[Federal Register Volume 60, Number 170 (Friday, September 1, 1995)]
[Rules and Regulations]
[Pages 45650-45658]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-21571]



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OFFICE OF PERSONNEL MANAGEMENT
5 CFR Parts 353, 870, and 890

RIN 3206-AG02


Restoration to Duty From Uniformed Service or Compensable Injury

AGENCY: Office of Personnel Management.

ACTION: Interim regulations with request for written comments.

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SUMMARY: The Office of Personnel Management (OPM) is issuing interim 
regulations on the restoration rights of Federal employees who leave 
their employment to perform duty with the uniformed services. These 
regulations implement the Uniformed Services Employment and 
Reemployment Rights Act of 1994 (USERRA), Public Law 103-353, which was 
enacted into law on October 13, 1994. The new law revises and 
restructures the Veteran's Reemployment Rights law (codified in chapter 
43 of title 38, United States Code), which governs the restoration 
rights of employees who perform military duty. USERRA clarifies, 
expands, and strengthens the rights and benefits of applicants and 
employees, alters the appeal procedures available to Federal employees, 
and, for the first time, provides Federal employees Department of Labor 
assistance in processing claims. USERRA also requires OPM to place 
certain returning employees when their former agencies determine that 
it is ``impossible or unreasonable'' to reemploy them.
    Although the sections have been renumbered, and in some cases 
renamed, there is no substantive change in the regulations governing 
the restoration rights of employees who sustain compensable injuries. 
However, in Sec. 353.301(a), the word ``may'' has been changed to 
``must'' to make clear that an agency must place an employee who fully 
recovers from a compensable injury within 1 year, even if it means 
placing the person in a different location. Also, Sec. 353.301(d) makes 
clear that partially recovered employees are entitled to restoration 
rights only in the local commuting area, not agencywide. (This 
provision was inadvertently omitted from the final regulations 
published in the Federal Register on January 13, 1995, that 
incorporated into the regulations various staffing provisions 
previously found only in the Federal Personnel Manual.)
    These interim regulations also implement provisions that expand on 
the coverage of the affected employees under the Federal Employees' 
Group Life Insurance (FEGLI) Program and the Federal Employees Health 
Benefits (FEHB) Program. Both the FEGLI and the FEHB regulations are 
amended to show that employees who separate to perform military service 
under the provisions of this Act are considered to be employees in 
nonpay status. The FEHB regulations are further amended to show that 
FEHB coverage may continue for up to 18 months after the employee 
enters military service.

DATES: Effective: September 1, 1995. Comments must be received on or 
before November 30, 1995.

ADDRESS: Send or deliver comments to: Leonard R. Klein, Associate 
Director for Employment, U.S. Office of Personnel Management, 1900 E 
Street, NW., Washington, DC 20415.

FOR FURTHER INFORMATION CONTACT: For part 353: Raleigh M. Neville, 
(202) 606-

[[Page 45651]]
0830. For parts 870 and 890: Margaret Sears (202) 606-0004.

SUPPLEMENTARY INFORMATION: The job rights of employees who leave their 
employment to perform military duty have been protected under the 
Veterans' Reemployment Rights Act (chapter 43 of title 38, United 
States Code) since 1940. However, this law had become a confusing 
patchwork of statutory amendments, which, over the years, had been 
interpreted by over one thousand different (and sometimes conflicting) 
court decisions. It became increasingly difficult for employers and 
employees to understand their respective rights and responsibilities.
    Thus, on October 13, 1994, President Clinton signed into law the 
new Uniformed Services Employment and Reemployment Rights Act of 1994 
(USERRA), Pub. L. 103-353. The new law completely rewrites the existing 
provisions of title 38, United States Code, governing the rights of 
employees who perform military duty and makes many substantive changes 
that will affect employees, agencies, and OPM.
    Among the important changes made by the new law are the following:
    --Coverage is broader. USERRA covers persons who perform duty in 
the ``uniformed services.'' (Under the old law, coverage was limited to 
the ``armed forces.'') It also covers all employees except those 
serving in positions where there is ``no reasonable expectation that 
employment will continue indefinitely or for a reasonable period.'' 
(The old law specifically excluded temporary service.) The interim 
regulations provide that all employees are covered. However, an 
employee on a time-limited appointment who enters uniformed service 
serves out any remaining unexpired portion of the appointment upon his 
or her return.
    --Intelligence agencies are treated differently under the law. 
Although employees in these agencies (CIA, FBI, NSA, etc.) have 
substantially the same rights as other Federal employees under the law, 
they are not subject to OPM's regulations and do not have the same 
appeal rights as other employees.
    --There is a 5-year cumulative total on uniformed service. For the 
first time, the law makes clear that it is intended to protect 
``noncareer'' service and establishes a 5-year cumulative total on 
uniformed service. (Under the interpretations applied to the old law, a 
Federal employee could be absent on military duty for up to 4 years at 
a time and there was no cumulative limit.) However, there are important 
exceptions to the 5-year limit. These include initial enlistments 
lasting more than 5 years, periodic training duty, and involuntary 
active duty extensions and recalls. The new law expressly provides that 
an employee's job protections do not depend on the timing, frequency, 
or duration of uniformed service.
    --Enhanced protections for disabled veterans. Agencies must make 
reasonable efforts to accommodate the disability. Servicemembers 
convalescing from injuries received during service now have up to 2 
years to return to their jobs (as opposed to 1 year under the old law).
    --New skills training required for some veterans. As under the old 
law, USERRA provides that returning servicemembers be reemployed in the 
job they would have attained had they not been absent for military 
service (the longstanding ``escalator'' principle). However, the new 
law also requires that reasonable efforts be made (such as training or 
retraining) that would enable returning servicemembers to refresh or 
upgrade their skills so that they might qualify for reemployment.
    --The position to which the person has restoration rights is now 
determined by how long the employee has been gone. If the period of 
military duty is less than 91 days, the employee is entitled to the 
position he or she would have attained had the absence not occurred. If 
the military duty lasts more than 90 days, the person's entitlement is 
essentially the same except that he or she may be placed in an 
equivalent position. (Under the old law, restoration rights were based 
largely on the kind of military duty performed, for example, active 
duty, active duty for training, inactive duty, etc.)
    --Similarly, the length of time an employee has to report back for 
duty following uniformed service is now determined by how long he or 
she has been gone. If the absence was for less than 31 days, the 
employee must return at the beginning of the next regularly scheduled 
work period on the first full day after release from service, taking 
account safe travel home plus an 8 hour rest period. For service of 
more than 30 days but less than 181 days, the employee must submit an 
application for restoration within 14 days of release from service. For 
service of more than 180 days, an application for restoration must be 
submitted within 90 days of release from service. Failure to return 
within these time limits does not mean that restoration rights are 
forfeited; it only means the agency can take whatever disciplinary 
action it would normally take for unexcused absences. (Under the old 
law, the length of time an employee had to apply for restoration was 
determined by the type of military duty performed.)
    --Notice requirement. For the first time, the law requires that 
servicemembers provide advance written or verbal notice to their 
agencies for all military service. (Under the old law, notice was 
required only for training duty.)
    --Appeal rights have changed. Federal employees and applicants with 
complaints under the new law may now seek assistance from the 
Department of Labor's Veterans' Employment and Training Service (VETS). 
VETS will attempt to informally resolve any disputes with the agency 
over military duty. If informal resolution fails, Labor will refer the 
case to the Office of the Special Counsel which is authorized to 
represent the employee before the Merit Systems Protection Board. 
Alternatively, an employee may still elect to appeal directly to MSPB 
and by-pass Labor and the Special Counsel.
    --Special placement provisions are mandated for certain returning 
employees when their former agencies are unable to reemploy them. The 
new law requires OPM to place in the executive branch the following 
categories of employees when their former agencies determine that it is 
``impossible or unreasonable'' to reemploy them:
    (1) Executive branch employees whose agencies no longer exist and 
the functions have not been transferred, or it is otherwise impossible 
or unreasonable to reemploy the person;
    (2) Legislative and judicial branch employees;
    (3) National Guard technicians; and
    (4) Employees of the intelligence agencies.
    The interim regulations specify how this will be carried out.
    --Status while absent. While on duty with the uniformed services, 
an employee is considered to be on a leave of absence (leave without 
pay) unless the employee elects to use other leave.
    --Nondiscrimination. USERRA broadens the nondiscrimination 
provisions of the old law and expressly forbids any discrimination in 
employment or proportion because of uniformed service.
    --Enhanced health and pension plan coverage. Employees performing 
military duty of more than 30 days may elect to continue their health 
benefit coverage for up to 18 months. Also under USERRA, to receive 
retirement credit for military service, employees under the Federal 
Employees Retirement System (FERS) are required to pay only what they 
would have paid had they not gone on military duty. 

