 
     pay to the escalator position; or,
       (b) A position that is the nearest approximation to the 
     equivalent position, consistent with the circumstances of the 
     eligible employee's case, in terms of seniority, status, and 
     pay. A position that is the nearest approximation to the 
     equivalent position may be a higher or lower position, 
     depending on the circumstances.
       (a) USERRA requires that the eligible employee be qualified 
     for the reemployment position regardless of any disability. 
     The employing office must make reasonable efforts

[[Page H1829]]

     to help the eligible employee to become qualified to perform 
     the duties of this position. The employing office is not 
     required to reemploy the eligible employee on his or her 
     return from service if he or she cannot, after reasonable 
     efforts by the employing office, qualify for the appropriate 
     reemployment position.
       (b) ``Qualified'' has the same meaning here as in section 
     1002.198.

                              Rate of Pay

       The eligible employee's rate of pay is determined by 
     applying the same escalator principles that are used to 
     determine the reemployment position, as follows:
       (a) If the eligible employee is reemployed in the escalator 
     position, the employing office must compensate him or her at 
     the rate of pay associated with the escalator position. The 
     rate of pay must be determined by taking into account any pay 
     increases, differentials, step increases, merit increases, or 
     periodic increases that the eligible employee would have 
     attained with reasonable certainty had he or she remained 
     continuously employed during the period of service. In 
     addition, when considering whether merit or performance 
     increases would have been attained with reasonable certainty, 
     an employing office may examine the returning eligible 
     employee's own work history, his or her history of merit 
     increases, and the work and pay history of employees in the 
     same or similar position. For example, if the eligible 
     employee missed a merit pay increase while performing 
     service, but qualified for previous merit pay increases, then 
     the rate of pay should include the merit pay increase that 
     was missed. If the merit pay increase that the eligible 
     employee missed during service is based on a skills test or 
     examination, then the employing office should give the 
     employee a reasonable amount of time to adjust to the 
     reemployment position and then give him or her the skills 
     test or examination. No fixed amount of time for permitting 
     adjustment to reemployment will be deemed reasonable in all 
     cases. However, in determining a reasonable amount of time to 
     permit an eligible employee to adjust to reemployment before 
     scheduling a makeup test or examination, an employing office 
     may take into account a variety of factors, including but not 
     limited to the length of time the returning employee was 
     absent from work, the level of difficulty of the test itself, 
     the typical time necessary to prepare or study for the test, 
     the duties and responsibilities of the reemployment position 
     and the promotional position, and the nature and 
     responsibilities of the service member while serving in the 
     uniformed service. The escalator principle also applies in 
     the event a pay reduction occurred in the reemployment 
     position during the period of service. Any pay adjustment 
     must be made effective as of the date it would have occurred 
     had the eligible employee's employment not been interrupted 
     by uniformed service.
       (b) If the eligible employee is reemployed in the pre-
     service position or another position, the employing office 
     must compensate him or her at the rate of pay associated with 
     the position in which he or she is reemployed. As with the 
     escalator position, the rate of pay must be determined by 
     taking into account any pay increases, differentials, step 
     increases, merit increases, or periodic increases that the 
     eligible employee would have attained with reasonable 
     certainty had he or she remained continuously employed during 
     the period of service.

                      Protection Against Discharge

       Yes. If the eligible employee's most recent period of 
     service in the uniformed services was more than 30 days, he 
     or she must not be discharged except for cause--
       (a) For 180 days after the eligible employee's date of 
     reemployment if his or her most recent period of uniformed 
     service was more than 30 days but less than 181 days; or,
       (b) For one year after the date of reemployment if the 
     eligible employee's most recent period of uniformed service 
     was more than 180 days.
       The eligible employee may be discharged for cause based 
     either on conduct or, in some circumstances, because of the 
     application of other legitimate nondiscriminatory reasons.
       In a discharge action based on conduct, the employing 
     office bears the burden of proving that it is reasonable to 
     discharge the eligible employee for the conduct in question, 
     and that he or she had notice, which was express or can be 
     fairly implied, that the conduct would constitute cause for 
     discharge.
       (b) If, based on the application of other legitimate 
     nondiscriminatory reasons, the eligible employee's job 
     position is eliminated, or the eligible employee is placed on 
     layoff status, either of these situations would constitute 
     cause for purposes of USERRA. The employing office bears the 
     burden of proving that the eligible employee's job would have 
     been eliminated or that he or she would have been laid off.

                         Pension Plan Benefits

       On reemployment, the eligible employee is treated as not 
     having a break in service with the employing office for 
     purposes of participation, vesting and accrual of benefits in 
     a pension plan, by reason of the period of absence from 
     employment due to or necessitated by service in the uniformed 
     services.
       (a) Depending on the length of the eligible employee's 
     period of service, he or she is entitled to take from one to 
     ninety days following service before reporting back to work 
     or applying for reemployment (See section 1002.115). This 
     period of time must be treated as continuous service with the 
     employing office for purposes of determining participation, 
     vesting and accrual of pension benefits under the plan.
       (b) If the eligible employee is hospitalized for, or 
     convalescing from, an illness or injury incurred in, or 
     aggravated during, service, he or she is entitled to report 
     to or submit an application for reemployment at the end of 
     the time period necessary for him or her to recover from the 
     illness or injury. This period, which may not exceed two 
     years from the date the eligible employee completed service, 
     except in circumstances beyond his or her control, must be 
     treated as continuous service with the employing office for 
     purposes of determining the participation, vesting and 
     accrual of pension benefits under the plan.
       (a) The Employee Retirement Income Security Act of 1974 
     (ERISA) defines an employee pension benefit plan as a plan 
     that provides retirement income to employees, or defers 
     employee income to a period extending to or beyond the 
     termination of employment. USERRA also covers certain pension 
     plans not covered by ERISA, such as those sponsored by the 
     Federal Government.
       (b) USERRA does not cover pension benefits under the 
     Federal Thrift Savings Plan; those benefits are covered under 
     5 U.S.C. 8432b.
       With the exception of multi-employer plans, which have 
     separate rules discussed below, the employing office is 
     required to ensure the funding of any obligation of the plan 
     to provide benefits that are attributable to the eligible 
     employee's period of service. In the case of a defined 
     contribution plan, once the eligible employee is reemployed, 
     the employing office must ensure that the amount of the make-
     up contribution for the employee, if any; the employee's 
     make-up contributions, if any; and the employee's elective 
     deferrals, if any; in the same manner and to the same extent 
     that the amounts are allocated for other employees during the 
     period of service. In the case of a defined benefit plan, the 
     eligible employee's accrued benefit will be increased for the 
     period of service once he or she is reemployed and, if 
     applicable, has repaid any amounts previously paid to him or 
     her from the plan and made any employee contributions that 
     may be required to be made under the plan.
       (a) Employer contributions are not required until the 
     eligible employee is reemployed. For employer contributions 
     to a plan in which the eligible employee is not required or 
     permitted to contribute, the contribution attributable to the 
     employee's period of service must be made no later than 
     ninety days after the date of reemployment, or when plan 
     contributions are normally due for the year in which the 
     service in the uniformed services was performed, whichever is 
     later. If it is impossible or unreasonable for the 
     contribution to be made within this time period, the 
     contribution must be made as soon as practicable.
       (b) If the eligible employee is enrolled in a contributory 
     plan, he or she is allowed (but not required) to make up his 
     or her missed contributions or elective deferrals. These 
     makeup contributions, or elective deferrals, must be made 
     during a time period starting with the date of reemployment 
     and continuing for up to three times the length of the 
     eligible employee's immediate past period of uniformed 
     service, with the repayment period not to exceed five years. 
     Makeup contributions or elective deferrals may only be made 
     during this period and while the employee is employed with 
     the post-service employing office.
       (c) If the eligible employee's plan is contributory and he 
     or she does not make up his or her contributions or elective 
     deferrals, he or she will not receive the employer match or 
     the accrued benefit attributable to his or her contribution. 
     This is true because employer contributions are contingent on 
     or attributable to the employee's contributions or elective 
     deferrals only to the extent that the employee makes up his 
     or her payments to the plan. Any employer contributions that 
     are contingent on or attributable to the eligible employee's 
     make-up contributions or elective deferrals must be made 
     according to the plan's requirements for employer matching 
     contributions.
       (d) The eligible employee is not required to make up the 
     full amount of employee contributions or elective deferrals 
     that he or she missed making during the period of service. If 
     the eligible employee does not make up all of the missed 
     contributions or elective deferrals, his or her pension may 
     be less than if he or she had done so.

[[Page H1830]]

       (e) Any vested accrued benefit in the pension plan that the 
     eligible employee was entitled to prior to the period of 
     uniformed service remains intact whether or not he or she 
     chooses to be reemployed under the Act after leaving the 
     uniformed service.
       (f) An adjustment will be made to the amount of employee 
     contributions or elective deferrals that the eligible 
     employee will be able to make to the pension plan for any 
     employee contributions or elective deferrals he or she 
     actually made to the plan during the period of service.
       No. The eligible employee is not required or permitted to 
     make up a missed contribution in an amount that exceeds the 
     amount he or she would have been permitted or required to 
     contribute had he or she remained continuously employed 
     during the period of service.
       Yes, provided the plan is a defined benefit plan. If the 
     eligible employee received a distribution of all or part of 
     the accrued benefit from a defined benefit plan in connection 
     with his or her service in the uniformed services before he 
     or she became reemployed, he or she must be allowed to repay 
     the withdrawn amounts when he or she is reemployed. The 
     amount the eligible employee must repay includes any interest 
     that would have accrued had the monies not been withdrawn. 
     The eligible employee must be allowed to repay these amounts 
     during a time period starting with the date of reemployment 
     and continuing for up to three times the length of the 
     employee's immediate past period of uniformed service, with 
     the repayment period not to exceed five years (or such longer 
     time as may be agreed to between the employing office and the 
     employee), provided the employee is employed with the post-
     service employing office during this period.
       The amount of the eligible employee's pension benefit 
     depends on the type of pension plan.
       (a) In a non-contributory defined benefit plan, where the 
     amount of the pension benefit is determined according to a 
     specific formula, the eligible employee's benefit will be the 
     same as though he or she had remained continuously employed 
     during the period of service.
       (b) In a contributory defined benefit plan, the eligible 
     employee will need to make up contributions in order to have 
     the same benefit as if he or she had remained continuously 
     employed during the period of service.
       (c) In a defined contribution plan, the benefit may not be 
     the same as if the employee had remained continuously 
     employed, even though the employee and the employer make up 
     any contributions or elective deferrals attributable to the 
     period of service, because the employee is not entitled to 
     forfeitures and earnings or required to experience losses 
     that accrued during the period or periods of service.
       A multi-employer pension benefit plan is one to which more 
     than one employer is required to contribute, and which is 
     maintained pursuant to one or more collective bargaining 
     agreements between one or more employee organizations and 
     more than one employer. The Act uses ERISA's definition of a 
     multi-employer plan. In addition to the provisions of USERRA 
     that apply to all pension benefit plans, there are provisions 
     that apply specifically to multi-employer plans, as follows:
       (a) The last employer that employed the eligible employee 
     before the period of service is responsible for making the 
     employer contribution to the multi-employer plan, if the plan 
     sponsor does not provide otherwise. If the last employer is 
     no longer functional, the plan must nevertheless provide 
     coverage to the eligible employee.
       (b) An employer that contributes to a multi-employer plan 
     and that reemploys the eligible employee pursuant to USERRA 
     must provide written notice of reemployment to the plan 
     administrator within 30 days after the date of reemployment. 
     The returning service member should notify the reemploying 
     employer that he or she has been reemployed pursuant to 
     USERRA. The 30-day period within which the reemploying 
     employer must provide written notice to the multi-employer 
     plan pursuant to this subsection does not begin until the 
     employer has knowledge that the eligible employee was re-
     employed pursuant to USERRA.
       (c) The eligible employee is entitled to the same employer 
     contribution whether he or she is reemployed by the pre-
     service employer or by a different employer contributing to 
     the same multi-employer plan, provided that the pre-service 
     employer and the post-service employer share a common means 
     or practice of hiring the employee, such as common 
     participation in a union hiring hall.
       In many pension benefit plans, the eligible employee's 
     compensation determines the amount of his or her contribution 
     or the retirement benefit to which he or she is entitled.
       (a) Where the eligible employee's rate of compensation must 
     be calculated to determine pension entitlement, the 
     calculation must be made using the rate of pay that the 
     employee would have received but for the period of uniformed 
     service.
       (b) (1) Where the rate of pay the eligible employee would 
     have received is not reasonably certain, the average rate of 
     compensation during the 12-month period prior to the period 
     of uniformed service must be used.
       (2) Where the rate of pay the eligible employee would have 
     received is not reasonably certain and he or she was employed 
     for less than 12 months prior to the period of uniformed 
     service, the average rate of compensation must be derived 
     from this shorter period of employment that preceded service.

