[House Report 111-118]
[From the U.S. Government Publishing Office]
111th Congress Report
HOUSE OF REPRESENTATIVES
1st Session 111-118
======================================================================
WOUNDED VETERAN JOB SECURITY ACT
_______
May 19, 2009.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Filner, from the Committee on Veterans' Affairs, submitted the
following
R E P O R T
[To accompany H.R. 466]
[Including cost estimate of the Congressional Budget Office]
The Committee on Veterans' Affairs, to whom was referred the
bill (H.R. 466) to amend title 38, United States Code, to
prohibit discrimination and acts of reprisal against persons
who receive treatment for illnesses, injuries, and disabilities
incurred in or aggravated by service in the uniformed services,
having considered the same, report favorably thereon with
amendments and recommend that the bill as amended do pass.
CONTENTS
Page
Amendment........................................................ 2
Purpose and Summary.............................................. 4
Background and Need for Legislation.............................. 4
Hearings......................................................... 4
Subcommittee Consideration....................................... 5
Committee Consideration.......................................... 5
Committee Votes.................................................. 5
Committee Oversight Findings..................................... 5
Statement of General Performance Goals and Objectives............ 5
New Budget Authority, Entitlement Authority, and Tax Expenditures 6
Earmarks and Tax and Tariff Benefits............................. 6
Committee Cost Estimate.......................................... 6
Congressional Budget Office Estimate............................. 6
Federal Mandates Statement....................................... 9
Advisory Committee Statement..................................... 9
Constitutional Authority Statement............................... 9
Applicability to Legislative Branch.............................. 9
Section-by-Section Analysis of the Legislation................... 9
Changes in Existing Law Made by the Bill as Reported............. 10
Amendment
The amendment is as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Wounded Veteran Job Security Act''.
SEC. 2. RIGHTS OF PERSONS WHO RECEIVE TREATMENT FOR ILLNESSES,
INJURIES, AND DISABILITIES INCURRED IN OR
AGGRAVATED BY SERVICE IN THE UNIFORMED SERVICES.
(a) Rights of Persons Who Receive Treatment.--
(1) In general.--Subchapter II of chapter 43 of title 38,
United States Code, is amended by adding at the end the
following new section:
``Sec. 4320. Rights of persons absent from employment for treatment of
service-connected disabilities
``(a) Retention.--Subject to subsection (e), a person who is absent
from a position of employment by reason of the receipt of medical
treatment for a service-connected disability is entitled to be retained
by the person's employer.
``(b) Seniority.--A person who is absent from employment by reason of
the receipt of medical treatment for a service-connected disability and
who is entitled to be retained by the person's employer under
subsection (a) is entitled to the seniority and other rights and
benefits determined by seniority that the person had on the date of the
commencement of such treatment plus the additional seniority and rights
and benefits that such person would have attained if the person had
remained continuously employed.
``(c) Benefits.--(1) A person who is absent from a position of
employment by reason of the receipt of medical treatment for a service-
connected disability and who is entitled to be retained by the person's
employer under subsection (a) shall be--
``(A) deemed to be on furlough or leave of absence while
receiving such treatment; and
``(B) entitled to such other rights and benefits not
determined by seniority as are generally provided by the
employer of the person to employees having similar seniority,
status, and pay who are on furlough or leave of absence under a
contract, agreement, policy, practice, or plan in effect at the
commencement of such service or established while such person
is so absent.
``(2)(A) Subject to subparagraph (C), a person described in
subparagraph (B) is not entitled to rights and benefits under paragraph
(1)(B).
``(B) A person described in this subparagraph is a person who--
``(i) is absent from a position of employment by reason of
the receipt of medical treatment for a service-connected
disability; and
``(ii) knowingly provides written notice of intent not to
return to a position of employment after receiving such
treatment.
