[Senate Report 117-44]
[From the U.S. Government Publishing Office]
Calendar No. 154
117th Congress } { Report
SENATE
1st Session } { 117-44
_______________________________________________________________________
CIVILIAN RESERVIST EMERGENCY WORKFORCE ACT OF 2021
__________
R E P O R T
of the
COMMITTEE ON HOMELAND SECURITY AND
GOVERNMENTAL AFFAIRS
UNITED STATES SENATE
to accompany
S. 2293
TO AMEND THE ROBERT T. STAFFORD DISASTER RELIEF
AND EMERGENCY ASSISTANCE ACT TO PROVIDE CERTAIN
EMPLOYMENT RIGHTS TO RESERVISTS OF THE FEDERAL
EMERGENCY MANAGEMENT AGENCY, AND FOR OTHER PURPOSES
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
October 26, 2021.--Ordered to be printed
__________
U.S. GOVERNMENT PUBLISHING OFFICE
29-010 WASHINGTON : 2021
COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS
GARY C. PETERS, Michigan, Chairman
THOMAS R. CARPER, Delaware ROB PORTMAN, Ohio
MAGGIE HASSAN, New Hampshire RON JOHNSON, Wisconsin
KYRSTEN SINEMA, Arizona RAND PAUL, Kentucky
JACKY ROSEN, Nevada JAMES LANKFORD, Oklahoma
ALEX PADILLA, California MITT ROMNEY, Utah
JON OSSOFF, Georgia RICK SCOTT, Florida
JOSH HAWLEY, Missouri
David M. Weinberg, Staff Director
Zachary I. Schram, Chief Counsel
Christopher J. Mulkins, Director of Homeland Security
Naveed Jazayeri, Senior Professional Staff Member
Pamela Thiessen, Minority Staff Director
Andrew C. Dockham, Minority Chief Counsel and Deputy Staff Director
Clyde E. Hicks Jr., Minority Senior Professional Staff Member
Laura W. Kilbride, Chief Clerk
Calendar No. 154
117th Congress } { Report
SENATE
1st Session } { 117-44
======================================================================
CIVILIAN RESERVIST EMERGENCY WORKFORCE
ACT OF 2021
_______
October 26, 2021.--Ordered to be printed
_______
Mr. Peters, from the Committee on Homeland Security and Governmental
Affairs, submitted the following
R E P O R T
[To accompany S. 2293]
[Including cost estimate of the Congressional Budget Office]
The Committee on Homeland Security and Governmental
Affairs, to which was referred the bill (S. 2293) to amend the
Robert T. Stafford Disaster Relief and Emergency Assistance Act
to provide certain employment rights to reservists of the
Federal Emergency Management Agency, and for other purposes,
having considered the same, reports favorably thereon with an
amendment (in the nature of a substitute) and recommends that
the bill, as amended, do pass.
CONTENTS
Page
I. Purpose and Summary..............................................1
II. Background and Need for the Legislation..........................2
III. Legislative History..............................................2
IV. Section-by-Section Analysis of the Bill, as Reported.............3
V. Evaluation of Regulatory Impact..................................4
VI. Congressional Budget Office Cost Estimate........................4
VII. Changes in Existing Law Made by the Bill, as Reported............5
I. PURPOSE AND SUMMARY
S. 2293, the Civilian Reservist Emergency Workforce (CREW)
Act of 2021, amends the Robert T. Stafford Disaster Relief and
Emergency Assistance Act (Stafford Act) and the Uniformed
Services Employment and Reemployment Rights Act (USERRA) to
grant Federal Emergency Management Agency (FEMA) reservists
employment protections when they are called on to help
Americans recover from disasters. The CREW Act extends
employment protections to FEMA reservists to ensure they would
be able to keep their full-time employment while being called
to serve their country as a disaster response worker.