[[Page 45652]]
USERRA also expands retirement coverage to include all full-time 
National Guard duty if that duty interrupts creditable civilian service 
and is followed by reemployment that occurs after August 1, 1990. (Only 
National Guard service performed for the U.S. was covered under the old 
law.)
    Under 38 U.S.C. 4316, employee benefits, other than health 
benefits, continue for employees covered by this Act in the same way as 
they do for other employees who are on leave without pay. Employees who 
leave their jobs to enter the uniformed services are considered to be 
employees on leave without pay so long as they meet the requirements 
for reemployment under this Act. Under the Federal Employees' Group 
Life Insurance (FEGLI) Program, employees may continue their life 
insurance coverage for up to 12 months in nonpay status at no cost to 
the employee. Therefore, the interim regulations amend 5 CFR 870.502 to 
show that an employee who separates from Federal service to enter the 
uniformed services is considered to be an employee in nonpay status for 
so long as the employee remains eligible for benefits under 38 U.S.C. 
4316. As a result, life insurance coverage continues for up to one year 
for employees who do not separate, but go on military furloughs (nonpay 
status). For those who actually separate from their Federal jobs to 
enter the uniformed services, life insurance coverage continues for up 
to 12 months or until a date that is 90 days after the service with the 
uniformed services ends, whichever is earlier.
    Under 38 U.S.C. 4317, employees who are covered by an employers' 
group health plan and who enter the uniformed services may elect to 
continue their coverage for up to 18 months after the date the absence 
to serve in the uniformed services begins. If the service continues for 
more than 30 days, the employee can be charged up to 102 percent of the 
premium. The Federal Employees Health Benefits (FEHB) law provides for 
continued coverage for up to 12 months for employees in leave without 
pay status. FEHB regulations provide that these employees may pay their 
respective shares of the premium; however, an employee may choose to 
incur a debt and postpone payment until he or she returns to pay and 
duty status. The employing agency must pay the Government contribution 
on a current basis. Therefore, for the first 12-months, employees 
entitled to benefits under 38 U.S.C. 4317 are charged only the employee 
share of the premium.
    The interim regulations amend Secs. 890.303 and 890.304 to provide 
that the enrollment of an employee who enters on military furlough 
(nonpay status) may continue an additional 6 months after the coverage 
would otherwise stop due to the expiration of 365 days in nonpay status 
if the employee's eligibility for benefits under 38 U.S.C. 4317 
continues. The enrollment of an employee who separates to enter the 
uniformed services may continue for up to 18 months if the employee's 
eligibility for benefits under 38 U.S.C. 4317 continues. (Eligibility 
for benefits under 38 U.S.C. 4317 ends the earlier of 18 months after 
the date the employee's absence due to service in the uniformed 
services began or 90 days after the service ends.) Employees on 
military furlough or in nonpay status to serve in the uniformed 
services on the date of enactment of Pub. L. 103-353, October 13, 1994, 
are also entitled to continued coverage under 38 U.S.C. 4317 for the 
balance of the 18-month period after their absence to enter the 
uniformed services began. An enrollment that had already terminated due 
to the expiration of 365 days in nonpay status may be reinstated for 
the balance of the 18-month period.
    The interim regulations also amend 5 CFR 890.502(g) to provide that 
employees whose enrollment continues beyond 12 months in nonpay status 
because of their eligibility for benefits under 38 U.S.C. 4317 must pay 
102 percent of the premium (the employee share plus the Government 
share, plus 2 percent of the total). In addition, the interim 
regulations amend the provision for waiving the employee share of the 
health benefits premium for employees who enter the uniformed services 
in support of Operations Desert Shield and/or Desert Storm by limiting 
its application to those who enter before the effective date of these 
interim regulations.
    --Enhanced thrift savings plan coverage. The new law allows 
employees to make up contributions to the thrift savings plan missed 
because of military duty. Under the old law, employees who went on 
military duty were ineligible to make contributions to the thrift 
savings plan. (The Federal Retirement Thrift Investment Board is 
issuing regulations on this aspect of the law.)
    --Effective date. The new law applies to restorations effected on 
or after December 12, 1994.