``(C) For the purposes of subparagraph (A), the employer shall have
the burden of proving that a person knowingly provided clear written
notice of intent not to return to a position of employment after being
absent from employment by reason of the receipt of medical treatment
and, in doing so, was aware of the specific rights and benefits to be
lost under subparagraph (A).
``(3) A person deemed to be on furlough or leave of absence under
this subsection while receiving medical treatment for a service-
connected disability shall not be entitled under this subsection to any
benefits to which the person would not otherwise be entitled if the
person had remained continuously employed.
``(4) Such person may be required to pay the employee cost, if any,
of any funded benefit continued pursuant to paragraph (1) to the extent
other employees on furlough or leave of absence are so required.
``(5) The entitlement of a person to coverage under a health plan is
provided for under section 4317 of this title.
``(6) The entitlement of a person to a right or benefit under an
employee pension benefit plan is provided for under section 4318 of
this title.
``(d) Leave.--Any person who is absent from a position of employment
with an employer by reason of the receipt of medical treatment for a
service-connected disability shall be permitted, upon request of that
person, to use during the period during which the person is so absent,
any vacation, annual, medical, or similar leave with pay accrued by the
person before the commencement of such period. No employer may require
any such person to use vacation, annual, family, medical, or similar
leave during such period.
``(e) Exceptions.--(1) An employer is not required to retain a person
under this section if--
``(A) the employer's circumstances have so changed as to make
such retention impossible or unreasonable;
``(B) such retention would impose an undue hardship on the
employer; or
``(C) the employment from which the person is absent by
reason of the receipt of medical treatment is for a brief,
nonrecurrent period and there is no reasonable expectation that
such employment will continue indefinitely or for a significant
period.
``(2) In any proceeding involving an issue of whether (A) any
retention referred to in paragraph (1) is impossible or unreasonable
because of a change in an employer's circumstances, (B) such retention
would impose an undue hardship on the employer, or (C) the employment
referred to in paragraph (1)(C) is for a brief, nonrecurrent period and
there is no reasonable expectation that such employment will continue
indefinitely or for a significant period, the employer shall have the
burden of proving the impossibility or unreasonableness, undue
hardship, or the brief or nonrecurrent nature of the employment without
a reasonable expectation of continuing indefinitely or for a
significant period.''.
(2) Clerical amendment.--The table of sections at the
beginning of such chapter is amended by inserting after the
item relating to section 4319 the following new item:
``4320. Rights of persons absent from employment for treatment of
service-connected disabilities.''.
(b) Health Plan.--Section 4317 of title 38, United States Code, is
amended by adding at the end the following new subsection:
``(c) This section shall apply with respect to a person who is absent
from a position of employment by reason of the receipt of medical
treatment for a service-connected disability (other than a person
described in section 4320(c)(2)(B) of this title) on the same basis as
a person who is absent from a position of employment by reason of
service in the uniformed services. In the case of a person who is
absent from a position of employment by reason of the receipt of
medical treatment for a service-connected disability (other than a
person described in section 4320(c)(2)(B) of this title), the period
during which the person is so absent shall be treated as a period of
service in the uniformed services for purposes of this section.''.
(c) Employee Pension Benefit Plans.--Section 4318 of title 38, United
States Code, is amended by adding at the end the following new
subsection:
``(d) This section shall apply with respect to a person who is absent
from a position of employment by reason of the receipt of medical
treatment for a service-connected disability (other than a person
described in section 4320(c)(2)(B) of this title) on the same basis as
a person who is reemployed under this chapter. In the case of a person
who is absent from a position of employment by reason of the receipt of
medical treatment for a service-connected disability (other than a
person described in section 4320(c)(2)(B) of this title), the period
during which the person is so absent shall be treated as a period of
service in the uniformed services for purposes of this section.''.