II. BACKGROUND AND NEED FOR THE LEGISLATION
FEMA has responded to a record number of disasters in
recent years, including brutal wildfires, record Atlantic
hurricane seasons, and the COVID-19 pandemic.\1\ FEMA relies on
its temporary, on-call reservists to help it scale up and
respond to concurrent crises.\2\ Reservists quickly deploy to
disaster areas to help administer various assistance programs
and are essential to the Agency's ability to respond quickly
and effectively to disasters.\3\ Given the variable timing of
disasters, reservists are expected to be available most of the
year and only have a limited ability to request periods of time
where they are unavailable to deploy.\4\
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\1\See, e.g., Facing Hurricane and Wildfire Seasons, FEMA Is
Already Worn Out, New York Times (May 20, 2021) (https://
www.nytimes.com/2021/05/20/climate/fema-staff-wildfires-hurricane-
season.html).
\2\See Government Accountability Office, FEMA Disaster Workforce:
Actions Needed to Address Deployment and Staff Development Challenges,
at 6 (GAO-20-360) (May 2020).
\3\See id. at 6-7.
\4\See RAND National Defense Research Institute, FEMA Reservists:
Best Practices for Managing Intermittent Workforces, at 21 (2018).
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Reservists are only paid when deployed to a disaster, and
because they are not extended any employment protections, such
as those enjoyed by the National Guard, it is difficult to
recruit and retain staff who likely cannot juggle being FEMA
reservists with full-time employment.\5\ As a result, FEMA's
reservist force has been consistently and significantly smaller
than its workforce target.\6\ The nationwide response to the
COVID-19 pandemic exacerbated this personnel shortage,
stretching the Agency's resources and making it difficult to
effectively respond to the nation's disaster relief needs.\7\
Former disaster relief officials, the Business Executives for
National Security, and several other actors have called for
reforms to address the FEMA reservist shortfall.\8\
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\5\See id. at 68.
\6\See Government Accountability Office, supra note 2, at 18.
\7\Senate Committee on Homeland Security and Governmental Affairs,
Testimony Submitted for the Record of Rear Admiral Joseph L. Nimmich,
former Deputy Administrator of the Federal Emergency Management Agency,
Hearing on Preparedness for COVID-19: The Initial Pandemic Response and
Lessons Learned, 117th Cong. (Apr. 14, 2021) (S. Hrg. 117-xx).
\8\See id.; Business Executives for National Security, Commission
on the National Response Enterprise, Findings and Recommendations of
the BENS: A Call to Action (Feb., 2021) (https://www.bens.org/file/
national-response-enterprise/CNRE-Report-February-2021.pdf); Government
Accountability Office, supra note 2; RAND National Defense Research
Institute, supra note 4.
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The CREW Act addresses this shortfall by extending the
employment protections of USERRA to FEMA reservists when they
are called to help Americans recover from a disaster. USERRA
currently covers National Guardsmen, allowing them to request
unpaid leave from their civilian jobs while serving their
country. A study by the RAND Corporation found that expanding
USERRA coverage to FEMA reservists would be critical to the
recruiting and retention of FEMA reservists and would increase
FEMA's readiness posture and ability to respond to
disasters.\9\
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\9\See RAND National Defense Research Institute, supra note 4 at
68.
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III. LEGISLATIVE HISTORY
Chairman Gary Peters (D-MI) and Ranking Member Portman (R-
OH) introduced S. 2293, the CREW Act, on June 24, 2021. The
bill was referred to the Senate Committee on Homeland Security
and Governmental Affairs. The Committee considered S. 2293 at a
business meeting on July 14, 2021. During the business meeting,
a substitute amendment was offered by Chairman Peters which
clarified which workforce protections are granted to FEMA
reservists and amended USSERA to reflect this change. The
Peters Substitute Amendment was adopted by voice vote en bloc
with Senators Peters, Hassan, Rosen, Padilla, Ossoff, Portman,
Johnson, Lankford, Romney, Scott, and Hawley present. The
Committee ordered the bill, as amended, reported favorably by
voice vote en bloc with Senators Peters, Hassan, Rosen,
Padilla, Ossoff, Portman, Johnson, Lankford, Romney, Scott, and
Hawley present.