Waiver of Notice of Proposed Rulemaking

    Pursuant to 5 U.S.C. 553(b)(3)(B), I find that good cause exists 
for waiving the general notice of proposed rulemaking. Specifically, 
the law which these regulations implement was enacted in October 1994 
and became fully effective as of December 12, 1994.

Regulatory Flexibility Act

    I certify that this regulation will not have a significant impact 
on a substantial number of small entities because it pertains only to 
Federal employees and agencies.

List of Subjects

5 CFR Part 353

    Administrative practice and procedure, Government employees.
5 CFR Part 870

    Administrative practice and procedure, Government employees, 
Hostages, Iraq, Kuwait, Lebanon, Life insurance, Retirement.

5 CFR Part 890

    Administrative practice and procedure, Government employees, Health 
facilities, Health insurance, Health professions, Hostages, Iraq, 
Kuwait, Lebanon, Reporting and recordkeeping requirements, Retirement.

Office of Personnel Management,
James B. King,
Director.
    Accordingly, OPM is amending parts 353, 870, and 890 as follows:
    1. Part 353 is revised to read as follows:

PART 353--RESTORATION TO DUTY FROM UNIFORMED SERVICE OR COMPENSABLE 
INJURY

Subpart A--General Provisions

Sec.
353.101  Scope.
353.102  Definitions.
353.103  Persons covered.
353.104  Notification of rights and obligations.
353.105  Maintenance of records.
353.106  Personnel actions during employee's absence.
353.107  Service credit upon reemployment.
353.108  Effect of performance and conduct on restoration rights.
353.109  Transfer of function to another agency.
353.110  OPM placement assistance.

Subpart B--Uniformed Service

353.201  Introduction.
353.202  Discrimination and acts of reprisal prohibited.
353.203  Length of service.
353.204  Notice to employer.
353.205  Return to duty and application for reemployment.
353.206  Documentation upon return.
353.207  Position to which restored.

[[Page 45653]]

353.208  Use of paid leave during uniformed service.
353.209  Retention protections.
353.210  Department of Labor assistance to applicants and employees.
353.211  Appeal rights.

Subpart C--Compensable Injury

353.301  Restoration rights.
353.302  Retention protections.
353.303  Restoration rights of TAPER employees.
353.304  Appeals to the Merit Systems Protection Board.

    Authority: 38 U.S.C. 4301 et. seq., and 5 U.S.C. 8151.

Subpart A--General Provisions


Sec. 353.101  Scope.

    The rights and obligations of employees and agencies in connection 
with leaves of absence or restoration to duty following uniformed 
service under 38 U.S.C. 4301 et. seq., and restoration under 5 U.S.C. 
8151 for employees who sustain compensable injuries, are subject to the 
provisions of this part. Subpart A covers those provisions that are 
common to both of the above groups of employees. Subpart B deals with 
provisions that apply just to uniformed service and subpart C covers 
provisions that pertain just to injured employees.


Sec. 353.102  Definitions.

    In this part:
    Agency means.
    (1) With respect to restoration following a compensable injury, any 
department, independent establishment, agency, or corporation in the 
executive branch, including the U.S. Postal Service and the Postal Rate 
Commission, and any agency in the legislative or judicial branch; and
    (2) With respect to uniformed service, an executive agency as 
defined in 5 U.S.C. 105 (other than an intelligence agency referred to 
in 5 U.S.C. 2302(a)(2)(C)(ii), including the U.S. Postal Service and 
Postal Rate Commission, a nonappropriated fund instrumentality of the 
United States, or a military department as defined in 5 U.S.C. 102. In 
the case of a National Guard technician employed under 32 U.S.C. 709, 
the employing agency is the adjutant general of the State in which the 
technician is employed.
    Fully recovered means compensation payments have been terminated on 
the basis that the employee is able to perform all the duties of the 
position he or she left or an equivalent one.
    Injury means a compensable injury sustained under the provisions of 
5 U.S.C. chapter 81, subchapter 1, and includes, in addition to 
accidental injury, a disease proximately caused by the employment.
    Leave of absence means military leave, annual leave, without pay 
(LWOP), furlough, continuation of pay, or any combination of these.
    Military leave means paid leave provided to Reservists and members 
of the National Guard under 5 U.S.C. 6323.
    Notice means any written or verbal notification of an obligation or 
intention to perform service in the uniformed services provided to an 
agency by the employee performing the service or by the uniformed 
service in which the service is to be performed.
    Partially recovered means an injured employee, though not ready to 
resume the full range of his or her regular duties, has recovered 
sufficiently to return to part-time or light duty or to another 
position with less demanding physical requirements. Ordinarily, it is 
expected that a partially recovered employee will fully recover 
eventually.
    Physically disqualified means that:
    (1)(i) For medical reasons the employee is unable to perform the 
duties of the position formerly held or an equivalent one, or
    (ii) There is a medical reason to restrict the individual from some 
or all essential duties because of possible incapacitation (for 
example, a seizure) or because of risk of health impairment (such as 
further exposure to a toxic substance for an individual who has already 
shown the effects of such exposure).
    (2) The condition is considered permanent with little likelihood 
for improvement or recovery.
    Reasonable efforts in the case of actions required by an agency for 
a person returning from uniformed service means actions, including 
training, that do not place an undue hardship on the agency.
    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, and a period for which a person is absent from employment 
for the purpose of examination to determine fitness to perform such 
duty.
    Status means the particular attributes of a specific position. This 
includes the rank or responsibility of the position, its duties, 
working conditions, pay, tenure, and seniority.
    Undue hardship means actions taken by an agency requiring 
significant difficulty or expense, when considered in light of--
    (1) The nature and cost of actions needed under this part;
    (2) The overall financial resources of the facility involved in 
taking the action; the number of persons employed at the facility; the 
effect on expenses and resources, or the impact otherwise of the action 
on the operation of the facility; and
    (3) The overall size of the agency with respect to the number of 
employees, the number, type, and location of its facilities and type of 
operations, including composition, structure, and functions of the work 
force.
    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 emergency.