(d) Prohibition of Discrimination and Acts of Reprisal.--Section 4311
of title 38, United States Code, is amended--
(1) in subsection (a)--
(A) by inserting after ``uniformed service'' the
following: ``, or who has an illness, injury, or
disability determined by the Secretary of Veterans
Affairs to have been incurred in or aggravated by such
service,''; and
(B) by striking ``or obligation'' and inserting
``obligation, or receipt of treatment for that illness,
injury, or disability''; and
(2) in subsection (c)--
(A) by striking ``or obligation for service'' the
first time it appears and inserting ``obligation for
service, or receipt of treatment for an illness,
injury, or disability determined by the Secretary of
Veterans Affairs to have been incurred in or aggravated
by service''; and
(B) by striking ``or obligation for service'' the
second time it appears and inserting ``obligation for
service, or receipt of treatment''.
(e) Effective Date.--The amendments made by this section shall apply
with respect to medical treatment received on or after the date of the
enactment of this Act.
Amend the title so as to read:
A bill to amend title 38, United States Code, to provide
for certain rights and benefits for persons who are absent from
positions of employment to receive medical treatment for
service-connected disabilities.
Purpose and Summary
H.R. 466 was introduced on January 13, 2009, by
Representative Lloyd Doggett of Texas. H.R. 466, as amended,
seeks to expand Uniformed Services Employment and Reemployment
Rights Act (USERRA) protections to include servicemembers and
veterans who have an illness, injury or disability determined
by the Secretary of the U.S. Department of Veterans Affairs
(VA) to have been incurred in or aggravated by military
service.
Background and Need For Legislation
USERRA provides certain employment protections by
prohibiting discrimination in employment against persons who
serve, have served or apply to serve in the uniformed services
to include Reserve forces and National Guard members who are
mobilized or are on active duty for training. It also prohibits
acts of reprisal against persons who act to enforce the law.
USERRA additionally provides that returning servicemembers
be reemployed in the job they would have attained had they not
been absent due to military service, with the same seniority,
status and pay, as well as other rights and benefits determined
by seniority. This law also requires that reasonable efforts
(such as training or retraining) be made to enable returning
servicemembers to refresh or upgrade their skills to help them
qualify for reemployment. The law provides for alternative
reemployment positions if the servicemember cannot qualify for
the position they would have attained if they had not served in
the U.S. Armed Forces.
Recognizing the need to reevaluate existing laws to protect
servicemembers and veterans, Representative Doggett of Texas
introduced legislation to expand USERRA protections to cover
servicemembers and veterans whose service connected disability
requires extended medical care. On March 4, 2009,
Representative Doggett testified before the Subcommittee on
Economic Opportunity that over 30,000 troops have been wounded
as a result of their service in support of Operation Iraqi
Freedom and Operation Enduring Freedom. Of these, over 8,000
have suffered from Traumatic Brain Injuries (TBI) and over
1,200 have required amputation of a limb. Representative
Doggett also highlighted that such injuries, and others
encountered by thousands of servicemembers, can pose severe
obstacles for someone who is attempting to heal and maintain
employment at the same time.
Hearings
On March 4, 2009, the Subcommittee on Economic Opportunity
held a legislative hearing on several bills introduced during
the 111th Congress, including H.R. 466.
The following witnesses testified: The Honorable Steve
Israel of New York; The Honorable Peter Welch of Vermont; The
Honorable Lloyd Doggett of Texas; Mr. Justin Brown, Legislative
Associate, National Legislative Service, Veterans of Foreign
Wars of the United States; Ms. Cheryl Beversdorf, RN, MHS, MA,
President and Chief Executive Officer, National Coalition for
Homeless Veterans; Mr. John L. Wilson, Associate National
Legislative Director, Disabled American Veterans; Mr. Mark
Walker, Assistant Director, National Economic Commission, The
American Legion; Mr. Thomas Zampieri, Ph.D., Director of
Government Relations, Blinded Veterans of America; Mr. Patrick
H. Boulay, Chief, USERRA Unit, U.S. Office of Special Counsel;
Mr. Keith M. Wilson, Director, Education Service, Veterans
Benefits Administration, U.S. Department of Veterans Affairs.