IV. SECTION-BY-SECTION ANALYSIS OF THE BILL, AS REPORTED
Section 1. Short title
This section designates the name of the bill as the
``Civilian Reservist Emergency Workforce Act of 2021'' or the
``CREW Act.''
Section 2. Personnel Performing Service Responding to Presidentially
Declared major disasters and emergencies
This section amends Section 306 of the Stafford Act by
adding a new subsection (d) titled ``Personnel Performing
Service Responding to Disasters and Emergencies.'' There are
two paragraphs proposed within this new subsection (d):
Paragraph (1) provides USERRA protections to FEMA
Reservists who deploy to major disaster and emergency sites.
Paragraph (2) allows FEMA Reservists who deploy to major
disaster or emergency sites to claim the employment and
reemployment rights of USERRA even if they do not provide
notice of their absence from work to their employer due to the
nature of their deployment. This subsection is in line with the
``military necessity'' exception to the USERRA provision, and a
Reservist would not be required to furnish a notice of absence
to their employer for USERRA's employment and reemployment
provisions to apply.
Section 3. Extension of certain employment and reemployment rights to
FEMA Reservists
Subsection (a) makes amendments to the following
definitions: (1) adds deployment to a Presidentially declared
major disaster or emergency site as a FEMA Reservist and
service as an intermittent disaster-response appointee under
the types of ``service in the uniformed services'' that would
allow someone to claim employment and reemployment protections
under USERRA; and (2) adds FEMA Reservists serving under
Stafford Act Sec. 306(b)(1) and intermittent disaster-response
appointees to those who are considered ``uniformed services''
and consequently eligible for employment and reemployment
protections under USERRA.
Subsection (b) amends USERRA at 38 U.S.C. 4312(b) by giving
the FEMA Administrator authority for determining necessity of
preclusion from advance notice of service for Urban Search &
Rescue (US&R) task force members serving under Stafford Act
Sec. 327 and FEMA Reservists serving under Stafford Act
Sec. 306(b)(1). This subsection also gives the Secretary of
Health and Human Services authority for determining necessity
of preclusion from advance notice of service for intermittent
disaster-response appointees in a National Disaster Medical
System (NDMS) activation under Public Health Service Act
Sec. 2812(c). The references to NDMS and US&R are technical
fixes to previous enacted laws.
V. EVALUATION OF REGULATORY IMPACT
Pursuant to the requirements of paragraph 11(b) of rule
XXVI of the Standing Rules of the Senate, the Committee has
considered the regulatory impact of this bill and determined
that the bill will have no regulatory impact within the meaning
of the rules. The Committee agrees with the Congressional
Budget Office's statement that the bill contains no
intergovernmental or private-sector mandates as defined in the
Unfunded Mandates Reform Act (UMRA) and would impose no costs
on state, local, or tribal governments.
VI. CONGRESSIONAL BUDGET OFFICE COST ESTIMATE
U.S. Congress,
Congressional Budget Office,
Washington, DC, October 20, 2021.
Hon. Gary C. Peters,
Chairman, Committee on Homeland Security and Governmental Affairs, U.S.
Senate, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for S. 2293, the CREW Act.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Jon Sperl.
Sincerely,
Phillip L. Swagel,
Director.
Enclosure.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
S. 2293 would extend certain employment protections
afforded under the Uniformed Services Employment and
Reemployment Rights Act (USERRA) to people who are activated
for temporary duty by the Federal Emergency Management Agency
(FEMA) in response to disasters declared under the Robert T.
Stafford Disaster Relief and Emergency Assistance Act. FEMA
currently employs about 12,400 such reservists, who are
deployed for duty as needed.
