[Federal Register Volume 64, Number 112 (Friday, June 11, 1999)]
[Rules and Regulations]
[Pages 31485-31488]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-14846]



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  Federal Register / Vol. 64, No. 112 / Friday, June 11, 1999 / Rules 
and Regulations  

[[Page 31485]]


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OFFICE OF PERSONNEL MANAGEMENT

5 CFR Parts 213, 353, 870, and 890

RINS 3206-AG02 and 3206-AH15


Reemployment Rights of Employees Performing Military Duty

AGENCY: Office of Personnel Management.

ACTION: Final regulations.

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SUMMARY: The Office of Personnel Management (OPM) is issuing final 
regulations to implement the provisions of the Uniformed Services 
Employment and Reemployment Rights Act of 1994 (USERRA) which was 
enacted into law on October 13, 1994. The law and these regulations 
safeguard the job rights of Federal employees who leave their 
employment to perform duty with the uniformed services.
    These 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. The regulations were developed in consultation 
with the Departments of Labor and Defense.

EFFECTIVE DATE: July 12, 1999.

FOR FURTHER INFORMATION CONTACT: For parts 213 or 353: Raleigh M. 
Neville, (202) 606-0830. For parts 870 or 890: Abby L. Block, (202) 
606-0004.

SUPPLEMENTARY INFORMATION: OPM published for comment on September 1, 
1995 (at 60 FR 45650), and October 30, 1995 (at 60 FR 55173), interim 
regulations implementing the new USERRA law.

Comments on Part 353

    We received comments from two agencies on the restoration-to-duty 
aspect of the law in 5 CFR part 353. We also received two comments from 
an agency on the health and life insurance changes in parts 870 and 
890.
    Section 4314 of title 38, United States Code, enacted as part of 
USERRA, requires OPM to place in other agencies a National Guard 
technician when the adjutant general of a State determines that it is 
``impossible or unreasonable'' to reemploy the person in a dual status 
military/civilian technician position.
    One commenter suggested that we make clear in the final regulations 
that National Guard technicians who fail to maintain active military 
membership in the Guard for reasons within their control (such as 
misconduct, military retirement, failure to meet weight or security 
requirements, etc.) are not eligible for the special mandatory 
placement in other agencies provided under section 4314 of title 38.
    We agree that the law was not intended to provide a mandatory 
placement right in other agencies for Guard technicians who lose their 
military membership for reasons within their control. To do so would be 
to extend an extraordinary employment benefit to Guard technicians far 
beyond that accorded to any other group--including disabled combat 
veterans and others who have lost Federal jobs for reasons outside 
their control. Such a placement provision would also be contrary to the 
stated purpose of USERRA--which is to encourage and protect ``noncareer 
service'' that lasts no more than a cumulative total of 5 years, with 
some exceptions for training and emergency call-ups. (See 38 U.S.C. 
4301)
    Such a policy would also be inconsistent with 5 U.S.C. 3329--a 
provision that was enacted specifically to protect long-term Guard 
members, but which, significantly, provides only for priority placement 
in the Department of Defense, not mandatory placement in other 
agencies. (This is just one of a number of special protections already 
provided for technicians; for example, 5 U.S.C. 3304 gives technicians 
who are removed involuntarily a 1-year window of opportunity to be 
appointed noncompetitively to another civil service job.)
    Finally, National Guard technicians knew that they were making a 
career decision when they volunteered for extended active duty with the 
Guard. These technicians were not merely absent from their technician 
positions (as envisioned by the law); rather, they had abandoned their 
jobs in order to pursue careers in the military. Interruption of that 
career for reasons within the individual's control should no more 
entitle the Guard member to mandatory job rights in another agency than 
would loss of Reserve membership for a Reservist or, for that matter, 
loss of a career choice for any other Government or private sector 
employee. We have, therefore, amended final regulation 5 CFR 
353.110(a)(1)(iii) accordingly.
    This commenter also suggested that we amend 5 CFR 353.211 to make 
clear that, because the term ``employer,'' as it pertains to National 
Guard technicians, means the Adjutant General of a State, these 
technicians may no longer appeal to the Merit Systems Protection Board 
(MSPB) a State's failure to reemploy them; they must now go to court. 
We have made this change. (Note, however, that this does not affect a 
technician's right to appeal to MSPB OPM's failure to place the 
individual under 38 U.S.C. 4314(d).)
    A commenter suggested that we delete the word ``substantially'' in 
the third sentence in 5 CFR 353.108 (pertaining to the effect of 
performance and conduct on restoration rights for both injured 
employees and those on military duty), saying that this ``will 
eliminate the suggestion that something less than substantial is 
acceptable.'' Actually, this section says that an employee may not be 
denied restoration rights unless he or she was separated ``for cause 
that is substantially unrelated to the injury or to the performance of 
uniformed service.'' There is no implication that restoration can be 
denied when the separation was something less than ``substantially 
unrelated'' to the injury or military duty. This standard will be 
maintained.
    This commenter also suggested that in 5 CFR 353.109 (concerning a 
transfer of function to another agency), we substitute the words from 
the statute ``of like seniority, status, and pay'' for ``equivalent'' 
in denoting the position to which the position to which the person is 
entitled. Actually, ``equivalent position,'' in this context, has long 
been interpreted as ``like seniority, status, and pay.'' We note, too, 
that ``seniority'' is already included in the definition of ``status.'' 
We did not include the term