Those submitting statements for the record included: Mr. John
M. McWilliam, Deputy Assistant Secretary, Veterans' Employment
and Training Service, U.S. Department of Labor; The Honorable
Rodney Alexander of Louisiana; The Honorable Steve Buyer of
Indiana; The Honorable Bob Filner of California; Mr. David
French, Vice President, Government Relations, International
Franchise Association; Mr. Thomas S. Whitaker, President and
Deputy Chairman, North Carolina Employment Security Commission,
on behalf of National Association of State Workforce Agencies;
and the Paralyzed Veterans of America.
Subcommittee Consideration
On March 19, 2009, the Subcommittee on Economic Opportunity
met in open markup session and ordered favorably forwarded to
the full Committee H.R. 466 by voice vote.
Committee Consideration
On May 6, 2009, the full Committee met in an open markup
session, a quorum being present, and ordered H.R. 466, as
amended, reported favorably to the House of Representatives, by
voice vote. During consideration of the bill the following
amendment was considered:
An amendment in the nature of a substitute, offered by Ms.
Herseth Sandlin of South Dakota allowing employers to prove
that the bill would impose an undue hardship to the employer
and bringing the bill language in line with the current
protections afforded to servicemembers and veterans under
USERRA, was agreed to by voice vote.
Committee Votes
Clause 3(b) of rule XIII of the Rules of the House of
Representatives requires the Committee to list the record votes
on the motion to report the legislation and amendments thereto.
There were no record votes taken on amendments or in connection
with ordering H.R. 466 reported to the House. A motion by Mr.
Buyer of Indiana to order H.R. 466, as amended, reported
favorably to the House of Representatives was agreed to by
voice vote.
Committee Oversight Findings
In compliance with clause 3(c)(1) of rule XIII and clause
(2)(b)(1) of rule X of the Rules of the House of
Representatives, the Committee's oversight findings and
recommendations are reflected in the descriptive portions of
this report.
Statement of General Performance Goals and Objectives
In accordance with clause 3(c)(4) of rule XIII of the Rules
of the House of Representatives, the Committee's performance
goals and objectives are reflected in the descriptive portions
of this report.
New Budget Authority, Entitlement Authority, and Tax Expenditures
In compliance with clause 3(c)(2) of rule XIII of the Rules
of the House of Representatives, the Committee adopts as its
own the estimate of new budget authority, entitlement
authority, or tax expenditures or revenues contained in the
cost estimate prepared by the Director of the Congressional
Budget Office pursuant to section 402 of the Congressional
Budget Act of 1974.
Earmarks and Tax and Tariff Benefits
H.R. 466 does not contain any congressional earmarks,
limited tax benefits, or limited tariff benefits as defined in
clause 9(d), 9(e), or 9(f) of rule XXI of the Rules of the
House of Representatives.
Committee Cost Estimate
The Committee adopts as its own the cost estimate on H.R.
466 prepared by the Director of the Congressional Budget Office
pursuant to section 402 of the Congressional Budget Act of
1974.
Congressional Budget Office Cost Estimate
Pursuant to clause 3(c)(3) of rule XIII of the Rules of the
House of Representatives, the following is the cost estimate
for H.R. 466 provided by the Congressional Budget Office
pursuant to section 402 of the Congressional Budget Act of
1974:
U.S. Congress,
Congressional Budget Office,
Washington, DC, May 19, 2009.
Hon. Bob Filner,
Chairman, Committee on Veterans' Affairs,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 466, the Wounded
Veteran Job Security Act.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Camille
Woodland.
Sincerely,
Douglas W. Elmendorf,
Director.
Enclosure.
H.R. 466--Wounded Veteran Job Security Act
Summary: H.R. 466 would protect veterans from losing their
jobs when they are absent from work in order to receive medical
treatment for service-connected disabilities and would allow
them to retain seniority, health, pension, and other benefits.