USERRA generally requires employers to reemploy covered
personnel who serve on active duty upon their return to
civilian life and prohibits employment discrimination against
such service members. The Department of Labor's Veterans'
Employment and Training Service (VETS), in coordination with
other agencies, collaboratively enforces USERRA by
investigating claims of discrimination. Over the past five
years, the VETS program investigated an average of about 1,000
new discrimination cases each year out of an eligible
population totaling more than 1 million service members (mostly
personnel from the reserve and National Guard components of the
U.S. military, as well as a small number of FEMA employees).
Using information from VETS about the rate of claim filings
for the current USERRA population, CBO expects that extending
employment protections to additional people would increase the
number of claims, on average, by about five each year. Based on
the cost to administer the VETS program, CBO estimates
implementing the bill would cost less than $500,000 over the
2022-2026 period; such spending would be subject to the
availability of appropriated funds.
S. 2293 also would impose a mandate as defined in the
Unfunded Mandates Reform Act (UMRA) on the employers of FEMA
reservists who are activated for duty. It would expand existing
protections in law to include members who return to work after
being activated by FEMA, requiring employers to provide the
same benefits, pay, and seniority as if they had not been
activated. The bill also would expand a requirement in current
law that requires employers to treat reservists who are
activated by FEMA as furloughed employees or employees on a
leave of absence, entitling them to any compensation or
benefits otherwise available to them in that status. The cost
of the mandate would be the cost to employers who provide those
benefits and would depend on the frequency and severity of
disasters requiring activation of FEMA reservists. CBO
estimates that the cost to provide furlough benefits, such as
health insurance, to the approximately 12,400 FEMA reservists
would be well below the annual thresholds established in UMRA
for intergovernmental and private-sector mandates ($85 million
and $170 million in 2021, respectively, adjusted annually for
inflation).
The CBO staff contact for this estimate is Jon Sperl (for
federal costs) and Brandon Lever (for mandates). The estimate
was reviewed by H. Samuel Papenfuss, Deputy Director of Budget
Analysis.
VII. CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED
In compliance with paragraph 12 of rule XXVI of the
Standing Rules of the Senate, changes in existing law made by
the bill, as reported, are shown as follows: (existing law
proposed to be omitted is enclosed in brackets, new matter is
printed in italic, and existing law in which no change is
proposed is shown in roman):
UNITED STATES CODE
* * * * * * *
TITLE 38--VETERANS' BENEFITS
* * * * * * *
PART III--READJUSTMENT AND RELATED BENEFITS
* * * * * * *
CHAPTER 43--EMPLOYMENT AND REEMPLOYMENT RIGHTS OF MEMBERS OF THE
UNIFORMED SERVICES
* * * * * * *
SUBCHAPTER I--GENERAL
* * * * * * *
SEC. 4303. DEFINITIONS
For the purposes of this chapter--
(1) * * *
* * * * * * *
(13) The term ``service in the uniformed services'' means
the performance of duty on a voluntary or involuntary basis in
a uniformed service under competent authority and includes
active duty, active duty for training, initial active duty for
training, inactive duty training, full-time National Guard
duty, State active duty for a period of 14 days or more, State
active duty in response to a national emergency declared by the
President under the National Emergencies Act (50 U.S.C. 1601 et
seq.), State active duty in response to a major disaster
declared by the President under section 401 of the Robert T.
Stafford Disaster Relief and Emergency Assistance Act (42
U.S.C. 5170), a period for which a person is absent from a
position of employment for the purpose of an examination to
determine the fitness of the person to perform any such duty, a
period for which a System member of the National Urban Search
and Rescue Response System is absent from a position of
employment due to an appointment into Federal service under
section 327 of the Robert T. Stafford Disaster Relief and
Emergency Assistance Act, a period for which a person is absent
from a position of employment due to an appointment into
service in the Federal Emergency Management Agency as
intermittent personnel under section 306(b)(1) of the Robert T.