       Subpart F: Compliance Assistance, Enforcement and Remedies

                         Compliance Assistance

                       Investigation and Referral

     Enforcement of Rights and Benefits Against an Employing Office

                         Compliance Assistance

       The Office of Congressional Workplace Rights provides 
     assistance to any person or entity who is covered by the CAA 
     with respect to employment and reemployment rights and 
     benefits under USERRA as applied by the CAA. This assistance 
     includes responding to inquiries, and providing a program of 
     education and information on matters relating to USERRA.

                       Investigation and Referral

       (a) The Procedural Rules of the Office of Congressional 
     Workplace Rights set forth the procedures for considering and 
     resolving alleged violations of the laws made applicable by 
     the CAA, including USERRA. The Rules include procedures for 
     filing claims and participating in administrative dispute 
     resolution proceedings at the Office of Congressional 
     Workplace Rights, including procedures for the conduct of 
     hearings and for appeals to the Board of Directors. The 
     Procedural Rules also address other matters of general 
     applicability to the dispute resolution process and to the 
     operations of the Office.
       (b) The Procedural Rules of the Office of Congressional 
     Workplace Rights can be found on the Office's website at 
     www.ocwr.gov.

 Enforcement of Rights and Benefits Against an Employing Office

       Yes. Eligible employees must first file a claim form with 
     the Office of Congressional Workplace Rights before making an 
     election between requesting an administrative hearing or 
     filing a civil action in Federal district court.
       An action under section 206 of the CAA may be brought by an 
     eligible employee, as defined by section 1002.5(f) of Subpart 
     A of these regulations. An action under section 208(a) of the 
     CAA may be brought by a covered employee, as defined by 
     section 1002.5 (e) of Subpart A of these regulations. An 
     employing office, prospective employing office or other 
     similar entity may not bring an action under the Act.
       In an action under USERRA, only the covered employing 
     office or a potential covered employing office, as the case 
     may be, is a necessary party respondent. Under the Office of 
     Congressional Workplace Rights Procedural Rules, a hearing 
     officer has authority to require the filing of briefs, 
     memoranda of law, and the presentation of oral argument. A 
     hearing officer also may order the production of evidence and 
     the appearance of witnesses.

[[Page H1831]]

       If an eligible employee is a prevailing party with respect 
     to any claim under USERRA, the hearing officer, Board, or 
     court may award reasonable attorney fees, expert witness 
     fees, and other litigation expenses.
       USERRA does not have a statute of limitations. However, 
     section 402 of the CAA, 2 U.S.C. 1402, requires a covered 
     employee to file a claim with the Office of Congressional 
     Workplace Rights alleging a violation of the CAA no later 
     than 180 days after the date of the alleged violation. A 
     claim by an eligible employee alleging a USERRA violation as 
     applied by the CAA would follow this requirement.
       In any action or proceeding the following relief may be 
     awarded:
       (a) The court and/or hearing officer may require the 
     employing office to comply with the provisions of the Act;
       (b) The court and/or hearing officer may require the 
     employing office to compensate the eligible employee for any 
     loss of wages or benefits suffered by reason of the employing 
     office's failure to comply with the Act;
       (c) The court and/or hearing officer may require the 
     employing office to pay the eligible employee an amount equal 
     to the amount of lost wages and benefits as liquidated 
     damages, if the court and/or hearing officer determines that 
     the employing office's failure to comply with the Act was 
     willful. A violation shall be considered to be willful if the 
     employing office either knew or showed reckless disregard for 
     whether its conduct was prohibited by the Act.
       (d) Any wages, benefits, or liquidated damages awarded 
     under paragraphs (b) and (c) of this section are in addition 
     to, and must not diminish, any of the other rights and 
     benefits provided by USERRA (such as, for example, the right 
     to be employed or reemployed by the employing office).
       When approved by Congress for the other employing offices 
     covered by the CAA, these regulations will have the prefix 
     ``C.''

               Subpart A: Introduction to the Regulations

       This part implements certain provisions of the Uniformed 
     Services Employment and Reemployment Rights Act of 1994 
     (``USERRA'' or ``the Act''), as applied by the Congressional 
     Accountability Act (``CAA''). 2 U.S.C. 1316. USERRA is a law 
     that establishes certain rights and benefits for employees, 
     and duties for employers. USERRA affects employment, 
     reemployment, and retention in employment, when employees 
     serve or have served in the uniformed services. There are 
     five subparts to these regulations. Subpart A gives an 
     introduction to the USERRA regulations. Subpart B describes 
     USERRA's anti-discrimination and anti-retaliation provisions. 
     Subpart C explains the steps that must be taken by a 
     uniformed service member who wants to return to his or her 
     previous civilian employment. Subpart D describes the rights, 
     benefits, and obligations of persons absent from employment 
     due to service in the uniformed services, including rights 
     and obligations related to health plan coverage. Subpart E 
     describes the rights, benefits, and obligations of the 
     returning veteran or service member. Subpart F explains the 
     role of the Office of Congressional Workplace Rights in 
     administering USERRA as applied by the CAA.
       USERRA is the latest in a series of laws protecting 
     veterans' employment and reemployment rights going back to 
     the Selective Training and Service Act of 1940. USERRA's 
     immediate predecessor was commonly referred to as the 
     Veterans' Reemployment Rights Act (``VRRA''), which was 
     enacted as section 404 of the Vietnam Era Veterans' 
     Readjustment Assistance Act of 1974. In enacting USERRA, 
     Congress emphasized USERRA's continuity with the VRRA and its 
     intention to clarify and strengthen that law. Congress also 
     emphasized that Federal laws protecting veterans' employment 
     and reemployment rights for the past fifty years had been 
     successful and that the large body of case law that had 
     developed under those statutes remained in full force and 
     effect, to the extent it is consistent with USERRA. USERRA 
     authorized the Department of Labor to publish regulations 
     implementing the Act for State, local government, and private 
     employers. USERRA also authorized the Office of Personnel 
     Management to issue regulations implementing the Act for 
     Federal executive agencies, with the exception of certain 
     Federal intelligence agencies. For those Federal intelligence 
     agencies, USERRA established a separate program for 
     employees. Section 206 of the CAA, 2 U.S.C. 1316, requires 
     the Board of Directors of the Office of Congressional 
     Workplace Rights to issue regulations to implement the 
     statutory provisions relating to employment and reemployment 
     rights of members of the uniformed services. The regulations 
     are required to be the same as substantive regulations 
     promulgated by the Secretary of Labor, except where a 
     modification of such regulations would be more effective for 
     the implementation of the rights and protections of the Act. 
     The Department of Labor issued its regulations, effective 
     January 18, 2006. The regulations set forth herein are the 
     substantive regulations that the Board of Directors of the 
     Office of Congressional Workplace Rights has promulgated for 
     the legislative branch, for the implementation of the USERRA 
     provisions of the CAA. All references to USERRA in these 
     regulations, means USERRA, as applied by the CAA.
       USERRA, as applied by the CAA, became effective for 
     employing offices of the legislative branch on January 23, 
     1996.
       (a) As applied by the CAA, the Executive Director of the 
     Office of Congressional Workplace Rights is responsible for 
     providing education and information to any covered employing 
     office or employee with respect to their rights, benefits, 
     and obligations under the USERRA provisions of the CAA.
       (b) The Office of Congressional Workplace Rights, under the 
     direction of the Executive Director, is responsible for the 
     processing of claims filed pursuant to these regulations. 
     More information about the Office of Congressional Workplace 
     Rights' role is contained in Subpart F.
       (a) Act or USERRA means the Uniformed Services Employment 
     and Reemployment Rights Act of 1994, as applied by the CAA.
       (b) Benefit, benefit of employment, or rights and benefits 
     means any advantage, profit, privilege, gain, status, 
     account, or interest (other than wages or salary for work 
     performed) that accrues to the employee because of an 
     employment contract, employment agreement, or employing 
     office policy, plan, or practice. The term includes rights 
     and benefits under a pension plan, health plan, insurance 
     coverage and awards, bonuses, severance pay, supplemental 
     unemployment benefits, vacations, and, where applicable, the 
     opportunity to select work hours or the location of 
     employment.
       (c) Board means Board of Directors of the Office of 
     Congressional Workplace Rights.
       (d) CAA means the Congressional Accountability Act of 1995, 
     as amended (Pub. L. 104-1, 109 Stat. 3, 2 U.S.C. 1301-1438).
       (e) Covered employee means any employee, including an 
     applicant for employment and a former employee, of (1) the 
     House of Representatives; (2) the Senate; (3) the Office of 
     Congressional Accessibility Services; (4) the Capitol Police; 
     (5) the Congressional Budget Office; (6) the Office of the 
     Architect of the Capitol; (7) the Office of the Attending 
     Physician; (8) the Government Accountability Office; (9) the 
     Library of Congress; and (10) the Office of Congressional 
     Workplace Rights.
       (f) Eligible employee means a covered employee performing 
     service in the uniformed services, as defined in 1002.5(t) of 
     this subpart, whose service has not been terminated upon 
     occurrence of any of the events enumerated in section 
     1002.135 of these regulations. For the purpose of defining 
     who is covered under the discrimination section of these 
     regulations, ``performing service'' means an eligible 
     employee 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 the uniformed services.
       (g) Employee of the Office of the Architect of the Capitol 
     includes any employee of the Office of the Architect of the 
     Capitol, the Botanic Gardens, or the Senate Restaurants.
       (h) Employee of the Capitol Police includes any member or 
     officer of the Capitol Police.
       (i) Employee of the House of Representatives includes an 
     individual occupying a position for which the pay is 
     disbursed by the Chief Administrative Officer of the House of 
     Representatives, or another official designated by the House 
     of Representatives, or any employment position in an entity 
     that is paid with funds derived from the clerk-hire allowance 
     of the House of Representatives but not any such individual 
     employed by any entity listed in subparagraphs (3) through 
     (10) of paragraph (e) above.
       (j) Employee of the Senate includes an individual occupying 
     a position for which the pay is disbursed by the Secretary of 
     the Senate, but not any such individual employed by any 
     entity listed in subparagraphs (3) through (10) of paragraph 
     (e) above.
       (k) Employing office means (1) the Office of Congressional 
     Accessibility Services; (2) the Capitol Police Board; (3) the 
     Congressional Budget Office; (4) the Office of the Architect 
     of the Capitol; (5) the Office of the Attending Physician; 
     (6) the Government Accountability Office; (7) the Library of 
     Congress; or (8) the Office of Congressional Workplace 
     Rights.

[[Page H1832]]