CBO estimates that implementing the bill would cost $6 million
over the 2010-2014 period, assuming the appropriation of the
necessary amounts. In addition, CBO estimates that enacting
H.R. 466 would reduce revenues by $15 million over the 2010-
2019 period and would have an insignificant effect on direct
spending.
The requirements on employers to retain veterans as
employees and to provide certain benefits would be
intergovernmental and private-sector mandates as defined in the
Unfunded Mandates Reform Act (UMRA). CBO estimates that the
costs of complying with the mandates would fall below the
annual thresholds established in UMRA for both
intergovernmental and private-sector mandates ($69 million and
$139 million in 2009, respectively, adjusted annually for
inflation).
Estimated cost to the Federal Government: The estimated
budgetary impact of H.R. 466 is shown in the following table.
The discretionary costs of this legislation fall within budget
functions that include employee pay and benefits. The direct
spending costs fall within budget function 600 (income
security).
--------------------------------------------------------------------------------------------------------------------------------------------------------
By fiscal year in millions of dollars-- -------------------------------------------------------------------------------------------
2010 2011 2012 2013 2014 2015 2016 2017 2018 2019 2010-2014 2010-2019
--------------------------------------------------------------------------------------------------------------------------------------------------------
CHANGES IN REVENUES\1\
Estimated Revenues.......................................... -1 -1 -1 -1 -1 -2 -2 -2 -2 -2 -6 -15
CHANGES IN SPENDING SUBJECT TO APPROPRIATION
Estimated Authorization Level............................... 1 1 1 1 1 1 1 1 2 2 6 13
Estimated Outlays........................................... 1 1 1 1 1 1 1 1 2 2 6 13
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\a. Negative numbers indicate a reduction in revenues and an increase in the deficit.
Notes.--CBO estimates that the direct spending costs of this bill would total less than $500,000 over the 2010-2019 period. Components may not sum to
totals because of rounding.
Basis of estimate: For this estimate, CBO estimates that
H.R. 466 will be enacted near the end of fiscal year 2009 and
that the necessary amounts will be appropriated for each year
beginning in 2010.
Revenues
H.R. 466 would result in higher matching contributions by
private-sector employers into 401(k) plans. Higher
contributions, in turn, would result in more of an employee's
compensation being received in the form of tax-deferred
retirement contributions, and less in the form of taxable
wages. As a result of this shift, federal revenues from income
and payroll taxes would decline. CBO estimates that revenues
would be reduced by $15 million over the 2010-2019 period.
Social Security payroll taxes, which are off-budget, would
account for about $5 million of that amount.
Spending Subject to Appropriation
The federal government would bear the increased cost of
employee benefits for veterans who are federal employees and
who would take leave from work under this bill; however, many
of the protections available to veterans under this bill
already exist in current law, and would not increase costs to
the federal government. Under Executive Order 5396, disabled
veterans employed by the Executive Branch are entitled to
leave-without-pay in order to receive necessary medical
treatment. Employees of the federal government who have been at
their jobs for at least a year are already allowed to take up
to 12 weeks of unpaid leave for certain medical reasons and
retain their health care benefits under the Family and Medical
Leave Act (FMLA). In addition, benefit and leave policies
throughout the federal government allow individuals in leave-
without-pay status to continue to be eligible for health
insurance, retirement, and other benefits for up to a year.
Under current law, federal employees taking unpaid leave
cannot contribute to or receive a matching contribution from
their employers to their Thrift Savings Plan (TSP), the
retirement savings and investment plan for federal employees.
H.R. 466 would allow eligible veterans to make the missed TSP
contributions after they return to work. The employing agency
would then be required to make a matching contribution. Based
on information from the Department of Veterans Affairs and
usage and benefit rates for FMLA, CBO estimates that
approximately 9,400 eligible veterans who are federal employees
would take leave under H.R. 466 annually. Based on TSP
participation rates from the U.S. Office of Personnel
Management, CBO estimates that approximately 5,700 veterans
annually (or 60 percent) would contribute to their TSP after
returning to work and would receive a 3 percent matching
contribution. Assuming an average leave period of one month,
the employer cost would be approximately $200 per employee. CBO
estimates that the cost to the federal government for the
matching contributions would be approximately $1 million in the
first year, and $5 million over the 2010-2014 period, assuming
the availability of appropriated funds.