Sec. 353.103  Persons covered.

    (a) The provisions of this part pertaining to service in the 
uniformed services cover each agency employee who enters into such 
service. However, an employee serving under a time-limited appointment 
completes any unexpired portion of his or her appointment upon return 
from uniformed service.
    (b) The provisions of this part concerning employee injury cover a 
civil officer or employee in any branch of the Government of the United 
States, including an officer or employee of an instrumentally wholly 
owned by the United States, who was separated or furloughed from an 
appointment without time limitation, or from a temporary appointment 
pending establishment of a register (TAPER) as a result of a 
compensable injury; but do not include--
    (1) A commissioned officer of the Regular Corps of the Public 
Health Service;
    (2) A commissioned officer of the Reserve Corps of the Public 
Health Service on active duty; or
    (3) A commissioned officer of the National Oceanic and Atmospheric 
Administration.


Sec. 353.104  Notification of rights and obligations.

    When an agency separates, grants a leave of absence, restores or 
fails to restore an employee because of uniformed service or 
compensable injury, it shall notify the employee of his or her rights, 
obligations, and benefits relating to Government employment, including 
any appeal and grievance rights. However, regardless of notification, 
an employee is still required to exercise due diligence in 

[[Page 45654]]
ascertaining his or her rights, and to seek reemployment within the 
time limits provided by chapter 43 of title 38, United States Code, for 
restoration after uniformed service, or as soon as he or she is able 
after a compensable injury.


Sec. 353.105  Maintenance of records.

    Each agency shall identify the position vacated by an employee who 
is injured or leaves to enter uniformed service. It shall also maintain 
the necessary records to ensure that all such employees are preserved 
the rights and benefits granted by law and this part.


Sec. 353.106  Personnel actions during employee's absence.

    (a) An employee absent because of service in the uniformed services 
is to be carried on leave without pay unless the employee elects to use 
other leave or freely and knowingly provides written notice of intent 
not to return to a position of employment with the agency, in which 
case the employee can be separated. (Note: A separation under this 
provision affects only the employee's seniority while gone; it does not 
affect his or her restoration rights.)
    (b) An employee absent because of compensable injury may be carried 
on leave without pay or separated unless the employee elects to use 
sick or annual leave.
    (c) Agency promotion plans must provide a mechanism by which 
employees who are absent because of compensable injury or uniformed 
service can be considered for promotion.


Sec. 353.107  Service credit upon reemployment.

    Upon reemployment, an employee absent because of uniformed service 
or compensable injury is generally entitled to be treated as though he 
or she had never left. This means that a person who is reemployed 
following uniformed service or full recovery from compensable injury 
receives credit for the entire period of the absence for purposes of 
rights and benefits based upon seniority and length of service, 
including within-grade increases, career tenure, completion of 
probation, leave rate accrual, and severance pay.


Sec. 353.108  Effect of performance and conduct on restoration rights.

    The laws covered by this part do not permit an agency to circumvent 
the protections afforded by other laws to employees who face the 
involuntary loss of their positions. Thus, an employee may not be 
denied restoration rights because of poor performance or conduct that 
occurred prior to the employee's departure for compensable injury or 
uniformed service. However, separation for cause that is substantially 
unrelated to the injury or to the performance of uniformed service 
negates restoration rights. Additionally, if during the period of 
injury or uniformed service the employee's conduct is such that it 
would disqualify him or her for employment under OPM or agency 
regulations, restoration rights may be denied.


Sec. 353.109  Transfer of function to another agency.

    If the function of an employee absent because of uniformed service 
or compensable injury is transferred to another agency, and if the 
employee would have been transferred with the function under part 351 
of this chapter had he or she not been absent, the employee is entitled 
to be placed in a position in the gaining agency that is equivalent to 
the one he or she left. It shall also assume the obligation to restore 
the employee in accordance with law and this part.


Sec. 353.110  OPM placement assistance.

    (a) Employee returning from uniformed service. (1) OPM will offer 
placement in the executive branch to the following categories of 
employees upon notification by the agency and application by the 
employee: (Such notification should be sent to the Associate Director 
for Employment, OPM, 1900 E Street, NW., Washington, DC 20415.)
    (i) Executive branch employees (other than an employee of an 
intelligence agency) when OPM determines that:
    (A) their agencies no longer exist and the functions have not been 
transferred, or;
    (B) it is otherwise impossible or unreasonable for their former 
agencies to place them;
    (ii) Legislative and judicial branch employees when their employers 
determine that it is impossible or unreasonable to reemploy them;
    (iii) National Guard technicians when the Adjutant General of a 
State determines that it is impossible or unreasonable to reemploy 
them; and
    (iv) Employees of the intelligence agencies (defined in 5 U.S.C. 
2302(a)(2)(C)(ii)) when their agencies determine that it is impossible 
or unreasonable to reemploy them.
    (2) OPM will determine if a vacant position equivalent (in terms of 
pay, grade, and status) to the one time the individual left exists, for 
which the individual is qualified, in the commuting area in which he or 
she was employed immediately before entering the uniformed services. If 
such a vacancy exists, OPM will order the agency to place the 
individual. If no such position is available, the individual may elect 
to be placed in a lesser position in the commuting area, or OPM will 
attempt to place the individual in an equivalent position in another 
geographic location determined by OPM. If the individual declines an 
offer of equivalent employment, he or she has no further restoration 
rights.
    (b) Employee returning from compensable injury. OPM will provide 
placement assistance to an employee with restoration rights in the 
executive, legislative, or judicial branches who cannot be placed in 
his or her former agency and who either has competitive status or is 
eligible to acquire it under 5 U.S.C. 3304(C). If the employee's agency 
is abolished and its functions are not transferred, or it is not 
possible for the employee to be restored in his or her former agency, 
OPM will provide placement assistance by enrolling the employee in 
OPM's Interagency Placement Program (or its successor) under part 330 
of this chapter. This paragraph does not apply to an employee serving 
under a temporary appointment pending establishment of a register 
(TAPER).