       (l) Health plan means an insurance policy, insurance 
     contract, medical or hospital service agreement, membership 
     or subscription contract, or other arrangement under which 
     health services for individuals are provided or the expenses 
     of such services are paid.
       (m) Notice, when the eligible employee is required to give 
     advance notice of service, means any written or oral 
     notification of an obligation or intention to perform service 
     in the uniformed services provided to an employing office by 
     the employee who will perform such service, or by the 
     uniformed service in which the service is to be performed.
       (n) Office means the Office of Congressional Workplace 
     Rights.
       (o) Qualified, with respect to an employment position, 
     means having the ability to perform the essential tasks of 
     the position.
       (p) Reasonable efforts, in the case of actions required of 
     an employing office, means actions, including training 
     provided by an employing office that do not place an undue 
     hardship on the employing office.
       (q) Seniority means longevity in employment together with 
     any benefits of employment that accrue with, or are 
     determined by, longevity in employment.
       (r) Service in the uniformed services means the performance 
     of duty on a voluntary or involuntary basis in a uniformed 
     service under competent authority. Service in the uniformed 
     services includes active duty, active and inactive duty for 
     training, National Guard duty under Federal statute, and a 
     period for which a person is absent from a position of 
     employment for an examination to determine the fitness of the 
     person to perform such duty. The term also includes a period 
     for which a person is absent from employment to perform 
     funeral honors duty as authorized by law (10 U.S.C. 12503 or 
     32 U.S.C. 115). The Public Health Security and Bioterrorism 
     Preparedness and Response Act of 2002, Pub. L. 107-188, 
     provides that service as an intermittent disaster-response 
     appointee upon activation of the National Disaster Medical 
     System (NDMS) or as a participant in an authorized training 
     program is deemed ``service in the uniformed services.'' 42 
     U.S.C. 300hh-11(d)(3).
       (s) Undue hardship, in the case of actions taken by an 
     employing office, means an action requiring significant 
     difficulty or expense, when considered in light of--
       (1) The nature and cost of the action needed under USERRA 
     and these regulations;
       (2) the overall financial resources of the facility or 
     facilities involved in the provision of the action; the 
     number of persons employed at such facility; the effect on 
     expenses and resources, or the impact otherwise of such 
     action upon the operation of the facility;
       (3) The overall financial resources of the employing 
     office; the overall size of the business of an employing 
     office with respect to the number of its employees; the 
     number, type, and location of its facilities; and,
       (4) The type of operation or operations of the employing 
     office, including the composition, structure, and functions 
     of the work force of such employing office; the geographic 
     separateness, administrative, or fiscal relationship of the 
     State, District, or satellite office in question to the 
     employing office.
       (t) Uniformed services means the Armed Forces; the Army 
     National Guard and the Air National Guard when engaged in 
     active duty for training, inactive duty training, or full-
     time National Guard duty; the commissioned corps of the 
     Public Health Service; and any other category of persons 
     designated by the President in time of war or national 
     emergency. For purposes of USERRA coverage only, service as 
     an intermittent disaster response appointee of the National 
     Disaster Medical System (NDMS) when federally activated or 
     attending authorized training in support of their Federal 
     mission is deemed ``service in the uniformed services,'' 
     although such appointee is not a member of the ``uniformed 
     services'' as defined by USERRA.
       The definition of ``service in the uniformed services'' 
     covers all categories of military training and service, 
     including duty performed on a voluntary or involuntary basis, 
     in time of peace or war. Although most often understood as 
     applying to National Guard and reserve military personnel, 
     USERRA also applies to persons serving in the active 
     components of the Armed Forces. Certain types of service 
     specified in 42 U.S.C. 300hh-11 by members of the National 
     Disaster Medical System are covered by USERRA.
       (a) USERRA establishes a floor, not a ceiling, for the 
     employment and reemployment rights and benefits of those it 
     protects. In other words, an employing office may provide 
     greater rights and benefits than USERRA requires, but no 
     employing office can refuse to provide any right or benefit 
     guaranteed by USERRA, as applied by the CAA.
       (b) USERRA supersedes any contract, agreement, policy, 
     plan, practice, or other matter that reduces, limits, or 
     eliminates in any manner any right or benefit provided by 
     USERRA, including the establishment of additional 
     prerequisites to the exercise of any USERRA right or the 
     receipt of any USERRA benefit. For example, an office policy 
     that determines seniority based only on actual days of work 
     in the place of employment would be superseded by USERRA, 
     which requires that seniority credit be given for periods of 
     absence from work due to service in the uniformed services.
       (c) USERRA does not supersede, nullify or diminish any 
     Federal law, contract, agreement, policy, plan, practice, or 
     other matter that establishes an employment right or benefit 
     that is more beneficial than, or is in addition to, a right 
     or benefit provided under the Act. For example, although 
     USERRA does not require an employing office to pay an 
     eligible employee for time away from work performing service, 
     an employing office policy, plan, or practice that provides 
     such a benefit is permissible under USERRA.
       (d) If an employing office provides a benefit that exceeds 
     USERRA's requirements in one area, it cannot reduce or limit 
     other rights or benefits provided by USERRA. For example, 
     even though USERRA does not require it, an employing office 
     may provide a fixed number of days of paid military leave per 
     year to employees who are members of the National Guard or 
     Reserve. The fact that it provides such a benefit, however, 
     does not permit an employing office to refuse to provide an 
     unpaid leave of absence to an employee to perform service in 
     the uniformed services in excess of the number of days of 
     paid military leave.

          Subpart B: Anti-Discrimination and Anti-Retaliation

        Protection From Employer Discrimination and Retaliation

        Protection From Employer Discrimination and Retaliation

       An employing office must not deny initial employment, 
     reemployment, retention in employment, promotion, or any 
     benefit of employment to an individual on the basis of his or 
     her membership, application for membership, performance of 
     service, application for service, or obligation for service 
     in the uniformed services.
       An employing office must not retaliate against an eligible 
     employee by taking any adverse employment action against him 
     or her because the eligible employee has taken an action to 
     enforce a protection afforded any person under USERRA; 
     testified or otherwise made a statement in or in connection 
     with a proceeding under USERRA; assisted or participated in a 
     USERRA investigation; or exercised a right provided for by 
     USERRA.
       Under USERRA, as applied by the CAA, the prohibitions 
     against discrimination and retaliation apply to eligible 
     employees in all positions within covered employing offices, 
     including those that are for a brief, nonrecurrent period, 
     and for which there is no reasonable expectation that the 
     employment position will continue indefinitely or for a 
     significant period. However, USERRA's reemployment rights and 
     benefits do not apply to such brief, non-recurrent positions 
     of employment.
       USERRA's provisions, as applied by section 206 of the CAA, 
     prohibit discrimination and retaliation only against eligible 
     employees. Section 208(a) of the CAA, 2 U.S.C. 1317(a), 
     however, prohibits retaliation against all covered employees 
     because the employee has opposed any practice made unlawful 
     under the CAA, including a violation of USERRA's provisions, 
     as applied by the CAA; or testified; assisted; or 
     participated in any manner in a hearing or proceeding under 
     the CAA.

                Subpart C: Eligibility for Reemployment

                  General Eligibility for Reemployment

                  Coverage of Employers and Positions

[[Page H1833]]



             COVERAGE OF SERVICE IN THE UNIFORMED SERVICES

ABSENCE FROM A POSITION OF EMPLOYMENT NECESSITATED BY REASON OF SERVICE 
                       IN THE UNIFORMED SERVICES

                           Period of Service

                       Application for Employment

                          Character of Service

                      Employer Statutory Defenses

                  General Eligibility for Reemployment

       (a) In general, if an eligible employee has been absent 
     from a position of employment in an employing office by 
     reason of service in the uniformed services, he or she will 
     be eligible for reemployment in that same employing office by 
     meeting the following criteria:
       (1) The employing office had advance notice of the eligible 
     employee's service;
       (2) The eligible employee has five years or less of 
     cumulative service in the uniformed services in his or her 
     employment relationship with a particular employing office;
       (3) The eligible employee timely returns to work or applies 
     for reemployment; and,
       (4) The eligible employee has not been separated from 
     service with a disqualifying discharge or under other than 
     honorable conditions.
       (b) These general eligibility requirements have important 
     qualifications and exceptions, which are described in detail 
     in sections 1002.73 through 1002.138. If the employee meets 
     these eligibility criteria, then he or she is eligible for 
     reemployment unless the employing office establishes one of 
     the defenses described in section 1002.139. The employment 
     position to which the eligible employee is entitled is 
     described in sections 1002.191 through 1002.199.
       No. The eligible employee is not required to prove that the 
     employing office discriminated against him or her because of 
     the employee's uniformed service in order to be eligible for 
     reemployment.

                  Coverage of Employers and Positions

       USERRA applies to all covered employing offices of the 
     legislative branch as defined in 2 U.S.C. 1301(9) and 2 
     U.S.C. 1316(a)(2)(C).
       Yes. The definition of employer in the USERRA provision as 
     applied by the CAA includes an employing office that has 
     denied initial employment to an individual in violation of 
     USERRA's anti-discrimination provisions. An employing office 
     need not actually employ an individual to be liable under the 
     Act, if it has denied initial employment on the basis of the 
     individual's membership, application for membership, 
     performance of service, application for service, or 
     obligation for service in the uniformed services. Similarly, 
     the employing office would be liable if it denied initial 
     employment on the basis of the individual's action taken to 
     enforce a protection afforded to any person under USERRA, his 
     or her testimony or statement in connection with any USERRA 
     proceeding, assistance or other participation in a USERRA 
     investigation, or the exercise of any other right provided by 
     the Act. For example, if the individual has been denied 
     initial employment because of his or her obligations as a 
     member of the National Guard or Reserves, the employing 
     office denying employment is liable under USERRA. Similarly, 
     if an employing office withdraws an offer of employment 
     because the individual is called upon to fulfill an 
     obligation in the uniformed services, the employing office 
     withdrawing the employment offer is also liable under USERRA.
       USERRA rights are not diminished because an eligible 
     employee holds a temporary, part-time, probationary, or 
     seasonal employment position. However, an employing office is 
     not required to reemploy an eligible employee if the 
     employment he or she left to serve in the uniformed services 
     was for a brief, nonrecurrent period and there is

[[Page H1834]]

     no reasonable expectation that the employment would have 
     continued indefinitely or for a significant period. The 
     employing office bears the burden of proving this affirmative 
     defense.
       (a) If an eligible employee is laid off with recall rights, 
     or on a leave of absence, he or she is protected under 
     USERRA. If the eligible employee is on layoff and begins 
     service in the uniformed services, or is laid off while 
     performing service, he or she may be entitled to reemployment 
     on return if the employing office would have recalled the 
     employee to employment during the period of service. Similar 
     principles apply if the eligible employee is on a leave of 
     absence from work when he or she begins a period of service 
     in the uniformed services.
       (b) If the eligible employee is sent a recall notice during 
     a period of service in the uniformed services and cannot 
     resume the position of employment because of the service, he 
     or she still remains an eligible employee for purposes of the 
     Act. Therefore, if the employee is otherwise eligible, he or 
     she is entitled to reemployment following the conclusion of 
     the period of service, even if he or she did not respond to 
     the recall notice.
       (c) If the eligible employee is laid off before or during 
     service in the uniformed services, and the employing office 
     would not have recalled him or her during that period of 
     service, the employee is not entitled to reemployment 
     following the period of service simply because he or she is 
     an eligible employee. Reemployment rights under USERRA cannot 
     put the eligible employee in a better position than if he or 
     she had remained in the civilian employment position.
       Yes. USERRA applies to all eligible employees. There is no 
     exclusion for executive, managerial, or professional 
     employees.
       No. USERRA, as applied by the CAA, does not provide 
     protections for an independent contractor.

             COVERAGE OF SERVICE IN THE UNIFORMED SERVICES

       Yes. USERRA's definition of ``service in the uniformed 
     services'' includes a period for which an eligible employee 
     is absent from a position of employment for the purpose of an 
     examination to determine his or her fitness to perform duty 
     in the uniformed services. Military fitness examinations can 
     address more than physical or medical fitness, and include 
     evaluations for mental, educational, and other types of 
     fitness. Any examination to determine an eligible employee's 
     fitness for service is covered, whether it is an initial or 
     recurring examination. For example, a periodic medical 
     examination required of a Reserve component member to 
     determine fitness for continued service is covered.
       (a) USERRA's definition of ``service in the uniformed 
     services'' includes a period for which an eligible employee 
     is absent from employment for the purpose of performing 
     authorized funeral honors duty under 10 U.S.C. 12503 (members 
     of Reserve ordered to perform funeral honors duty) or 32 
     U.S.C. 115 (Member of Air or Army National Guard ordered to 
     perform funeral honors duty).
       (b) Funeral honors duty performed by persons who are not 
     members of the uniformed services, such as members of 
     veterans' service organizations, is not ``service in the 
     uniformed services.''
       Under a provision of the Public Health Security and 
     Bioterrorism Preparedness and Response Act of 2002, 42 U.S.C. 
     300hh 11(d)(3), ``service in the uniformed services'' 
     includes service performed as an intermittent disaster-
     response appointee upon activation of the National Disaster 
     Medical System or participation in an authorized training 
     program, even if the eligible employee is not a member of the 
     uniformed services.
       No. Only Federal National Guard Service is considered 
     ``service in the uniformed services.'' The National Guard has 
     a dual status. It is a Reserve component of the Army, or, in 
     the case of the Air National Guard, of the Air Force. 
     Simultaneously, it is a State military force subject to call-
     up by the State Governor for duty not subject to Federal 
     control, such as emergency duty in cases of floods or riots. 
     National Guard members may perform service under either 
     Federal or State authority, but only Federal National Guard 
     service is covered by USERRA.
       (a) National Guard service under Federal authority is 
     protected by USERRA. Service under Federal authority includes 
     active duty performed under Title 10 of the United States 
     Code. Service under Federal authority also includes duty 
     under Title 32 of the United States Code, such as active duty 
     for training, inactive duty training, or full-time National 
     Guard duty.
       (b) National Guard service under authority of State law is 
     not protected by USERRA. However, many States have laws 
     protecting the civilian job rights of National Guard members 
     who serve under State orders. Enforcement of those State laws 
     is not covered by USERRA or these regulations.
       Yes. Service in the commissioned corps of the Public Health 
     Service (PHS) is ``service in the uniformed services'' under 
     USERRA.
       Yes. In time of war or national emergency, the President 
     has authority to designate any category of persons as a 
     ``uniformed service'' for purposes of USERRA. If the 
     President exercises this authority, service as a member of 
     that category of persons would be ``service in the uniformed 
     services'' under USERRA.
       Yes. Attending a military service academy is considered 
     uniformed service for purposes of USERRA. There are four 
     service academies: The United States Military Academy (West 
     Point, New York), the United States Naval Academy (Annapolis, 
     Maryland), the United States Air Force Academy (Colorado 
     Springs, Colorado), and the United States Coast Guard Academy 
     (New London, Connecticut).
       Yes, under certain conditions.
       (a) Membership in the Reserve Officers Training Corps 
     (ROTC) or the Junior ROTC is not ``service in the uniformed 
     services.'' However, some Reserve and National Guard enlisted 
     members use a college ROTC program as a means of qualifying 
     for commissioned officer status. National Guard and Reserve 
     members in an ROTC program may at times, while participating 
     in that program, be receiving active duty and inactive duty 
     training service credit with their unit. In these cases, 
     participating in ROTC training sessions is considered 
     ``service in the uniformed services,'' and qualifies a person 
     for protection under USERRA's reemployment and anti-
     discrimination provisions.
       (b) Typically, an individual in a College ROTC program 
     enters into an agreement with a particular military service 
     that obligates such individual to either complete the ROTC 
     program and accept a commission or, in case he or she does 
     not successfully complete the ROTC program, to serve as an 
     enlisted member. Although an individual does not qualify for 
     reemployment protection, except as specified in (a) above, he 
     or she is protected under USERRA's anti-discrimination 
     provisions because, as a result of the agreement, he or she 
     has applied to become a member of the uniformed services and 
     has incurred an obligation to perform future service.
       No. Although the Commissioned Corps of the National Oceanic 
     and Atmospheric Administration (NOAA) is a ``uniformed 
     service'' for some purposes, it is not included in USERRA's 
     definition of this term. Service in the Civil Air Patrol and 
     the Coast Guard Auxiliary similarly is not considered 
     ``service in the uniformed services'' for purposes of USERRA. 
     Consequently, service performed in the Commissioned Corps of 
     the National Oceanic and Atmospheric Administration (NOAA), 
     the Civil Air Patrol, and the Coast Guard Auxiliary is not 
     protected by USERRA.

