[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\
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \9\See RAND National Defense Research Institute, supra note 4 at 
68.
---------------------------------------------------------------------------

                        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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