Subpart B--Uniformed Service


Sec. 353.201  Introduction.

    The Uniformed Services Employment and Reemployment Rights Act of 
1994 revised and strengthened the existing Veterans' Reemployment 
Rights law, made the Department of Labor responsible for investigating 
employee complaints, required OPM to place certain returning employees 
in other agencies, established a separate restoration rights program 
for employees of the intelligence agencies, and altered the appeals 
rights process. The new law applies to persons exercising restoration 
rights on or after December 12, 1994.


Sec. 353.202  Discrimination and acts of reprisal prohibited.

    A person who seeks or holds a position in the Executive branch may 
not be denied hiring, retention in employment, or any other incident or 
advantage of employment because of any application, membership, or 
service in the uniformed services. Furthermore, an agency may not take 
any reprisal against an employee for taking any action to enforce a 
protection, assist or participate in an investigation, or exercise any 
right provided for under chapter 43 of title 38, United States Code.

[[Page 45655]]



Sec. 353.203  Length of service.

    (a) Counting service after the effective date of USERRA (12/12/94). 
To be entitled to restoration rights under this part, cumulative 
service in the uniformed services while employed by the Federal 
Government may not exceed 5 years. However, the 5-year period does not 
include any service--
    (1) That is required beyond 5 years to complete an initial period 
of obligated service;
    (2) During which the individual was unable to obtain orders 
releasing him or her from service in the uniformed services before 
expiration of the 5-year period, and such inability was through no 
fault of the individual;
    (3) Performed as required pursuant to 10 U.S.C. 10147, under 32 
U.S.C. 502(a) or 503, or to fulfill additional training requirements 
determined and certified in writing by the Secretary of the military 
department concerned to be necessary for professional development or 
for completion of skill training or retraining;
    (4) Performed by a member of a uniformed service who is:
    (i) Ordered to or retained on active duty under sections 12301(a), 
12301(g), 12302, 12304, 12305, or 688 of title 10, United States Code, 
or under 14 U.S.C. 331, 332, 359, 360, 367, or 712;
    (ii) Ordered to or retrained on active duty (other than for 
training) under any provision of law during a war or during a national 
emergency declared by the President or the Congress;
    (iii) Ordered to active duty (other than for training) in support, 
as determined by the Secretary of the military department concerned, of 
an operational mission for which personnel have been ordered to active 
duty under 10 U.S.C. 12304;
    (iv) Ordered to active duty in support, as determined by the 
Secretary of the military department concerned, of a critical mission 
or requirement of the uniformed services, or
    (iv) Called into Federal service as a member of the National Guard 
under chapter 15 or under section 12406 of title 10, United States 
Code.
    (b) Counting service prior to the effective date of USERRA. In 
determining the 5-year total that may not be exceeded for purposes of 
exercising restoration rights, service performed prior to December 12, 
1994, is considered only to the extent that it would have counted under 
the previous law (the Veterans' Reemployment Rights statute). For 
example, the service of a National Guard technician who entered on an 
Active Guard Reserve (AGR) tour under section 502(f) of title 32, 
United States Code, was not counted toward the 4-year time limit under 
the previous statute because it was specifically considered active duty 
for training. However, title 32, section 502(f) AGR service is not 
exempt from the cumulative time limits allowed under USERRA and service 
after the effective date counts under USERRA rules. Thus, if a 
technician was on a 32 U.S.C. 502(f) AGR tour on October 13, 1994, (the 
date USERRA was signed into law), but exercised restoration rights 
after December 11, 1994, (the date USERRA became fully effective), AGR 
service prior to December 12 would not count in computing the 5-year 
total, but all service beginning with that date would count.
    (c) Nature of Reserve service and resolving conflicts. An employee 
who is a member of the Reserve or National Guard has a dual 
obligation--to the military and to his or her employer. Given the 
nature of the employee's service obligation, some conflict with job 
demands is often unavoidable and a good-faith effort on the part of 
both the employee and the agency is needed to minimize conflict and 
resolve differences. Some accommodation may be necessary by both 
parties. Most Reserve component members are required, as a minimum, to 
participate in drills for 2 days each month and in 2 weeks of active 
duty for training per year. But some members are required to 
participate in longer or more frequent training tours. USERRA makes it 
clear that the timing, frequency, duration, and nature of the duty 
performed is not an issue so long as the employee gave proper notice, 
and did not exceed the time limits specified. However, to the extent 
that the employee has influence upon the timing, frequency, or duration 
of such training or duty, he or she is expected to use that influence 
to minimize the burden upon the agency. The employee is expected to 
provide the agency with as much advance notice as possible whenever 
military duty or training will interfere with civilian work. When a 
conflict arises between the Reserve duty and the legitimate needs of 
the employer, the agency may contact appropriate military authorities 
to express concern. Where the request would require the employee to be 
absent from work for an extended period, during times of acute need, or 
when, in light of previous leaves, the requested leave is cumulatively 
burdensome, the agency may contact the military commander of the 
employee's military unit to determine if the military duty could be 
rescheduled or performed by another member. If the military authorities 
determine that the military duty cannot be rescheduled or cancelled, 
the agency is required to permit the employee to perform his or her 
military duty.
    (d) Mobilization authority. By law, members of the Selected Reserve 
(a component of the Ready Reserve), can be called up under a 
presidential order for purposes other than training for as long as 270 
days. If the President declares a national emergency, the remainder of 
the Ready Reserve--the Individual Ready Reserve and the Inactive 
National Guard--may be called up. The Ready Reserve as a whole is 
subject to as much as 24 consecutive months of active duty in a 
national emergency declared by the President.