ABSENCE FROM A POSITION OF EMPLOYMENT NECESSITATED BY REASON OF SERVICE 
                       IN THE UNIFORMED SERVICES

       No. If absence from a position of employment is 
     necessitated by service in the uniformed services, and the 
     employee otherwise meets the Act's eligibility requirements, 
     he or she has reemployment rights under USERRA, even if the 
     eligible employee uses the absence for other purposes as 
     well. An eligible employee is not required to leave the 
     employment position for the sole purpose of performing 
     service in the uniformed services, although such uniformed 
     service must be the main reason for departure from 
     employment. For example, if the eligible employee is required 
     to report to an out of state location for military training 
     and he or she spends off-duty time during that assignment 
     moonlighting as a security guard or visiting relatives who 
     live in that State, the eligible employee will not lose 
     reemployment rights simply because he or she used some of the 
     time away from the job to do something other than attend the 
     military training. Also, if an eligible employee receives 
     advance notification of a mobilization order, and leaves his 
     or her employment position in

[[Page H1835]]

     order to prepare for duty, but the mobilization is cancelled, 
     the employee will not lose any reemployment rights.
       No. At a minimum, an eligible employee must have enough 
     time after leaving the employment position to travel safely 
     to the uniformed service site and arrive fit to perform the 
     service. Depending on the specific circumstances, including 
     the duration of service, the amount of notice received, and 
     the location of the service, additional time to rest, or to 
     arrange affairs and report to duty, may be necessitated by 
     reason of service in the uniformed services. The following 
     examples help to explain the issue of the period of time 
     between leaving civilian employment and beginning service in 
     the uniformed services:
       (a) If the eligible employee performs a full overnight 
     shift for the civilian employer and travels directly from the 
     work site to perform a full day of uniformed service, the 
     eligible employee would not be considered fit to perform the 
     uniformed service. An absence from that work shift is 
     necessitated so that the eligible employee can report for 
     uniformed service fit for duty.
       (b) If the eligible employee is ordered to perform an 
     extended period of service in the uniformed services, he or 
     she may require a reasonable period of time off from the 
     civilian job to put his or her personal affairs in order, 
     before beginning the service. Taking such time off is also 
     necessitated by the uniformed service.
       (c) If the eligible employee leaves a position of 
     employment in order to enlist or otherwise perform service in 
     the uniformed services and, through no fault of his or her 
     own, the beginning date of the service is delayed, this delay 
     does not terminate any reemployment rights.
       (a) Yes. The eligible employee, or an appropriate officer 
     of the uniformed service in which his or her service is to be 
     performed, must notify the employing office that the employee 
     intends to leave the employment position to perform service 
     in the uniformed services, with certain exceptions described 
     below. In cases in which an eligible employee is employed by 
     more than one employing office, the employee, or an 
     appropriate officer of the uniformed service in which his or 
     her service is to be performed, must notify each employing 
     office that the employee intends to leave the employment 
     position to perform service in the uniformed services, with 
     certain exceptions described below.
       (b) The Department of Defense USERRA regulations at 32 CFR 
     104.3 provide that an ``appropriate officer'' can give notice 
     on the eligible employee's behalf. An ``appropriate officer'' 
     is a commissioned, warrant, or non-commissioned officer 
     authorized to give such notice by the military service 
     concerned.
       (c) The eligible employee's notice to the employing office 
     may be either oral or written. The notice may be informal and 
     does not need to follow any particular format.
       (d) Although USERRA does not specify how far in advance 
     notice must be given to the employing office, an eligible 
     employee should provide notice as far in advance as is 
     reasonable under the circumstances. In regulations 
     promulgated by the Department of Defense under USERRA, 32 CFR 
     104.6(a)(2)(i)(B), the Defense Department ``strongly 
     recommends that advance notice to civilian employers be 
     provided at least 30 days prior to departure for uniformed 
     service when it is feasible to do so.''
       The eligible employee is required to give advance notice of 
     pending service unless giving such notice is prevented by 
     military necessity, or is otherwise impossible or 
     unreasonable under all the circumstances.
       (a) Only a designated authority can make a determination of 
     ``military necessity,'' and such a determination is not 
     subject to judicial review. Guidelines for defining 
     ``military necessity'' appear in regulations issued by the 
     Department of Defense at 32 CFR 104.3. In general, these 
     regulations cover situations where a mission, operation, 
     exercise or requirement is classified, or could be 
     compromised or otherwise adversely affected by public 
     knowledge. In certain cases, the Secretary of Homeland 
     Security, in consultation with the Secretary of Defense, can 
     make a determination that giving of notice by intermittent 
     disaster-response appointees of the National Disaster Medical 
     System is precluded by ``military necessity.'' See 42 U.S.C. 
     300hh-11(d)(3)(B).
       (b) It may be impossible or unreasonable to give advance 
     notice under certain circumstances. Such circumstances may 
     include the unavailability of the eligible employee's 
     employing office or the employing office's representative, or 
     a requirement that the eligible employee report for uniformed 
     service in an extremely short period of time.
       No. The eligible employee is not required to ask for or get 
     the employing office's permission to leave to perform service 
     in the uniformed services. The eligible employee is only 
     required to give the employing office notice of pending 
     service.
       No. When the eligible employee leaves the employment 
     position to begin a period of service, he or she is not 
     required to tell the employing office that he or she intends 
     to seek reemployment after completing uniformed service. Even 
     if the eligible employee tells the employing office before 
     entering or completing uniformed service that he or she does 
     not intend to seek reemployment after completing the 
     uniformed service, the employee does not forfeit the right to 
     reemployment after completing service. The eligible employee 
     is not required to decide in advance of leaving the position 
     with the employing office, whether he or she will seek 
     reemployment after completing uniformed service.

                           Period of Service

       Yes. In general, the eligible employee may perform service 
     in the uniformed services for a cumulative period of up to 
     five (5) years and retain reemployment rights with the 
     employing office. The exceptions to this rule are described 
     below.
       No. The five-year period includes only the time the 
     eligible employee spends actually performing service in the 
     uniformed services. A period of absence from employment 
     before or after performing service in the uniformed services 
     does not count against the five-year limit. For example, 
     after the eligible employee completes a period of service in 
     the uniformed services, he or she is provided a certain 
     amount of time, depending upon the length of service, to 
     report back to work or submit an application for 
     reemployment. The period between completing the uniformed 
     service and reporting back to work or seeking reemployment 
     does not count against the five-year limit.
       No. An eligible employee is entitled to a leave of absence 
     for uniformed service for up to five years with each 
     employing office for whom he or she works or has worked. When 
     the eligible employee takes a position with a new employing 
     office, the five-year period begins again regardless of how 
     much service he or she performed while working in any 
     previous employment relationship. If an eligible employee is 
     employed by more than one employing office, a separate five-
     year period runs as to each employing office independently, 
     even if those employing offices share or co-determine the 
     employee's terms and conditions of employment. For example, 
     an eligible employee of the legislative branch may work part-
     time for two employing offices. In this case, a separate 
     five-year period would run as to the eligible employee's 
     employment with each respective employing office.
       It depends. Under the CAA, USERRA provides reemployment 
     rights to which an eligible employee may become entitled 
     beginning on or after January 23, 1996, but any uniformed 
     service performed before January 23, 1996, that was counted 
     against the service limitations of the previous law (the 
     Veterans Reemployment Rights Act), also counts against 
     USERRA's five-year limit.
       (a) USERRA creates the following exceptions to the five-
     year limit on service in the uniformed services:
       (1) Service that is required beyond five years to complete 
     an initial period of obligated service. Some military 
     specialties require an individual to serve more than five 
     years because of the amount of time or expense involved in 
     training. If the eligible employee works in one of those 
     specialties, he or she has reemployment rights when the 
     initial period of obligated service is completed;
       (2) If the eligible employee was unable to obtain orders 
     releasing him or her from service in the uniformed services 
     before the expiration of the five-year period, and the 
     inability was not the employee's fault;
       (3)(i) Service performed to fulfill periodic National Guard 
     and Reserve training requirements as prescribed by 10 U.S.C. 
     10147 and 32 U.S.C. 502(a) and 503; and,
       (ii) Service performed to fulfill additional training 
     requirements determined and certified by a proper military 
     authority as necessary for the eligible employee's 
     professional development, or to complete skill training or 
     retraining;

[[Page H1836]]

       (4) Service performed in a uniformed service if he or she 
     was ordered to or retained on active duty under:
       (i) 10 U.S.C. 688 (involuntary active duty by a military 
     retiree);
       (ii) 10 U.S.C. 12301(a) (involuntary active duty in 
     wartime);
       (iii) 10 U.S.C. 12301(g) (retention on active duty while in 
     captive status);
       (iv) 10 U.S.C. 12302 (involuntary active duty during a 
     national emergency for up to 24 months);
       (v) 10 U.S.C. 12304 (involuntary active duty for an 
     operational mission for up to 270 days);
       (vi) 10 U.S.C. 12305 (involuntary retention on active duty 
     of a critical person during time of crisis or other specific 
     conditions);
       (vii) 14 U.S.C. 331 (involuntary active duty by retired 
     Coast Guard officer);
       (viii) 14 U.S.C. 332 (voluntary active duty by retired 
     Coast Guard officer);
       (ix) 14 U.S.C. 359 (involuntary active duty by retired 
     Coast Guard enlisted member);
       (x) 14 U.S.C. 360 (voluntary active duty by retired Coast 
     Guard enlisted member);
       (xi) 14 U.S.C. 367 (involuntary retention of Coast Guard 
     enlisted member on active duty); and
       (xii) 14 U.S.C. 712 (involuntary active duty by Coast Guard 
     Reserve member for natural or man-made disasters)
       (5) Service performed in a uniformed service if the 
     eligible employee was ordered to or retained on active duty 
     (other than for training) under any provision of law because 
     of a war or national emergency declared by the President or 
     the Congress, as determined by the Secretary concerned;
       (6) Service performed in a uniformed service if the 
     eligible employee was ordered to active duty (other than for 
     training) in support of an operational mission for which 
     personnel have been ordered to active duty under 10 U.S.C. 
     12304, as determined by a proper military authority;
       (7) Service performed in a uniformed service if the 
     eligible employee was ordered to active duty in support of a 
     critical mission or requirement of the uniformed services as 
     determined by the Secretary concerned; and,
       (8) Service performed as a member of the National Guard if 
     the eligible employee was called to respond to an invasion, 
     danger of invasion, rebellion, danger of rebellion, 
     insurrection, or the inability of the President with regular 
     forces to execute the laws of the United States.
       (b) Service performed in a uniformed service to mitigate 
     economic harm where the eligible employee's employing office 
     is in violation of its employment or reemployment obligations 
     to him or her.
       No. The eligible employee is not required to accommodate 
     his or her employing office's interests or concerns regarding 
     the timing, frequency, or duration of uniformed service. The 
     employing office cannot refuse to reemploy the eligible 
     employee because it believes that the timing, frequency or 
     duration of the service is unreasonable. However, the 
     employing office is permitted to bring its concerns over the 
     timing, frequency, or duration of the eligible employee's 
     service to the attention of the appropriate military 
     authority. Regulations issued by the Department of Defense at 
     32 CFR 104.4 direct military authorities to provide 
     assistance to an employer in addressing these types of 
     employment issues. The military authorities are required to 
     consider requests from employers of National Guard and 
     Reserve members to adjust scheduled absences from civilian 
     employment to perform service.