Stafford Disaster Relief and Emergency Assistance Act (42
U.S.C. 5149(b)(1)), and a period for which a person is absent
from employment for the purpose of performing funeral honors
duty as authorized by section 12503 of title 10 or section 115
of title 32.
(14) * * *
(15) * * *
(16) * * *
(17[6]) The term ``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, the commissioned officer corps of the
National Oceanic and Atmospheric Administration, System members
of the National Urban Search and Rescue Response System during
a period of appointment into Federal service under section 327
of the Robert T. Stafford Disaster Relief and Emergency
Assistance Act, intermittent personnel who are appointed into
Federal Emergency Management Agency service under section
306(b)(1) of the Robert T. Stafford Disaster Relief and
Emergency Assistance Act (42 U.S.C. 5149(b)(1)) or to train for
such service, and any other category of persons designated by
the President in time of war or national emergency.
* * * * * * *
SUBCHAPTER II--EMPLOYMENT AND REEMPLOYMENT RIGHTS AND LIMITATIONS;
PROHIBITIONS
* * * * * * *
SEC. 4312. REEMPLOYMENT RIGHTS OF PERSONS WHO SERVE IN THE UNIFORMED
SERVICES
(a) * * *
(b)(1) No notice is required under subsection (a)(1) if the
giving of such notice is precluded by military necessity or,
under all of the relevant circumstances, the giving of such
notice is otherwise impossible or unreasonable. [A
determination of military necessity for the purposes of this
subsection shall be made pursuant to regulations prescribed by
the Secretary of Defense and shall not be subject to judicial
review.]
(2) A determination of military necessity for purposes of
paragraph (1) shall be made--
(A) except as provided in subparagraphs (B)
and (C), pursuant to regulations prescribed by
the Secretary of Defense;
(B) for persons performing service to the
Federal Emergency Management Agency under
section 327 of the Robert T. Stafford Disaster
Relief and Emergency Assistance Act (42 U.S.C.
5165f) and as intermittent personnel under
section 306(b)(1) of such Act (42 U.S.C.
5149(b)(1)), by the Administrator of the
Federal Emergency Management Agency as
described in sections 327(j)(2) and 306(d)(2)
of such Act (42 U.S.C. 5165(j)(2) and
5149(d)(2)), respectively; or
(C) for intermittent disaster-response
appointees of the National Disaster Medical
System, by the Secretary of Health and Human
Services as described in section 2812(d)(3)(B)
of the Public Health Service Act (42 U.S.C.
300hh-11(d)(3)(B)).
(3) A determination of military necessity under paragraph
(1) shall not be subject to judicial review.
* * * * * * *
TITLE 42--THE PUBLIC HEALTH AND WELFARE
* * * * * * *
CHAPTER 68--DISASTER RELIEF
* * * * * * *
SUBCHAPTER III--MAJOR DISASTER AND EMERGENCY ASSISTANCE ADMINISTRATION
* * * * * * *
SEC. 5149. PERFORMANCE OF SERVICES
(a) * * *
(b) * * *
(c) * * *
(d) Personnel Performing Service Responding to Disasters
and Emergencies.--
(1) USERRA employment and reemployment rights.--The
protections, rights, benefits, and obligations provided
under chapter 43 of title 38, United States Code, shall
apply to intermittent personnel appointed pursuant to
subsection (b)(1) to perform service to the Federal
Emergency Management Agency under sections 401 and 501
or to train for such service.
(2) Notice of absence from position of employment.--
Preclusion of giving notice of service by necessity of
service under subsection (b)(1) to perform service to
the Federal Emergency Management Agency under sections
401 and 501 or to train for such service shall be
considered preclusion by `military necessity' for
purposes of section 4312(b) of title 38, United States
Code, pertaining to giving notice of absence from a
position of employment. A determination of such
necessity shall be made by the Administrator and shall
not be subject to review in any judicial or
administrative proceeding.
* * * * * * *
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