CBO estimates that there would be a relatively small cost
for benefits for employees not covered under FMLA, but who
would be allowed to take unpaid leave under this bill. This
would include new employees of less than a year and individuals
who needed more than 12 weeks of leave. CBO estimates these
costs would total about $1 million over the 2010-2014 period.
Direct Spending
H.R. 466 also would have a relatively small direct spending
cost for increased retirement payments for federal employees.
Under current law and policy, individuals on unpaid leave for
more than six months in one year receive a reduced retirement
benefit under the Federal Employees Retirement System. Under
H.R. 466, individuals taking over six months of leave-without-
pay would not have their retirement benefits reduced. CBO
expects the increases in retirement payments under this bill to
be small; most of the increase in spending would occur outside
the 10-year budget projection period. We estimate that the
increased retirement payments would increase direct spending by
an insignificant amount over the 2010-2019 period.
Intergovernmental and Private-Sector Impact: H.R. 466 would
impose intergovernmental and private-sector mandates as defined
in UMRA on employers of veterans who miss work for a period of
time due to medical treatment for a service-connected injury.
The bill would require employers to retain such veterans as
employees, and grant them seniority and other rights and
benefits as if they had not been absent. Those rights to
employment, seniority, and benefits would accrue to veterans
regardless of their length of employment. Benefit levels would,
however, be limited to those provided to similar employees.
Based on leave and benefits data for individuals who are
covered by FMLA, CBO estimates that the costs of the mandates
would fall below the annual thresholds established in UMRA for
both intergovernmental and private-sector mandates ($69 million
and $139 million in 2009, respectively, adjusted annually for
inflation).
Section 4 of UMRA excludes from the application of that act
any legislative provisions that establish or enforce any
statutory rights that prohibit discrimination on the basis of
race, color, religion, sex, national origin, age, handicap, or
disability. CBO has determined that section 3(d) of the bill
would fall within that exclusion and has not reviewed the
section for mandates.
Estimate prepared by: Federal Spending: Camille Woodland;
Federal Revenues: Zachary Epstein; Impact on State, Local, and
Tribal Governments: Lisa Ramirez-Branum; Impact on the Private
Sector: Elizabeth Bass.
Estimate approved by: Theresa Gullo, Deputy Assistant
Director for Budget Analysis.
Federal Mandates Statement
The Committee adopts as its own the estimate of Federal
mandates regarding H.R. 466 prepared by the Director of the
Congressional Budget Office pursuant to section 423 of the
Unfunded Mandates Reform Act.
Advisory Committee Statement
No advisory committees within the meaning of section 5(b)
of the Federal Advisory Committee Act would be created by H.R.
466.
Constitutional Authority Statement
Pursuant to clause 3(d)(1) of rule XIII of the Rules of the
House of Representatives, the Committee finds that the
Constitutional authority for H.R. 466 is provided by Article I,
section 8 of the Constitution of the United States.
Applicability to Legislative Branch
The Committee finds that the legislation does not relate to
the terms and conditions of employment or access to public
services or accommodations within the meaning of section
102(b)(3) of the Congressional Accountability Act.
Section-by-Section Analysis of the Legislation
Section 1. Short title
This section provides the short title of H.R. 466, as
amended, as the ``Wounded Veteran Job Security Act.''
Section 2. Rights of persons who receive treatment for illnesses,
injuries, and disabilities incurred or aggravated by service in
the uniformed services.
This section would add a new section 4320 to Subchapter II
of Chapter 43 of title 38 to expand Uniformed Services
Employment and Reemployment Rights Act (USERRA) protections to
include servicemembers and veterans who have an illness, injury
or disability determined by the Secretary of the U.S.