                       Application for Employment

       Yes. Upon completing service in the uniformed services, the 
     eligible employee must notify the pre-service employing 
     office of his or her intent to return to the employment 
     position by either reporting to work or submitting a timely 
     application for reemployment. Whether the eligible employee 
     is required to report to work or submit a timely application 
     for reemployment depends upon the length of service, as 
     follows:
       (a) Period of service less than 31 days or for a period of 
     any length for the purpose of a fitness examination. If the 
     period of service in the uniformed services was less than 31 
     days, or the eligible employee was absent from a position of 
     employment for a period of any length for the purpose of an 
     examination to determine his or her fitness to perform 
     service, the eligible employee must report back to the 
     employing office not later than the beginning of the first 
     full regularly-scheduled work period on the first full 
     calendar day following the completion of the period of 
     service, and the expiration of eight hours after a period 
     allowing for safe transportation from the place of that 
     service to the eligible employee's residence. For example, if 
     the eligible employee completes a period of service and 
     travel home, arriving at ten o'clock in the evening, he or 
     she cannot be required to report to the employing office 
     until the beginning of the next full regularly-scheduled work 
     period that begins at least eight hours after arriving home, 
     i.e., no earlier than six o'clock the next morning. If it is 
     impossible or unreasonable for the eligible employee to 
     report within such time period through no fault of his or her 
     own, he or she must report to the employing office as soon as 
     possible after the expiration of the eight-hour period.
       (b) Period of service more than 30 days but less than 181 
     days. If the eligible employee's period of service in the 
     uniformed services was for more than 30 days but less than 
     181 days, he or she must submit an application for 
     reemployment (written or oral) with the employing office not 
     later than 14 days after completing service. If it is 
     impossible or unreasonable for the eligible employee to apply 
     within 14 days through no fault of his or her own, he or she 
     must submit the application not later than the next full 
     calendar day after it becomes possible to do so.
       (c) Period of service more than 180 days. If the eligible 
     employee's period of service in the uniformed services was 
     for more than 180 days, he or she must submit an application 
     for reemployment (written or oral) not later than 90 days 
     after completing service.
       Yes. If the eligible employee is hospitalized for, or 
     convalescing from, an illness or injury incurred in, or 
     aggravated during, the performance of service, he or she must 
     report to or submit an application for reemployment to the 
     employing office at the end of the period necessary for 
     recovering from the illness or injury. This period may not 
     exceed two years from the date of the completion of service, 
     except that it must be extended by the minimum time necessary 
     to accommodate circumstances beyond the eligible employee's 
     control that make reporting within the period impossible or 
     unreasonable. This period for recuperation and recovery 
     extends the time period for reporting to or submitting an 
     application for reemployment to the employing office, and is 
     not applicable following reemployment.
       (a) If the eligible employee fails to timely report for or 
     apply for reemployment, he or she does not automatically 
     forfeit entitlement to USERRA's reemployment and other rights 
     and benefits. However, the eligible employee does become 
     subject to any conduct rules, established policy, and general 
     practices of the employing office pertaining to an absence 
     from scheduled work.
       (b) If reporting or submitting an employment application to 
     the employing office is impossible or unreasonable through no 
     fault of the eligible employee, he or she may report to the 
     employing office as soon as possible (in the case of a period 
     of service less than 31 days) or submit an application for 
     reemployment to the employing office by the next full 
     calendar day after it becomes possible to do so (in the case 
     of a period of service from 31 to 180 days), and the eligible 
     employee will be considered to have timely reported or 
     applied for reemployment.
       An application for reemployment need not follow any 
     particular format. The eligible employee may apply orally or 
     in writing. The application should indicate that the employee 
     is a former employee returning from service in the uniformed 
     services and that he or she seeks reemployment with the pre-
     service employing office. The eligible employee is permitted 
     but not required to identify a particular reemployment 
     position in which he or she is interested.
       The application must be submitted to the pre-service 
     employing office or to an agent or representative of the 
     employing office who has apparent responsibility for 
     receiving employment applications. Depending upon the 
     circumstances, such a person could be a personnel or human 
     resources officer, or a first-line supervisor.
       No. The eligible employee has reemployment rights with the 
     pre-service employing office provided that he or she makes a 
     timely reemployment application to that employing office. The 
     eligible employee may seek or obtain employment with an 
     employer other than the pre-service employing office during 
     the period of time within which a reemployment application 
     must be made, without giving up reemployment rights with the 
     pre-service employing office. However, such alternative 
     employment during the application period should not be of a 
     type that would constitute a cause for the employing office 
     to discipline or terminate the employee following 
     reemployment. For instance, if the employing office forbids 
     outside employment, violation of such a policy may constitute 
     a cause for discipline or even termination.

[[Page H1837]]


       Yes, if the period of service exceeded 30 days and if 
     requested by the employing office to do so. If the eligible 
     employee submits an application for reemployment after a 
     period of service of more than 30 days, he or she must, upon 
     the request of the employing office, provide documentation to 
     establish that:
       (a) The reemployment application is timely;
       (b) The eligible employee has not exceeded the five-year 
     limit on the duration of service (subject to the exceptions 
     listed at section 1002.103); and,
       (c) The eligible employee's separation or dismissal from 
     service was not disqualifying.
       Yes. The employing office is not permitted to delay or deny 
     reemployment by demanding documentation that does not exist 
     or is not readily available. The eligible employee is not 
     liable for administrative delays in the issuance of military 
     documentation. If the eligible employee is re-employed after 
     an absence from employment for more than 90 days, the 
     employing office may require that he or she submit the 
     documentation establishing entitlement to reemployment before 
     treating the employee as not having had a break in service 
     for pension purposes. If the documentation is received after 
     reemployment and it shows that the eligible employee is not 
     entitled to reemployment, the employing office may terminate 
     employment and any rights or benefits that the employee may 
     have been granted.
       (a) Documents that satisfy the requirements of USERRA 
     include the following:
       (1) DD (Department of Defense) 214 Certificate of Release 
     or Discharge from Active Duty;
       (2) Copy of duty orders prepared by the facility where the 
     orders were fulfilled carrying an endorsement indicating 
     completion of the described service;
       (3) Letter from the commanding officer of a Personnel 
     Support Activity or someone of comparable authority;
       (4) Certificate of completion from military training 
     school;
       (5) Discharge certificate showing character of service; 
     and,
       (6) Copy of extracts from payroll documents showing periods 
     of service;
       (7) Letter from NDMS Team Leader or Administrative Officer 
     verifying dates and times of NDMS training or Federal 
     activation.
       (b) The types of documents that are necessary to establish 
     eligibility for reemployment will vary from case to case. Not 
     all of these documents are available or necessary in every 
     instance to establish reemployment eligibility.

                          Character of Service

       USERRA does not require any particular form of discharge or 
     separation from service. However, even if the employee is 
     otherwise eligible for reemployment, he or she will be 
     disqualified if the characterization of service falls within 
     one of four categories. USERRA requires that the employee not 
     have received one of these types of discharge.
       Reemployment rights are terminated if the employee is:
       (a) Separated from uniformed service with a dishonorable or 
     bad conduct discharge;
       (b) Separated from uniformed service under other than 
     honorable conditions, as characterized by regulations of the 
     uniformed service;
       (c) A commissioned officer dismissed as permitted under 10 
     U.S.C. 1161(a) by sentence of a general court-martial; in 
     commutation of a sentence of a general court-martial; or, in 
     time of war, by order of the President; or,
       (d) A commissioned officer dropped from the rolls under 10 
     U.S.C. 1161(b) due to absence without authority for at least 
     three months; separation by reason of a sentence to 
     confinement adjudged by a court-martial; or, a sentence to 
     confinement in a Federal or State penitentiary or 
     correctional institution.
       The branch of service in which the employee performs the 
     tour of duty determines the characterization of service.
       Yes. A military review board has the authority to 
     prospectively or retroactively upgrade a disqualifying 
     discharge or release. A retroactive upgrade would restore 
     reemployment rights providing the employee otherwise meets 
     the Act's eligibility criteria.
       No. A retroactive upgrade allows the employee to obtain 
     reinstatement with the former employing office, provided the 
     employee otherwise meets the Act's eligibility criteria. Back 
     pay and other benefits such as pension plan credits 
     attributable to the time period between discharge and the 
     retroactive upgrade are not required to be restored by the 
     employing office in this situation.

                      Employer Statutory Defenses

       (a) Even if the employee is otherwise eligible for 
     reemployment benefits, the employing office is not required 
     to reemploy him or her if the employing office establishes 
     that its circumstances have so changed as to make 
     reemployment impossible or unreasonable. For example, an 
     employing office may be excused from re-employing the 
     eligible employee where there has been an intervening 
     reduction in force that would have included that employee. 
     The employing office may not, however, refuse to reemploy the 
     eligible employee on the basis that another employee was 
     hired to fill the reemployment position during the employee's 
     absence, even if reemployment might require the termination 
     of that replacement employee;
       (b) Even if the employee is otherwise eligible for 
     reemployment benefits, the employing office is not required 
     to reemploy him or her if it establishes that assisting the 
     eligible employee in becoming qualified for reemployment 
     would impose an undue hardship, as defined in section 
     1002.5(s) and discussed in section 1002.198, on the employing 
     office; or,
       (c) Even if the employee is otherwise eligible for 
     reemployment benefits, the employing office is not required 
     to reemploy him or her if it establishes that the employment 
     position vacated by the eligible employee in order to perform 
     service in the uniformed services was for a brief, 
     nonrecurrent period and there was no reasonable expectation 
     that the employment would continue indefinitely or for a 
     significant period.
       (d) The employing office defenses included in this section 
     are affirmative ones, and the employing office carries the 
     burden to prove by a preponderance of the evidence that any 
     one or more of these defenses is applicable.

  Subpart D: Rights, Benefits, and Obligations of Persons Absent from 
          Employment Due to Service in the Uniformed Services

                     Furlough and Leave of Absence

                          Health Plan Coverage

[[Page H1838]]



                     Furlough and Leave of Absence

       During a period of service in the uniformed services, the 
     eligible employee is deemed to be on leave of absence from 
     the employing office. In this status, the eligible employee 
     is entitled to the non-seniority rights and benefits 
     generally provided by the employing office to other employees 
     with similar seniority, status, and pay that are on leave of 
     absence. Entitlement to these non-seniority rights and 
     benefits is not dependent on how the employing office 
     characterizes the eligible employee's status during a period 
     of service. For example, if the employing office 
     characterizes the employee as ``terminated'' during the 
     period of uniformed service, this characterization cannot be 
     used to avoid USERRA's requirement that the employee be 
     deemed on leave of absence, and therefore, entitled to the 
     non-seniority rights and benefits generally provided to 
     employees on leave of absence.
       (a) The non-seniority rights and benefits to which an 
     eligible employee is entitled during a period of service are 
     those that the employing office provides to similarly 
     situated employees by an agreement, policy, practice, or plan 
     in effect at the employee's workplace. These rights and 
     benefits include those in effect at the beginning of the 
     eligible employee's employment and those established after 
     employment began. They also include those rights and benefits 
     that become effective during the eligible employee's period 
     of service and that are provided to similarly situated 
     employees on leave of absence.
       (b) If the non-seniority benefits to which employees on 
     leave of absence are entitled vary according to the type of 
     leave, the eligible employee must be given the most favorable 
     treatment accorded to any comparable form of leave when he or 
     she performs service in the uniformed services. In order to 
     determine whether any two types of leave are comparable, the 
     duration of the leave may be the most significant factor to 
     compare. For instance, a two-day funeral leave will not be 
     ``comparable'' to an extended leave for service in the 
     uniformed service. In addition to comparing the duration of 
     the absences, other factors such as the purpose of the leave 
     and the ability of the employee to choose when to take the 
     leave should also be considered.
       (c) As a general matter, accrual of vacation leave is 
     considered to be a non-seniority benefit that must be 
     provided by an employing office to an eligible employee on a 
     military leave of absence only if the employing office 
     provides that benefit to similarly situated employees on 
     comparable leaves of absence.
       (d) Nothing in this section gives the eligible employee 
     rights or benefits to which the employee otherwise would not 
     be entitled if the employee had remained continuously 
     employed with the employing office.
       Yes. If the employing office provides additional benefits 
     such as full or partial pay when the eligible employee 
     performs service, the employing office is not excused from 
     providing other rights and benefits to which the employee is 
     entitled under the Act.
       If employment is interrupted by a period of service in the 
     uniformed services and the eligible employee knowingly 
     provides written notice of intent not to return to the 
     position of employment after service in the uniformed 
     services, he or she is not entitled to those non-seniority 
     rights and benefits. The eligible employee's written notice 
     does not waive entitlement to any other rights to which he or 
     she is entitled under the Act, including the right to 
     reemployment after service.
       (a) If employment is interrupted by a period of service, 
     the eligible employee must be permitted upon request to use 
     any accrued vacation, annual, or similar leave with pay 
     during the period of service, in order to continue his or her 
     civilian pay. However, the eligible employee is not entitled 
     to use sick leave that accrued with the employing office 
     during a period of service in the uniformed services, unless 
     the employing office allows employees to use sick leave for 
     any reason, or allows other similarly situated employees on 
     comparable furlough or leave of absence to use accrued paid 
     sick leave. Sick leave is usually not comparable to annual or 
     vacation leave; it is generally intended to provide income 
     when the employee or a family member is ill and the employee 
     is unable to work.
       (b) The employing office may not require the eligible 
     employee to use accrued vacation, annual, or similar leave 
     during a period of service in the uniformed services.