Sec. 353.204  Notice to employer.

    To be entitled to restoration rights under this part, an employee 
(or an appropriate officer of the uniformed service in which service is 
to be performed) must give the employer advance written or verbal 
notice of the service except that no notice is required if it is 
precluded by military necessity or, under all relevant circumstances, 
the giving of notice is otherwise impossible or unreasonable.


Sec. 353.205  Return to duty and application for reemployment.

    Periods allowed for return to duty are based on the length of time 
the person was performing service in the uniformed services, as 
follows:
    (a) An employee whose uniformed service was for less than 31 days, 
or who was absent for the purpose of an examination to determine 
fitness for the uniformed services, is required to report back to work 
not later than the beginning of the first regularly scheduled work day 
on the first full calendar day following completion of the period of 
service and the expiration of 8 hours after a period allowing for the 
safe transportation of the employee from the place of service to the 
employee's residence, or as soon as possible after the expiration of 
the 8-hour period if reporting within the above period is impossible or 
unreasonable through no fault of the employee.
    (b) If the service was for more than 30 but less than 181 days, the 
employee must submit an application for reemployment with the agency 
not later than 14 days after completing the period of service. (If 
submitting the application is impossible or unreasonable through no 
fault of the individual, it must be submitted the next full calendar 
day when it becomes possible to do so.)
    (c) If the period of service was for more than 180 days, the 
employee must submit an application for reemployment 

[[Page 45656]]
not later than 90 days after completing the period of service.
    (d) An employee who is hospitalized or convalescing from an injury 
or illness incurred in, or aggravated during uniformed service is 
required to report for duty at the end of the period that is necessary 
for the person to recover, based on the length of service as discussed 
in paragraphs (a), (b), and (c) of this section, except that the period 
of recovery may not exceed 2 years (extended by the minimum time 
required to accommodate circumstances beyond the employee's control 
which make reporting within the period specified impossible or 
unreasonable).
    (e) A person who does not report within the time limits specified 
does not automatically forfeit restoration rights, but, rather, is 
subject to whatever policy and disciplinary action the agency would 
normally apply for a similar absence without authorization.


Sec. 353.206  Documentation upon return.

    Upon request, a returning employee who was absent for more than 30 
days, or was hospitalized or convalescing from an injury or illness 
incurred in or aggravated during the performance of service in the 
uniformed services, must provide the agency with documentation that 
establishes the timeliness of the application for reemployment, and 
length and character of service. If documentation is unavailable, the 
agency must restore the employee until documentation becomes available.


Sec. 353.207  Position to which restored.

    (a) Timing. An employee returning from the uniformed services 
following an absence of more than 30 days is entitled to be restored as 
soon as possible after making application, but in no event later than 
30 days after receipt of the application by the agency.
    (b) Nondisabled. If the employee's uniformed service was for less 
than 91 days, he or she must be employed in the position for which 
qualified that he or she would have attained if continuously employed. 
If not qualified for this position after reasonable efforts by the 
agency to qualify the employee, he or she is entitled to be placed in 
the position he or she left. For service of 91 days or more, the agency 
has the option of placing the employee in a position of like seniority, 
status, and pay. (Note: Upon reemployment, a term employee completes 
the unexpired portion of his or her original appointment.) If 
unqualified (for any reason other than disability incurred in or 
aggravated during service in the uniformed services) after reasonable 
efforts by the agency to qualify the employee for such position or the 
position the employee left, he or she must be restored to any other 
position of lesser status and pay for which qualified, with full 
seniority.
    (c) Disabled. An employee with a disability incurred in or 
aggravated during uniformed service and who, after reasonable efforts 
by the agency to accommodate the disability, is entitled to be placed 
in another position for which qualified that will provide the employee 
with the same seniority, status, and pay, or the nearest approximation 
consistent with the circumstances in each case. The agency is not 
required to reemploy a disabled employee if, after making due efforts 
to accommodate the disability, such reemployment would impose an undue 
hardship on the agency.
    (d) Two or more persons entitled to restoration in the same 
position. If two or more persons are entitled to restoration in the 
same position, the one who left the position first has the prior right 
to restoration in that position. The other employee(s) is entitled to 
be placed in a position as described in paragraphs (b) and (c) of this 
section.
    (e) Relationship to an entitlement based on veterans' preference. 
An employee's right to restoration under this part does not entitle the 
person to retention, preference, or displacement rights over any person 
with a superior claim based on veterans' preference.


Sec. 353.208  Use of paid leave during uniformed service.

    An employee performing service with the uniformed services must be 
6permitted, upon request, to use any accrued annual leave (or sick 
leave, if appropriate), or military leave during such service. (Note, 
however, that under 5 U.S.C. 6323, military leave cannot be used for 
inactive duty, e.g., drills.)


Sec. 353.209  Retention protections.

    (a) During uniformed service. An employee may not be demoted or 
separated (other than military separation) while performing duty with 
the uniformed services except for cause. (Reduction in force is not 
considered ``for cause'' under this subpart.) He or she is not a 
``competing employee'' under Sec. 351.404 of this chapter. If the 
employee's position is abolished during such absence, the agency must 
reassign the employee to another position of like status, and pay.
    (b) Upon reemployment. Except in the case of an employee under 
time-limited appointment who finishes out the unexpired portion of his 
or her appointment upon reemployment, an employee reemployed under this 
subpart may not be discharged, except for cause--
    (1) If the period of uniformed service was more than 180 days, 
within 1 year; and
    (2) If the period of uniformed service was more than 30 days, but 
less than 181 days, within 6 months.