Department of Veterans Affairs to have been incurred in, or
aggravated by, military service.
This new section would provide that service-connected
disabled veterans who seek medical attention would have USERRA
protections for seniority, status, retention, and pay as well
as other rights and benefits determined by employment.
This section provides the employer the opportunity to
terminate the leave provided to the veteran under this section
if the employer's circumstances have changed so as to make such
retention impossible or unreasonable, it is proven that such
leave would impose an undue hardship to the employer, or there
is no reasonable expectation that such employment will continue
indefinitely or for a significant period.
This section provides that amendments made by this section
shall apply to medical treatment received on or after the date
of enactment of this act.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italic, existing law in which no change is
proposed is shown in roman):
TITLE 38, UNITED STATES CODE
* * * * * * *
PART III--READJUSTMENT AND RELATED BENEFITS
* * * * * * *
CHAPTER 43--EMPLOYMENT AND REEMPLOYMENT RIGHTS OF MEMBERS OF THE
UNIFORMED SERVICES
SUBCHAPTER I--GENERAL
Sec.
4301. Purposes; sense of Congress.
* * * * * * *
SUBCHAPTER II--EMPLOYMENT AND REEMPLOYMENT RIGHTS AND LIMITATIONS;
PROHIBITIONS
* * * * * * *
4320. Rights of persons absent from employment for treatment of
service-connected disabilities.
* * * * * * *
SUBCHAPTER II--EMPLOYMENT AND REEMPLOYMENT RIGHTS AND LIMITATIONS;
PROHIBITIONS
Sec. 4311. Discrimination against persons who serve in the uniformed
services and acts of reprisal prohibited
(a) A person who is a member of, applies to be a member of,
performs, has performed, applies to perform, or has an
obligation to perform service in a uniformed service, or who
has an illness, injury, or disability determined by the
Secretary of Veterans Affairs to have been incurred in or
aggravated by such service, shall not be denied initial
employment, reemployment, retention in employment, promotion,
or any benefit of employment by an employer on the basis of
that membership, application for membership, performance of
service, application for service, [or obligation] obligation,
or receipt of treatment for that illness, injury, or
disability.
* * * * * * *
(c) An employer shall be considered to have engaged in
actions prohibited--
(1) under subsection (a), if the person's membership,
application for membership, service, application for
service, [or obligation for service] obligation for
service, or receipt of treatment for an illness,
injury, or disability determined by the Secretary of
Veterans Affairs to have been incurred in or aggravated
by service in the uniformed services is a motivating
factor in the employer's action, unless the employer
can prove that the action would have been taken in the
absence of such membership, application for membership,
service, application for service, [or obligation for
service] obligation for service, or receipt of
treatment; or
* * * * * * *
Sec. 4317. Health plans
(a) * * *
* * * * * * *
(c) This section shall apply with respect to a person who is
absent from a position of employment by reason of the receipt
of medical treatment for a service-connected disability (other
than a person described in section 4320(c)(2)(B) of this title)
on the same basis as a person who is absent from a position of
employment by reason of service in the uniformed services. In
the case of a person who is absent from a position of
employment by reason of the receipt of medical treatment for a
service-connected disability (other than a person described in
section 4320(c)(2)(B) of this title), the period during which
the person is so absent shall be treated as a period of service
in the uniformed services for purposes of this section.
Sec. 4318. Employee pension benefit plans
(a) * * *
* * * * * * *
(d) This section shall apply with respect to a person who is
absent from a position of employment by reason of the receipt
of medical treatment for a service-connected disability (other
than a person described in section 4319(c)(2)(B) of this title)
on the same basis as a person who is reemployed under this
chapter. In the case of a person who is absent from a position
of employment by reason of the receipt of medical treatment for
a service-connected disability (other than a person described
in section 4320(c)(2)(B) of this title), the period during
which the person is so absent shall be treated as a period of
service in the uniformed services for purposes of this section.