                          Health Plan Coverage

       (a) USERRA defines a health plan to include an insurance 
     policy or contract, medical or hospital service agreement, 
     membership or subscription contract, or arrangement under 
     which the employee's health services are provided or the 
     expenses of those services are paid.
       (b) USERRA covers group health plans as defined in the 
     Employee Retirement Income Security Act of 1974 (ERISA) at 29 
     U.S.C. 1191b(a). USERRA applies to group health plans that 
     are subject to ERISA, and plans that are not subject to 
     ERISA, such as those sponsored by the Federal Government.
       (c) USERRA covers multi-employer plans maintained pursuant 
     to one or more collective bargaining agreements between 
     employers and employee organizations. USERRA applies to 
     multi-employer plans as they are defined in ERISA at 29 
     U.S.C. 1002(37). USERRA contains provisions that apply 
     specifically to multi-employer plans in certain situations.
       If the eligible employee has coverage under a health plan 
     in connection with his or her employment, the plan must 
     permit the employee to elect to continue the coverage for a 
     certain period of time as described below:
       (a) When the eligible employee is performing service in the 
     uniformed services, he or she is entitled to continuing 
     coverage for himself or herself (and dependents if the plan 
     offers dependent coverage) under a health plan provided in 
     connection with the employment. The plan must allow the 
     eligible employee to elect to continue coverage for a period 
     of time that is the lesser of:
       (1) The 24-month period beginning on the date on which the 
     eligible employee's absence for the purpose of performing 
     service begins; or,
       (2) The period beginning on the date on which the eligible 
     employee's absence for the purpose of performing service 
     begins, and ending on the date on which he or she fails to 
     return from service or apply for a position of employment as 
     provided under sections 1002.115-123 of these regulations.
       (b) USERRA does not require the employing office to 
     establish a health plan if there is no health plan coverage 
     in connection with the employment, or, where there is a plan, 
     to provide any particular type of coverage.
       (c) USERRA does not require the employing office to permit 
     the eligible employee to initiate new health plan coverage at 
     the beginning of a period of service if he or she did not 
     previously have such coverage.
       USERRA does not specify requirements for electing 
     continuing coverage. Health plan administrators may develop 
     reasonable requirements addressing how continuing coverage 
     may be elected, consistent with the terms of the plan and the 
     Act's exceptions to the requirement that the employee give 
     advance notice of service in the uniformed services. For 
     example, the eligible employee cannot be precluded from 
     electing continuing health plan coverage under circumstances 
     where it is impossible or unreasonable for him or her to make 
     a timely election of coverage.
       (a) If the eligible employee performs service in the 
     uniformed service for fewer than 31 days, he or she cannot be 
     required to pay more than the regular employee share, if any, 
     for health plan coverage.
       (b) If the eligible employee performs service in the 
     uniformed service for 31 or more days, he or she may be 
     required to pay no more than 102% of the full premium under 
     the plan, which represents the employing office's share plus 
     the employee's share, plus 2% for administrative costs.
       (c) USERRA does not specify requirements for methods of 
     paying for continuing coverage. Health plan administrators 
     may develop reasonable procedures for payment, consistent 
     with the terms of the plan.
       The actions a plan administrator may take regarding the 
     provision or cancellation of an eligible employee's 
     continuing coverage depend on whether the employee is excused 
     from the requirement to give advance notice, whether the plan 
     has established reasonable rules for election of continuation 
     coverage, and whether the plan has established reasonable 
     rules for the payment for continuation coverage.

[[Page H1839]]

       (a) No notice of service and no election of continuation 
     coverage: If an employing office provides employment-based 
     health coverage to an eligible employee who leaves employment 
     for uniformed service without giving advance notice of 
     service, the plan administrator may cancel the employee's 
     health plan coverage upon the employee's departure from 
     employment for uniformed service. However, in cases in which 
     an eligible employee's failure to give advance notice of 
     service was excused under the statute because it was 
     impossible, unreasonable, or precluded by military necessity, 
     the plan administrator must reinstate the employee's health 
     coverage retroactively upon his or her election to continue 
     coverage and payment of all unpaid amounts due, and the 
     employee must incur no administrative reinstatement costs. In 
     order to qualify for an exception to the requirement of 
     timely election of continuing health care, an eligible 
     employee must first be excused from giving notice of service 
     under the statute.
       (b) Notice of service but no election of continuing 
     coverage: Plan administrators may develop reasonable 
     requirements addressing how continuing coverage may be 
     elected. Where health plans are also covered under the 
     Consolidated Omnibus Budget Reconciliation Act of 1985, 26 
     U.S.C. 4980B (COBRA), it may be reasonable for a health plan 
     administrator to adopt COBRA-compliant rules regarding 
     election of continuing coverage, as long as those rules do 
     not conflict with any provision of USERRA or this rule. If an 
     employing office provides employment-based health coverage to 
     an eligible employee who leaves employment for uniformed 
     service for a period of service in excess of 30 days after 
     having given advance notice of service but without making an 
     election regarding continuing coverage, the plan 
     administrator may cancel the employee's health plan coverage 
     upon the employee's departure from employment for uniformed 
     service, but must reinstate coverage without the imposition 
     of administrative reinstatement costs under the following 
     conditions:
        (1) Plan administrators who have developed reasonable 
     rules regarding the period within which an employee may elect 
     continuing coverage must permit retroactive reinstatement of 
     uninterrupted coverage to the date of departure if the 
     eligible employee elects continuing coverage and pays all 
     unpaid amounts due within the periods established by the 
     plan;
       (2) In cases in which plan administrators have not 
     developed rules regarding the period within which an employee 
     may elect continuing coverage, the plan must permit 
     retroactive reinstatement of uninterrupted coverage to the 
     date of departure upon the eligible employee's election and 
     payment of all unpaid amounts at any time during the period 
     established in section 1002.164(a).
       (c) Election of continuation coverage without timely 
     payment: Health plan administrators may adopt reasonable 
     rules allowing cancellation of coverage if timely payment is 
     not made. Where health plans are covered under COBRA, it may 
     be reasonable for a health plan administrator to adopt COBRA-
     compliant rules regarding payment for continuing coverage, as 
     long as those rules do not conflict with any provision of 
     USERRA or this rule.
       (a) If health plan coverage for the eligible employee or a 
     dependent was terminated by reason of service in the 
     uniformed services, that coverage must be reinstated upon 
     reemployment. An exclusion or waiting period may not be 
     imposed in connection with the reinstatement of coverage upon 
     reemployment, if an exclusion or waiting period would not 
     have been imposed had coverage not been terminated by reason 
     of such service.
       (b) USERRA permits a health plan to impose an exclusion or 
     waiting period as to illnesses or injuries determined by the 
     Secretary of Veterans Affairs to have been incurred in, or 
     aggravated during, performance of service in the uniformed 
     services. The determination that the employee's illness or 
     injury was incurred in, or aggravated during, the performance 
     of service may only be made by the Secretary of Veterans 
     Affairs or his or her representative. Other coverage, for 
     injuries or illnesses that are not service-related (or for 
     the employee's dependents, if he or she has dependent 
     coverage), must be reinstated subject to paragraph (a) of 
     this section.
       USERRA requires the employing office to reinstate or direct 
     the reinstatement of health plan coverage upon request at 
     reemployment. USERRA permits but does not require the 
     employing office to allow the employee to delay reinstatement 
     of health plan coverage until a date that is later than the 
     date of reemployment.
       Liability under a multi-employer plan for employer 
     contributions and benefits in connection with USERRA's health 
     plan provisions must be allocated either as the plan sponsor 
     provides, or, if the sponsor does not provide, to the 
     eligible employee's last employer before his or her service. 
     If the last employer is no longer functional, liability for 
     continuing coverage is allocated to the health plan.
       (a) Some employees receive health plan benefits provided 
     pursuant to a multi-employer plan that utilizes a health 
     benefits account system in which an employee accumulates 
     prospective health benefit eligibility, also commonly 
     referred to as ``dollar bank,'' ``credit bank,'' and ``hour 
     bank'' plans. In such cases, where an employee with a 
     positive health benefits account balance elects to continue 
     the coverage, the employee may further elect either option 
     below:
       (1) The eligible employee may expend his or her health 
     account balance during an absence from employment due to 
     service in the uniformed services in lieu of paying for the 
     continuation of coverage as set out in section 1002.166. If 
     an eligible employee's health account balance becomes 
     depleted during the applicable period provided for in section 
     1002.164(a), the employee must be permitted, at his or her 
     option, to continue coverage pursuant to section 1002.166. 
     Upon reemployment, the plan must provide for immediate 
     reinstatement of the eligible employee as required by section 
     1002.168, but may require the employee to pay the cost of the 
     coverage until the employee earns the credits necessary to 
     sustain continued coverage in the plan.
       (2) The eligible employee may pay for continuation coverage 
     as set out in section 1002.166, in order to maintain intact 
     his or her account balance as of the beginning date of the 
     absence from employment due to service in the uniformed 
     services. This option permits the eligible employee to resume 
     usage of the account balance upon reemployment.
       (b) Employers or plan administrators providing such plans 
     should counsel employees of their options set out in this 
     subsection.

                          Prompt Reemployment

                         Reemployment Position

                     Seniority Rights and Benefits

                           Disabled Employees

                              Rate of Pay

                      Protection Against Discharge

                         Pension Plan Benefits

[[Page H1840]]



                          Prompt Reemployment

       The employing office must promptly reemploy the employee 
     when he or she returns from a period of service if the 
     employee meets the Act's eligibility criteria as described in 
     Subpart C of these regulations.
       ``Prompt reemployment'' means as soon as practicable under 
     the circumstances of each case. Absent unusual circumstances, 
     reemployment must occur within two weeks of the eligible 
     employee's application for reemployment. For example, prompt 
     reinstatement after a weekend National Guard duty generally 
     means the next regularly scheduled working day. On the other 
     hand, prompt reinstatement following several years of active 
     duty may require more time, because the employing office may 
     have to reassign or give notice to another employee who 
     occupied the returning employee's position.

                         Reemployment Position

       As a general rule, the eligible employee is entitled to 
     reemployment in the job position that he or she would have 
     attained with reasonable certainty if not for the absence due 
     to uniformed service. This position is known as the escalator 
     position. The principle behind the escalator position is 
     that, if not for the period of uniformed service, the 
     eligible employee could have been promoted (or, 
     alternatively, demoted, transferred, or laid off) due to 
     intervening events. The escalator principle requires that the 
     eligible employee be reemployed in a position that reflects 
     with reasonable certainty the pay, benefits, seniority, and 
     other job perquisites, that he or she would have attained if 
     not for the period of service. Depending upon the specific 
     circumstances, the employing office may have the option, or 
     be required, to reemploy the eligible employee in a position 
     other than the escalator position.
       In all cases, the starting point for determining the proper 
     reemployment position is the escalator position, which is the 
     job position that the eligible employee would have attained 
     if his or her continuous employment had not been interrupted 
     due to uniformed service. Once this position is determined, 
     the employing office may have to consider several factors 
     before determining the appropriate reemployment position in 
     any particular case. Such factors may include the eligible 
     employee's length of service, qualifications, and disability, 
     if any. The actual reemployment position may be either the 
     escalator position; the pre-service position; a position 
     comparable to the escalator or pre-service position; or, the 
     nearest approximation to one of these positions.
       (a) Yes. The reemployment position includes the seniority, 
     status, and rate of pay that an eligible employee would 
     ordinarily have attained in that position given his or her 
     job history, including prospects for future earnings and 
     advancement. The employing office must determine the 
     seniority rights, status, and rate of pay as though the 
     eligible employee had been continuously employed during the 
     period of service. The seniority rights, status, and pay of 
     an employment position include those established (or changed) 
     by a collective bargaining agreement, employer policy, or 
     employment practice. The sources of seniority rights, status, 
     and pay include agreements, policies, and practices in effect 
     at the beginning of the eligible employee's service, and any 
     changes that may have occurred during the period of service. 
     In particular, the eligible employee's status in the 
     reemployment position could include opportunities for 
     advancement, general working conditions, job location, shift 
     assignment, rank, responsibility, and geographical location.
       (b) If an opportunity for promotion, or eligibility for 
     promotion, that the eligible employee missed during service 
     is based on a skills test or examination, then the employing 
     office should give him or her a reasonable amount of time to 
     adjust to the employment position and then give a skills test 
     or examination. No fixed amount of time for permitting 
     adjustment to reemployment will be deemed reasonable in all 
     cases. However, in determining a reasonable amount of time to 
     permit an eligible employee to adjust to reemployment before 
     scheduling a makeup test or examination, an employing office 
     may take into account a variety of factors, including but not 
     limited to the length of time the returning employee was 
     absent from work, the level of difficulty of the test itself, 
     the typical time necessary to prepare or study for the test, 
     the duties and responsibilities of the reemployment position 
     and the promotional position, and the nature and 
     responsibilities of the service member while serving in the 
     uniformed service. If the eligible employee is successful on 
     the makeup exam and, based on the results of that exam, there 
     is a reasonable certainty that he or she would have been 
     promoted, or made eligible for promotion, during the time 
     that the employee served in the uniformed service, then the 
     promotion or eligibility for promotion must be made effective 
     as of the date it would have occurred had employment not been 
     interrupted by uniformed service.
       Yes. The Act does not prohibit lawful adverse job 
     consequences that result from the eligible employee's 
     restoration on the seniority ladder. Depending on the 
     circumstances, the escalator principle may cause an eligible 
     employee to be reemployed in a higher or lower position, laid 
     off, or even terminated. For example, if an eligible 
     employee's seniority or job classification would have 
     resulted in the employee being laid off during the period of 
     service, and the layoff continued after the date of 
     reemployment, reemployment would reinstate the employee to 
     layoff status. Similarly, the status of the reemployment 
     position requires the employing office to assess what would 
     have happened to such factors as the eligible employee's 
     opportunities for advancement, working conditions, job 
     location, shift assignment, rank, responsibility, and 
     geographical location, if he or she had remained continuously 
     employed. The reemployment position may involve transfer to 
     another shift or location, more or less strenuous working 
     conditions, or changed opportunities for advancement, 
     depending upon the application of the escalator principle.
       Once the eligible employee's escalator position is 
     determined, other factors may allow, or require, the 
     employing office to reemploy the employee in a position other 
     than the escalator position. These factors, which are 
     explained in sections 1002.196 through 1002.199, are:
       (a) The length of the eligible employee's most recent 
     period of uniformed service;
       (b) The eligible employee's qualifications; and,
       (c) Whether the eligible employee has a disability incurred 
     or aggravated during uniformed service.
       Following a period of service in the uniformed services of 
     less than 91 days, the eligible employee must be reemployed 
     according to the following priority:
       (a) The eligible employee must be reemployed in the 
     escalator position. He or she must be qualified to perform 
     the duties of this position. The employing office must make 
     reasonable efforts to help the eligible employee become 
     qualified to perform the duties of this position.
     (b) If the eligible employee is not qualified to perform the 
     duties of the escalator position after reasonable efforts by 
     the employing office, the employee must be reemployed in the 
     position in which he or she was employed on the date that the 
     period of service began. The eligible employee must be 
     qualified to perform the duties of this position. The 
     employing office must make reasonable efforts to help the 
     eligible employee become qualified to perform the duties of 
     this position.
       (c) If the eligible employee is not qualified to perform 
     the duties of the escalator position or the pre-service 
     position, after reasonable efforts by the employing office, 
     he or she must be reemployed in any other position that is 
     the nearest approximation first to the escalator position and 
     then to the pre-service position. The eligible employee must 
     be qualified to perform the duties of this position. The 
     employing office must make reasonable efforts to help the 
     eligible employee become qualified to perform the duties of 
     this position.
       Following a period of service of more than 90 days, the 
     eligible employee must be reemployed according to the 
     following priority:
       (a) The eligible employee must be reemployed in the 
     escalator position or a position of like seniority, status, 
     and pay. He or she must be qualified to perform the duties of 
     this position. The employing office must make reasonable 
     efforts to help the eligible