Sec. 353.210  Department of Labor assistance to applicants and 
employees.

    USERRA requires the Department of Labor's Veterans' Employment and 
Training Service (VETS) to provide employment and reemployment 
assistance to any Federal employee or applicant who requests it. VETS 
staff will attempt to informally resolve employment disputes brought to 
them. If informal dispute resolution proves unsuccessful, VETS may ask 
the Office of the Special Counsel to represent the individual in an 
appeal before the Merit Systems Protection Board (MSPB).


Sec. 353.211  Appeal rights.

    An individual who believes an agency has not complied with the 
provisions of law and this part relating to the employment or 
reemployment of the person by the agency may--
    (a) File a complaint with the Department of Labor, as noted in 
Sec. 353.210, or
    (b) Appeal directly to MSPB if the individual chooses not to file a 
complaint with the Department of Labor, or is informed by either Labor 
or the Office of the Special Counsel that they will not pursue to the 
case.

Subpart C--Compensable Injury


Sec. 353.301  Restoration rights.

    (a) Fully recovered within 1 year. An employee who fully recovers 
from a compensable injury within 1 year from the date eligibility for 
compensation began (or from the time compensable disability recurs if 
the recurrence begins after the employee resumes regular full-time 
employment with the United States), is entitled to be restored 
immediately and unconditionally to his or her former position or an 
equivalent one. Although these restoration rights are agencywide, the 
employee's basic entitlement is to the former position or equivalent in 
the local commuting area the employee left. If a suitable vacancy does 
not exist, the employee is entitled to displace an employee occupying a 
continuing position under temporary appointment or tenure group III. If 
there is no such position in the local commuting area, the agency must 
offer the employee a position (as described above) in another location. 
This paragraph also applies when an injured employee accepts a lower-
grade position 

[[Page 45657]]
in lieu of separation and subsequently fully recovers. A fully 
recovered employee is expected to return to work immediately upon the 
cessation of compensation.
    (b) Fully recovered after 1 year. An employee who separated because 
of a compensable injury and whose full recovery takes longer than 1 
year from the date eligibility for compensation began (or from the time 
compensable disability recurs if the recurrence begins after the 
injured employee resumes regular full-time employment with the United 
States), is entitled to priority consideration, agencywide, for 
restoration to the position he or she left or an equivalent one 
provided he or she applies for reappointment within 30 days of the 
cessation of compensation. Priority consideration is accorded by 
entering the individual on the agency's reemployment priority list for 
the competitive service or reemployment list for the excepted service. 
If the individual cannot be placed in the former commuting area, he or 
she is entitled to priority consideration for an equivalent position 
elsewhere in the agency. (See parts 302 and 330 of this chapter for 
more information on how this may be accomplished for the excepted and 
competitive services, respectively.) This subpart also applies when an 
injured employee accepts a lower-graded position in lieu of separation 
and subsequently fully recovers.
    (c) Physically disqualified. An individual who is physically 
disqualified for the former position or equivalent because of a 
compensable injury, is entitled to be placed in another position for 
which qualified that will provide the employee with the same status, 
and pay, or the nearest approximation thereof, consistent with the 
circumstances in each case. This right is agencywide and applies for a 
period of 1 year from the date eligibility for compensation begins. 
After 1 year, the individual is entitled to the rights accorded 
individuals who fully or partially recover, as applicable.
    (d) Partially recovered. Agencies must make every effort to restore 
in the local commuting area, according to the circumstances in each 
case, an individual who has partially recovered from a compensable 
injury and who is able to return to limited duty. At a minimum, this 
would mean treating these employees substantially the same as other 
handicapped individuals under the Rehabilitation Act of 1973, as 
amended. (See 29 U.S.C. 791(b) and 794.) If the individual fully 
recovers, he or she is entitled to be considered for the position held 
at the time of injury, or an equivalent one. A partially recovered 
employee is expected to seek reemployment as soon as he or she is able.
Sec. 353.302  Retention protections.

    An injured employee enjoys no special protection in a reduction in 
force. Separation by reduction in force or for cause while on 
compensation means the individual has no restoration rights.


Sec. 353.303   Restoration rights of TAPER employees.

    An employee serving in the competitive service under a temporary 
appointment pending establishment of a register (TAPER) under 
Sec. 316.201 of this chapter (other than an employee serving in a 
position classified above GS-15), is entitled to be restored to the 
position he or she left or an equivalent one in the same commuting 
area.


Sec. 353.304  Appeals to the Merit Systems Protection Board.

    (a) Except as provided in paragraphs (b) and (c) of this section, 
an injured employee or former employee of an agency in the executive 
branch (including the U.S. Postal Service and the Postal Rate 
Commission) may appeal to the MSPB an agency's failure to restore, 
improper restoration, or failure to return an employee following a 
leave of absence. All appeals must be submitted in accordance with 
MSPB's regulations.
    (b) An individual who fully recovers from a compensable injury more 
than 1 year after compensation begins may appeal to MSPB as provided 
for in parts 302 and 330 of this chapter for excepted and competitive 
service employees, respectively.
    (c) An individual who is partially recovered from a compensable 
injury may appeal to MSPB for a determination of whether the agency is 
acting arbitrarily and capriciously in denying restoration. Upon 
reemployment, a partially recovered employee may also appeal the 
agency's failure to credit time spent on compensation for purposes of 
rights and benefits based upon length of service.

PART 870--BASIC LIFE INSURANCE

    2. The authority citation for part 870 continues to read as 
follows:

    Authority: 5 U.S.C. 8716; section 870.202(c) also issued under 5 
U.S.C. 7701(b)(2); subpart J is also issued under section 599C of 
Pub. L. 101-513, 104 Stat. 2064, as amended.

    3. In Sec. 870.501, paragraph (d) is amended by adding a sentence 
at the end to read as follows:


Sec. 870.501  Termination and conversion of insurance coverage.