* * * * * * *
Sec. 4320. Rights of persons absent from employment for treatment of
service-connected disabilities
(a) Retention.--Subject to subsection (e), a person who is
absent from a position of employment by reason of the receipt
of medical treatment for a service-connected disability is
entitled to be retained by the person's employer.
(b) Seniority.--A person who is absent from employment by
reason of the receipt of medical treatment for a service-
connected disability and who is entitled to be retained by the
person's employer under subsection (a) is entitled to the
seniority and other rights and benefits determined by seniority
that the person had on the date of the commencement of such
treatment plus the additional seniority and rights and benefits
that such person would have attained if the person had remained
continuously employed.
(c) Benefits.--(1) A person who is absent from a position of
employment by reason of the receipt of medical treatment for a
service-connected disability and who is entitled to be retained
by the person's employer under subsection (a) shall be--
(A) deemed to be on furlough or leave of absence
while receiving such treatment; and
(B) entitled to such other rights and benefits not
determined by seniority as are generally provided by
the employer of the person to employees having similar
seniority, status, and pay who are on furlough or leave
of absence under a contract, agreement, policy,
practice, or plan in effect at the commencement of such
service or established while such person is so absent.
(2)(A) Subject to subparagraph (C), a person described in
subparagraph (B) is not entitled to rights and benefits under
paragraph (1)(B).
(B) A person described in this subparagraph is a person who--
(i) is absent from a position of employment by reason
of the receipt of medical treatment for a service-
connected disability; and
(ii) knowingly provides written notice of intent not
to return to a position of employment after receiving
such treatment.
(C) For the purposes of subparagraph (A), the employer shall
have the burden of proving that a person knowingly provided
clear written notice of intent not to return to a position of
employment after being absent from employment by reason of the
receipt of medical treatment and, in doing so, was aware of the
specific rights and benefits to be lost under subparagraph (A).
(3) A person deemed to be on furlough or leave of absence
under this subsection while receiving medical treatment for a
service-connected disability shall not be entitled under this
subsection to any benefits to which the person would not
otherwise be entitled if the person had remained continuously
employed.
(4) Such person may be required to pay the employee cost, if
any, of any funded benefit continued pursuant to paragraph (1)
to the extent other employees on furlough or leave of absence
are so required.
(5) The entitlement of a person to coverage under a health
plan is provided for under section 4317 of this title.
(6) The entitlement of a person to a right or benefit under
an employee pension benefit plan is provided for under section
4318 of this title.
(d) Leave.--Any person who is absent from a position of
employment with an employer by reason of the receipt of medical
treatment for a service-connected disability shall be
permitted, upon request of that person, to use during the
period during which the person is so absent, any vacation,
annual, medical, or similar leave with pay accrued by the
person before the commencement of such period. No employer may
require any such person to use vacation, annual, family,
medical, or similar leave during such period.
(e) Exceptions.--(1) An employer is not required to retain a
person under this section if--
(A) the employer's circumstances have so changed as
to make such retention impossible or unreasonable;
(B) such retention would impose an undue hardship on
the employer; or
(C) the employment from which the person is absent by
reason of the receipt of medical treatment is for a
brief, nonrecurrent period and there is no reasonable
expectation that such employment will continue
indefinitely or for a significant period.
(2) In any proceeding involving an issue of whether (A) any
retention referred to in paragraph (1) is impossible or
unreasonable because of a change in an employer's
circumstances, (B) such retention would impose an undue
hardship on the employer, or (C) the employment referred to in
paragraph (1)(C) is for a brief, nonrecurrent period and there
is no reasonable expectation that such employment will continue
indefinitely or for a significant period, the employer shall
have the burden of proving the impossibility or
unreasonableness, undue hardship, or the brief or nonrecurrent
nature of the employment without a reasonable expectation of
continuing indefinitely or for a significant period.
* * * * * * *