[[Page H1841]]

     employee become qualified to perform the duties of this 
     position.
       (b) If the eligible employee is not qualified to perform 
     the duties of the escalator position or a like position after 
     reasonable efforts by the employing office, the employee must 
     be reemployed in the position in which he or she was employed 
     on the date that the period of service began or in a position 
     of like seniority, status, and pay. The eligible employee 
     must be qualified to perform the duties of this position. The 
     employing office must make reasonable efforts to help the 
     eligible employee become qualified to perform the duties of 
     this position.
       (c) If the eligible employee is not qualified to perform 
     the duties of the escalator position, the pre-service 
     position, or a like position, after reasonable efforts by the 
     employing office, he or she must be reemployed in any other 
     position that is the nearest approximation first to the 
     escalator position and then to the pre-service position. The 
     eligible employee must be qualified to perform the duties of 
     this position. The employing office must make reasonable 
     efforts to help the eligible employee become qualified to 
     perform the duties of this position.
       The eligible employee must be qualified for the 
     reemployment position. The employing office must make 
     reasonable efforts to help the eligible employee become 
     qualified to perform the duties of this position. The 
     employing office is not required to reemploy the eligible 
     employee on his or her return from service if he or she 
     cannot, after reasonable efforts by the employing office, 
     qualify for the appropriate reemployment position.
       (a)(1) ``Qualified'' means that the employee has the 
     ability to perform the essential tasks of the position. The 
     employee's inability to perform one or more non-essential 
     tasks of a position does not make him or her unqualified.
       (2) Whether a task is essential depends on several factors, 
     and these factors include but are not limited to:
       (i) The employing office's judgment as to which functions 
     are essential;
       (ii) Written job descriptions developed before the hiring 
     process begins;
       (iii) The amount of time on the job spent performing the 
     function;
       (iv) The consequences of not requiring the individual to 
     perform the function;
       (v) The terms of a collective bargaining agreement;
       (vi) The work experience of past incumbents in the job; 
     and/or
       (vii) The current work experience of incumbents in similar 
     jobs.
       (b) Only after the employing office makes reasonable 
     efforts, as defined in section 1002.5(p), may it determine 
     that the otherwise eligible employee is not qualified for the 
     reemployment position. These reasonable efforts must be made 
     at no cost to the employee.
       If two or more eligible employees are entitled to 
     reemployment in the same position and more than one employee 
     has reported or applied for employment in that position, the 
     employee who first left the position for uniformed service 
     has the first priority on reemployment in that position. The 
     remaining employee (or employees) is entitled to be 
     reemployed in a position similar to that in which the 
     employee would have been re-employed according to the rules 
     that normally determine a reemployment position, as set out 
     in sections 1002.196 and 1002.197.

                     Seniority Rights and Benefits

       The eligible employee is entitled to the seniority and 
     seniority-based rights and benefits that he or she had on the 
     date the uniformed service began, plus any seniority and 
     seniority-based rights and benefits that the employee would 
     have attained if he or she had remained continuously 
     employed. The eligible employee is not entitled to any 
     benefits to which he or she would not have been entitled had 
     the employee been continuously employed with the employing 
     office. In determining entitlement to seniority and 
     seniority-based rights and benefits, the period of absence 
     from employment due to or necessitated by uniformed service 
     is not considered a break in employment. The rights and 
     benefits protected by USERRA upon reemployment include those 
     provided by the employing office and those required by 
     statute.
       For example, under USERRA, a reemployed service member 
     would be eligible for leave under the Family and Medical 
     Leave Act of 1993, 29 U.S.C. 2601-2654 (FMLA), if the number 
     of months and the number of hours of work for which the 
     service member was employed by the employing office, together 
     with the number of months and the number of hours of work for 
     which the service member would have been employed by the 
     employing office during the period of uniformed service, meet 
     FMLA's eligibility requirements. In the event that a service 
     member is denied FMLA leave for failing to satisfy the FMLA's 
     hours of work requirement due to absence from employment 
     necessitated by uniformed service, the service member may 
     have a cause of action under USERRA but not under the FMLA.
       No. USERRA does not require the employing office to adopt a 
     formal seniority system. USERRA defines seniority as 
     longevity in employment together with any employment benefits 
     that accrue with, or are determined by, longevity in 
     employment. In the absence of a formal seniority system, such 
     as one established through collective bargaining, USERRA 
     looks to the custom and practice in the place of employment 
     to determine the eligible employee's entitlement to any 
     employment benefits that accrue with, or are determined by, 
     longevity in employment.
       A seniority-based right or benefit is one that accrues 
     with, or is determined by, longevity in employment. 
     Generally, whether a right or benefit is seniority-based 
     depends on three factors:
       (a) Whether the right or benefit is a reward for length of 
     service rather than a form of short-term compensation for 
     work performed;
       (b) Whether it is reasonably certain that the eligible 
     employee would have received the right or benefit if he or 
     she had remained continuously employed during the period of 
     service; and,
       (c) Whether it is the employing office's actual custom or 
     practice to provide or withhold the right or benefit as a 
     reward for length of service. Provisions of an employment 
     contract or policies in the employee handbook are not 
     controlling if the employing office's actual custom or 
     practice is different from what is written in the contract or 
     handbook.
       A reasonable certainty is a high probability that the 
     eligible employee would have received the seniority or 
     seniority-based right or benefit if he or she had been 
     continuously employed. The eligible employee does not have to 
     establish that he or she would have received the benefit as 
     an absolute certainty. The eligible employee can demonstrate 
     a reasonable certainty that he or she would have received the 
     seniority right or benefit by showing that other employees 
     with seniority similar to that which the employee would have 
     had if he or she had remained continuously employed received 
     the right or benefit. The employing office cannot withhold 
     the right or benefit based on an assumption that a series of 
     unlikely events could have prevented the eligible employee 
     from gaining the right or benefit.

                           Disabled Employees

       Yes. A disabled service member is entitled, to the same 
     extent as any other individual, to the escalator position he 
     or she would have attained but for uniformed service. If the 
     eligible employee has a disability incurred in, or aggravated 
     during, the period of service in the uniformed services, the 
     employing office must make reasonable efforts to accommodate 
     that disability and to help the employee become qualified to 
     perform the duties of his or her reemployment position. If 
     the eligible employee is not qualified for reemployment in 
     the escalator position because of a disability after 
     reasonable efforts by the employing office to accommodate the 
     disability and to help the employee to become qualified, the 
     employee must be reemployed in a position according to the 
     following priority. The employing office must make reasonable 
     efforts to accommodate the eligible employee's disability and 
     to help him or her to become qualified to perform the duties 
     of one of these positions:
       (a) A position that is equivalent in seniority, status, and 
     pay to the escalator position; or,
       (b) A position that is the nearest approximation to the 
     equivalent position, consistent with the circumstances of the 
     eligible employee's case, in terms of seniority, status, and 
     pay. A position that is the nearest approximation to the 
     equivalent position may be a higher or lower position, 
     depending on the circumstances.
       (a) USERRA requires that the eligible employee be qualified 
     for the reemployment position regardless of any disability. 
     The employing office must make reasonable efforts to help the 
     eligible employee to become qualified to perform the duties 
     of this position. The employing office is not required to 
     reemploy the eligible employee on his or her return from 
     service if he or she cannot, after reasonable efforts by the 
     employing office, qualify for the appropriate reemployment 
     position.
       (b) ``Qualified'' has the same meaning here as in section 
     1002.198.


[[Page H1842]]


  


                              Rate of Pay

       The eligible employee's rate of pay is determined by 
     applying the same escalator principles that are used to 
     determine the reemployment position, as follows:
       (a) If the eligible employee is reemployed in the escalator 
     position, the employing office must compensate him or her at 
     the rate of pay associated with the escalator position. The 
     rate of pay must be determined by taking into account any pay 
     increases, differentials, step increases, merit increases, or 
     periodic increases that the eligible employee would have 
     attained with reasonable certainty had he or she remained 
     continuously employed during the period of service. In 
     addition, when considering whether merit or performance 
     increases would have been attained with reasonable certainty, 
     an employing office may examine the returning eligible 
     employee's own work history, his or her history of merit 
     increases, and the work and pay history of employees in the 
     same or similar position. For example, if the eligible 
     employee missed a merit pay increase while performing 
     service, but qualified for previous merit pay increases, then 
     the rate of pay should include the merit pay increase that 
     was missed. If the merit pay increase that the eligible 
     employee missed during service is based on a skills test or 
     examination, then the employing office should give the 
     employee a reasonable amount of time to adjust to the 
     reemployment position and then give him or her the skills 
     test or examination. No fixed amount of time for permitting 
     adjustment to reemployment will be deemed reasonable in all 
     cases.
       However, in determining a reasonable amount of time to 
     permit an eligible employee to adjust to reemployment before 
     scheduling a makeup test or examination, an employing office 
     may take into account a variety of factors, including but not 
     limited to the length of time the returning employee was 
     absent from work, the level of difficulty of the test itself, 
     the typical time necessary to prepare or study for the test, 
     the duties and responsibilities of the reemployment position 
     and the promotional position, and the nature and 
     responsibilities of the service member while serving in the 
     uniformed service. The escalator principle also applies in 
     the event a pay reduction occurred in the reemployment 
     position during the period of service. Any pay adjustment 
     must be made effective as of the date it would have occurred 
     had the eligible employee's employment not been interrupted 
     by uniformed service.
       (b) If the eligible employee is reemployed in the pre-
     service position or another position, the employing office 
     must compensate him or her at the rate of pay associated with 
     the position in which he or she is reemployed. As with the 
     escalator position, the rate of pay must be determined by 
     taking into account any pay increases, differentials, step 
     increases, merit increases, or periodic increases that the 
     eligible employee would have attained with reasonable 
     certainty had he or she remained continuously employed during 
     the period of service.