* * * * *
    (d) * * * For the purpose of this paragraph, an individual who is 
entitled to benefits under part 353 of this chapter is considered to be 
an employee in nonpay status.
* * * * *

PART 890--FEDERAL EMPLOYEES HEALTH BENEFITS PROGRAM

    4. The authority citation for part 890 continues to read as 
follows:

    Authority: 5 U.S.C. 8913; section 890.803 also issued under 50 
U.S.C. 403p, 22 U.S.C. 4069c and 4069c-1; subpart L also issued 
under sec. 599C of Pub. L. 101-513, 104 Stat. 2064, as amended.

    5. Section 890.303 is amended by adding a new paragraph (i) to read 
as follows:


Sec. 890.303  Contination of enrollment.

* * * * *
    (i) Service in the uniformed services. The enrollment of an 
individual who separates to enter the uniformed services under 
conditions that entitle him or her to benefits under part 353 of this 
chapter may continue for the 18-month period beginning on the date that 
the absence to serve in the uniformed services begins, provided that 
the individual continues to be entitled to benefits under part 353 of 
this chapter. The enrollment of an employee who enters on military 
furlough or is placed in nonpay status to serve in the uniformed 
services may continue for the 18-month period beginning on the date 
that the absence to serve in the uniformed services begins, provided 
that the employee continues to be entitled to benefits under part 353 
of this chapter. An employee in nonpay status is entitled to continued 
coverage under paragraph (e) of this section if the employee's 
entitlement to benefits under part 353 of this chapter ends before the 
expiration of 365 days in nonpay status. The enrollment of an employee 
who is on military furlough or in nonpay status in order to serve in 
the uniformed services on October 13, 1994, may continue for the 18-
month period beginning on the date that the absence to serve in the 
uniformed services began, provided that the employee continues to be 
entitled to continued coverage under part 353 of this chapter. If the 
enrollment of such an employee had terminated due to the expiration of 
365 days in nonpay status, it may be reinstated for the remainder of 
the 18-month period beginning on the date that the absence to serve in 
the uniformed services began, provided that the 

[[Page 45658]]
employee continues to be entitled to continued coverage under part 353 
of this chapter.
    6. In Sec. 890.304 paragraph (a)(1) is amended by revising 
paragraph (a)(1)(vi) and adding two new paragraphs (a)(1)(vii) and 
(viii) to read as follows:


Sec. 890.304  Termination of enrollment.

    (a) * * *
    (1) * * *
    (vi) The day he or she is separated, furloughed, or placed on leave 
of absence to serve in the uniformed services under conditions 
entitling him or her to benefits under part 353 of this chapter for the 
purpose of performing duty not limited to 30 days or less, provided the 
employee elects, in writing to have the enrollment so terminated.
    (vii) For an employee who separates to serve in the uniformed 
services under conditions entitling him or her to benefits under part 
353 of this chapter for the purpose of performing duty not limited to 
30 days or less, the date that is 18 months after the date that the 
absence to serve in the uniformed services began or the date 
entitlement to benefits under part 353 of this chapter ends, whichever 
is earlier, unless the enrollment is terminated under paragraph 
(a)(1)(vi) of this section.
    (viii) For an employee who is furloughed or placed on leave of 
absence under conditions entitling him or her to benefits under part 
353 of this chapter, the date that is 18 months after the date that the 
absence to serve in the uniformed services began or the date 
entitlement to benefits under part 353 of this chapter ends, whichever 
is earlier, but not earlier than the date the enrollment would 
otherwise terminate under paragraph (a)(1)(v) of this section.
* * * * *
    7. In Sec. 890.305 paragraph (a) is revised to read as follows:
Sec. 890.305  Reinstatement of enrollment after military service.

    (a) The enrollment of an employee or annuitant whose enrollment was 
terminated under Sec. 890.304(a)(1)(vi), (vii) or (viii) or 
Sec. 890.304(b)(4)(iii) is automatically reinstated on the day the 
employee is restored to a civilian position under the provisions of 
part 353 of this chapter or on the day the annuitant is separated from 
the uniformed services, as the case may be.
 * * * * *
    8. In Sec. 890.501 paragraph (e) is revised and two new paragraphs 
(f) and (g) are added to read as follows:


Sec. 890.501   Government contributions.

 * * * * *
    (e) Except as provided in paragraphs (f) and (g) of this section, 
the employing office must make a contribution for an employee for each 
pay period during which the enrollment continues.

    (f) Temporary employees enrolled under 5 U.S.C. 8906a must pay the 
full subscription charge including the Government contribution. 
Employees with provisional appointments under Sec. 316.403 are not 
considered to be enrolled under 5 U.S.C. 8906a for the purpose of this 
paragraph.

    (g) The Government contribution for an employee who enters the 
uniformed services and whose enrollment continues under Sec. 890.303(i) 
ceases after 365 days in nonpay status.

    9. In Sec. 890.502 paragraph (g) is revised to read as follows:

Sec. 890.502  Employee withholdings and contributions.

 * * * * *

    (g) Uniformed services. (1) except as provided in paragraph (g)(2) 
of this section, an employee whose coverage continues under section 
890.303(i) is responsible for payment of the employee share of the cost 
of enrollment for every pay period for which the enrollment continues 
for the first 365 days of continued coverage as set forth under 
paragraph (b) of this section. For coverage that continues after 365 
days in nonpay status, the employee must pay, on a current basis, the 
full subscription charge, including both the employee and Government 
shares, plus an additional 2 percent of the full subscription charge.

    (2) Payment of the employee's share of the cost of enrollment is 
waived for the first 365 days of continued coverage in the case of an 
employee whose coverage continues under Sec. 890.303(e) following 
furlough or placement on leave of absence under the provisions of part 
353 of this chapter or under Sec. 890.303(i) if the employee was 
ordered to active duty before September 1, 1995 under section 672, 
673b, 674, 675, or 688 of title 10, United States Code, in support of 
Operation Desert Storm.

 * * * * *


[FR Doc. 95-21571 Filed 8-31-95; 8:45 am]

BILLING CODE 6325-01-M