                      Protection Against Discharge

       Yes. If the eligible employee's most recent period of 
     service in the uniformed services was more than 30 days, he 
     or she must not be discharged except for cause --
       (a) For 180 days after the eligible employee's date of 
     reemployment if his or her most recent period of uniformed 
     service was more than 30 days but less than 181 days; or,
       (b) For one year after the date of reemployment if the 
     eligible employee's most recent period of uniformed service 
     was more than 180 days.
       The eligible employee may be discharged for cause based 
     either on conduct or, in some circumstances, because of the 
     application of other legitimate nondiscriminatory reasons.
       (a) In a discharge action based on conduct, the employing 
     office bears the burden of proving that it is reasonable to 
     discharge the eligible employee for the conduct in question, 
     and that he or she had notice, which was express or can be 
     fairly implied, that the conduct would constitute cause for 
     discharge.
       (b) If, based on the application of other legitimate 
     nondiscriminatory reasons, the eligible employee's job 
     position is eliminated, or the eligible employee is placed on 
     layoff status, either of these situations would constitute 
     cause for purposes of USERRA. The employing office bears the 
     burden of proving that the eligible employee's job would have 
     been eliminated or that he or she would have been laid off.

                         Pension Plan Benefits

       On reemployment, the eligible employee is treated as not 
     having a break in service with the employing office for 
     purposes of participation, vesting and accrual of benefits in 
     a pension plan, by reason of the period of absence from 
     employment due to or necessitated by service in the uniformed 
     services.
       (a) Depending on the length of the eligible employee's 
     period of service, he or she is entitled to take from one to 
     ninety days following service before reporting back to work 
     or applying for reemployment (See section 1002.115). This 
     period of time must be treated as continuous service with the 
     employing office for purposes of determining participation, 
     vesting and accrual of pension benefits under the plan.
       (b) If the eligible employee is hospitalized for, or 
     convalescing from, an illness or injury incurred in, or 
     aggravated during, service, he or she is entitled to report 
     to or submit an application for reemployment at the end of 
     the time period necessary for him or her to recover from the 
     illness or injury. This period, which may not exceed two 
     years from the date the eligible employee completed service, 
     except in circumstances beyond his or her control, must be 
     treated as continuous service with the employing office for 
     purposes of determining the participation, vesting and 
     accrual of pension benefits under the plan.
       (a) The Employee Retirement Income Security Act of 1974 
     (ERISA) defines an employee pension benefit plan as a plan 
     that provides retirement income to employees, or defers 
     employee income to a period extending to or beyond the 
     termination of employment. USERRA also covers certain pension 
     plans not covered by ERISA, such as those sponsored by the 
     Federal Government.
       (b) USERRA does not cover pension benefits under the 
     Federal Thrift Savings Plan; those benefits are covered under 
     5 U.S.C. 8432b.
       With the exception of multi-employer plans, which have 
     separate rules discussed below, the employing office is 
     required to ensure the funding of any obligation of the plan 
     to provide benefits that are attributable to the eligible 
     employee's period of service. In the case of a defined 
     contribution plan, once the eligible employee is reemployed, 
     the employing office must ensure that the amount of the make-
     up contribution for the employee, if any; the employee's 
     make-up contributions, if any; and the employee's elective 
     deferrals, if any; in the same manner and to the same extent 
     that the amounts are allocated for other employees during the 
     period of service. In the case of a defined benefit plan, the 
     eligible employee's accrued benefit will be increased for the 
     period of service once he or she is reemployed and, if 
     applicable, has repaid any amounts previously paid to him or 
     her from the plan and made any employee contributions that 
     may be required to be made under the plan.
       (a) Employer contributions are not required until the 
     eligible employee is reemployed. For employer contributions 
     to a plan in which the eligible employee is not required or 
     permitted to contribute, the contribution attributable to the 
     employee's period of service must be made no later than 
     ninety days after the date of reemployment, or when plan 
     contributions are normally due for the year in which the 
     service in the uniformed services was performed, whichever is 
     later. If it is impossible or unreasonable for the 
     contribution to be made within this time period, the 
     contribution must be made as soon as practicable.
       (b) If the eligible employee is enrolled in a contributory 
     plan, he or she is allowed (but not required) to make up his 
     or her missed contributions or elective deferrals. These 
     makeup contributions, or elective deferrals, must be made 
     during a time period starting with the date of reemployment 
     and continuing for up to three times the length of the 
     eligible employee's immediate past period of uniformed 
     service, with the repayment period not to exceed five years. 
     Makeup contributions or elective deferrals may only be made 
     during this period and while the employee is employed with 
     the post-service employing office.
       (c) If the eligible employee's plan is contributory and he 
     or she does not make up his or her contributions or elective 
     deferrals, he or she will not receive the employer match or 
     the accrued benefit attributable to his or her contribution. 
     This is true because employer contributions are contingent on 
     or attributable to the employee's contributions or elective 
     deferrals only to the extent that the employee makes up his 
     or her payments to the plan. Any employer contributions that 
     are contingent on or attributable to the eligible employee's 
     make-up contributions or elective deferrals must be made 
     according to the plan's requirements for employer matching 
     contributions.
       (d) The eligible employee is not required to make up the 
     full amount of employee contributions or elective deferrals 
     that he or she missed making during the period of service. If 
     the eligible employee does not make up all of the missed 
     contributions or elective deferrals, his or her pension may 
     be less than if he or she had done so.
       (e) Any vested accrued benefit in the pension plan that the 
     eligible employee was entitled to prior to the period of 
     uniformed service remains intact whether or not he or she 
     chooses to be reemployed under the Act after leaving the 
     uniformed service.
       (f) An adjustment will be made to the amount of employee 
     contributions or elective deferrals that the eligible 
     employee will

[[Page H1843]]

     be able to make to the pension plan for any employee 
     contributions or elective deferrals he or she actually made 
     to the plan during the period of service.
       No. The eligible employee is not required or permitted to 
     make up a missed contribution in an amount that exceeds the 
     amount he or she would have been permitted or required to 
     contribute had he or she remained continuously employed 
     during the period of service.
       Yes, provided the plan is a defined benefit plan. If the 
     eligible employee received a distribution of all or part of 
     the accrued benefit from a defined benefit plan in connection 
     with his or her service in the uniformed services before he 
     or she became reemployed, he or she must be allowed to repay 
     the withdrawn amounts when he or she is reemployed. The 
     amount the eligible employee must repay includes any interest 
     that would have accrued had the monies not been withdrawn. 
     The eligible employee must be allowed to repay these amounts 
     during a time period starting with the date of reemployment 
     and continuing for up to three times the length of the 
     employee's immediate past period of uniformed service, with 
     the repayment period not to exceed five years (or such longer 
     time as may be agreed to between the employing office and the 
     employee), provided the employee is employed with the post-
     service employing office during this period.
       The amount of the eligible employee's pension benefit 
     depends on the type of pension plan.
       (a) In a non-contributory defined benefit plan, where the 
     amount of the pension benefit is determined according to a 
     specific formula, the eligible employee's benefit will be the 
     same as though he or she had remained continuously employed 
     during the period of service.
       (b) In a contributory defined benefit plan, the eligible 
     employee will need to make up contributions in order to have 
     the same benefit as if he or she had remained continuously 
     employed during the period of service.
       (c) In a defined contribution plan, the benefit may not be 
     the same as if the employee had remained continuously 
     employed, even though the employee and the employer make up 
     any contributions or elective deferrals attributable to the 
     period of service, because the employee is not entitled to 
     forfeitures and earnings or required to experience losses 
     that accrued during the period or periods of service.
       A multi-employer pension benefit plan is one to which more 
     than one employer is required to contribute, and which is 
     maintained pursuant to one or more collective bargaining 
     agreements between one or more employee organizations and 
     more than one employer. The Act uses ERISA's definition of a 
     multi-employer plan. In addition to the provisions of USERRA 
     that apply to all pension benefit plans, there are provisions 
     that apply specifically to multi-employer plans, as follows:
       (a) The last employer that employed the eligible employee 
     before the period of service is responsible for making the 
     employer contribution to the multi-employer plan, if the plan 
     sponsor does not provide otherwise. If the last employer is 
     no longer functional, the plan must nevertheless provide 
     coverage to the eligible employee.
       (b) An employer that contributes to a multi-employer plan 
     and that reemploys the eligible employee pursuant to USERRA 
     must provide written notice of reemployment to the plan 
     administrator within 30 days after the date of reemployment. 
     The returning service member should notify the reemploying 
     employer that he or she has been reemployed pursuant to 
     USERRA. The 30-day period within which the reemploying 
     employer must provide written notice to the multi-employer 
     plan pursuant to this subsection does not begin until the 
     employer has knowledge that the eligible employee was re-
     employed pursuant to USERRA.
       (c) The eligible employee is entitled to the same employer 
     contribution whether he or she is reemployed by the pre-
     service employer or by a different employer contributing to 
     the same multi-employer plan, provided that the pre-service 
     employer and the post-service employer share a common means 
     or practice of hiring the employee, such as common 
     participation in a union hiring hall.
       In many pension benefit plans, the eligible employee's 
     compensation determines the amount of his or her contribution 
     or the retirement benefit to which he or she is entitled.
       (a) Where the eligible employee's rate of compensation must 
     be calculated to determine pension entitlement, the 
     calculation must be made using the rate of pay that the 
     employee would have received but for the period of uniformed 
     service.
       (b)(1) Where the rate of pay the eligible employee would 
     have received is not reasonably certain, the average rate of 
     compensation during the 12-month period prior to the period 
     of uniformed service must be used.
       (2) Where the rate of pay the eligible employee would have 
     received is not reasonably certain and he or she was employed 
     for less than 12 months prior to the period of uniformed 
     service, the average rate of compensation must be derived 
     from this shorter period of employment that preceded service.

                         Compliance Assistance

                       Investigation and Referral

     Enforcement of Rights and Benefits Against an Employing Office

                         Compliance Assistance

       The Office of Congressional Workplace Rights provides 
     assistance to any person or entity who is covered by the CAA 
     with respect to employment and reemployment rights and 
     benefits under USERRA as applied by the CAA. This assistance 
     includes responding to inquiries, and providing a program of 
     education and information on matters relating to USERRA.

                       Investigation and Referral

       (a) The Procedural Rules of the Office of Congressional 
     Workplace Rights set forth the procedures for considering and 
     resolving alleged violations of the laws made applicable by 
     the CAA, including USERRA. The Rules include procedures for 
     filing claims and participating in administrative dispute 
     resolution proceedings at the Office of Congressional 
     Workplace Rights, including procedures for the conduct of 
     hearings and for appeals to the Board of Directors. The 
     Procedural Rules also address other matters of general 
     applicability to the dispute resolution process and to the 
     operations of the Office.
       (b) The Procedural Rules of the Office of Congressional 
     Workplace Rights can be found on the Office's website at 
     www.ocwr.gov.

 Enforcement of Rights and Benefits Against an Employing Office

       Yes. Eligible employees must first file a claim form with 
     the Office of Congressional Workplace Rights before making an 
     election between requesting an administrative hearing or 
     filing a civil action in Federal district court.
       An action under section 206 of the CAA may be brought by an 
     eligible employee, as defined by section 1002.5(f) of Subpart 
     A of these regulations. An action under section 208(a) of the 
     CAA may be brought by a covered employee, as defined by 
     section 1002.5 (e) of Subpart A of these regulations. An 
     employing office, prospective employing office or other 
     similar entity may not bring an action under the Act.
       In an action under USERRA, only the covered employing 
     office or a potential covered employing office, as the case 
     may be, is a necessary party respondent. Under the Office of 
     Congressional Workplace Rights Procedural Rules, a hearing 
     officer has authority to require the filing of briefs, 
     memoranda of law, and the presentation of oral argument. A 
     hearing officer also may order the production of evidence and 
     the appearance of witnesses.
       If an eligible employee is a prevailing party with respect 
     to any claim under USERRA, the hearing officer, Board, or 
     court may award reasonable attorney fees, expert witness 
     fees, and other litigation expenses.

[[Page H1844]]

       USERRA does not have a statute of limitations. However, 
     section 402 of the CAA, 2 U.S.C. 1402, requires a covered 
     employee to file a claim with the Office of Congressional 
     Workplace Rights alleging a violation of the CAA no later 
     than 180 days after the date of the alleged violation. A 
     claim by an eligible employee alleging a USERRA violation as 
     applied by the CAA would follow this requirement.
       In any action or proceeding the following relief may be 
     awarded:
       (a) The court and/or hearing officer may require the 
     employing office to comply with the provisions of the Act;
       (b) The court and/or hearing officer may require the 
     employing office to compensate the eligible employee for any 
     loss of wages or benefits suffered by reason of the employing 
     office's failure to comply with the Act;
       (c) The court and/or hearing officer may require the 
     employing office to pay the eligible employee an amount equal 
     to the amount of lost wages and benefits as liquidated 
     damages, if the court and/or hearing officer determines that 
     the employing office's failure to comply with the Act was 
     willful. A violation shall be considered to be willful if the 
     employing office either knew or showed reckless disregard for 
     whether its conduct was prohibited by the Act.
       (d) Any wages, benefits, or liquidated damages awarded 
     under paragraphs (b) and (c) of this section are in addition 
     to, and must not diminish, any of the other rights and 
     benefits provided by USERRA (such as, for example, the right 
     to be employed or reemployed by the employing office).

                          ____________________