[[Page 31486]]

separately, here, however, because seniority is not typically a factor 
for Federal positions and is thus not commonly used.
    This commenter also questions whether OPM should create a 30-day 
standard in 5 CFR 353.207 by which time agencies must restore an 
employee who has been absent on military duty for more than 30 days. 
The agency suggests that it may be preferable to require prompt or 
reasonable reemployment, instead. The 30-day standard has been in 
effect for many years and has been consistently applied by MSPB in such 
a way as to require prompt and reasonable reemployment by an agency. In 
this connection, it should be noted that 30 days is the maximum an 
agency can delay a restoration. It is conceivable that by changing this 
to a standard without a definite time limit, situations may devolve in 
which it may be considered ``reasonable'' for an agency to restore 
someone long after 30 days have elapsed.
    Because of questions about the applicability of USERRA and other 
laws to U.S. citizens located outside of the United States, one 
commenter suggested that we clarify what USERRA does, in fact, cover 
civil service employees stationed overseas. We have amended 5 CFR 
353.103 to do so.
    Other comments dealt with editorial and clerical errors.

Comments on Parts 870 and 890

    OPM received two comments from a Federal agency on the interim 
regulations. One commenter suggested that the sentence added at the end 
of 5 CFR 870.501(d) be added to section 870.501(a) instead. Although we 
did not accept this suggestion as stated, we amended paragraph section 
870.501(a) to clarify that the last sentence of section 870.501(d) is 
an exception. We also eliminated the words ``in nonpay status'' from 
the last sentence of section 870.501(d) because it is possible to be in 
a pay status and eligible for USERRA benefits at the same time.
    These changes were incorporated into the final FEGLI regulations 
that were published in the Federal Register on September 17, 1997 (62 
FR 48731).
    One commenter objected to three phrases in 5 CFR 890.303(i) and one 
in section 890.304: (1) ``on the date that the absence to serve in the 
uniform services begins,'' (2) ``enters on military furlough or,'' (3) 
``provided the employee continues to be entitled to benefits under part 
353,'' and (4) ``or the date entitlement to of this chapter.'' Since 
these phrases reflect the requirements of USERRA, we cannot accept this 
suggestion. For example, under the provisions of USERRA a separated 
employee who leaves military service and does not return to his or her 
civilian position within the time limit set by the law loses 
eligibility for continued health benefits coverage.
    One commenter suggests we delete the words ``but not earlier than 
the date the enrollment would otherwise terminate under paragraph 
(a)(1)(v)'' as not applicable to employees with continued coverage 
under USERRA. (See 5 CFR 390.304) Paragraph (a)(1)(v) reflects the 
provisions of the FEHB law and regulations giving employees who are in 
nonpay status continued entitlement to FEHB coverage for 365 days. The 
FEHB entitlement remains even if entitlement to coverage under USERRA 
is lost. Therefore, we have not accepted this suggestion.
    One commenter suggests amending the interim regulations to specify 
that the regulations apply to employees who met the requirements of 
USERRA on October 13, 1994, so that they would cover employees whose 
insurance terminated due to separation for military service, but who 
met the USERRA requirements on or after that date. We have amended the 
interim regulations to clarify that they apply to separated employees 
as well as employees in nonpay status who met the USERRA requirements 
on October 13, 1994.
    Both commenters object to the requirement that the employee pay the 
full premium (both employee and Government shares) plus an additional 2 
percent after the initial 365 days of coverage. One commenter also 
objects to the requirement that the employee pay premiums on a current 
basis after the first 365 days. There is no statutory authority for the 
Government to pay its share for coverage beyond 365 days, nor is there 
statutory authority for OPM to waive the Government share after 365 
days in nonpay status. Therefore, employees must pay it. Further, since 
USERRA is patterned after COBRA, 29 U.S.C. 1161, et seq., (which 
requires private sector employers to provide continued group health 
coverage to separated employees for a period of 18 months at a cost to 
the individual of up to 102 percent of the premium), we have patterned 
these regulations after the temporary continuation of coverage (TCC) 
provision of the FEHB law, 5 U.S.C. 8905(a), (the FEHB equivalent to 
COBRA) to the extent applicable. The TCC provisions are not applicable 
for the first 365 days because, under FEHB law and regulation, the 
employees and the Government continue to pay their respective shares 
for that period.
    Both the FEGLI and FEHB regulations have been amended to show that 
employees who separate to perform military service are considered to be 
employees for the purpose of continuing these benefits. The FEHB 
regulations have also been amended to show that FEHB coverage may 
continue for up to 18 months after the employee enters military 
service.
    In addition to these changes, we added the phrase ``or similar 
authority'' each time we refer to 5 CFR part 353 in the FEGLI and FEHB 
regulations. This change clarifies that the FEGLI and FEHB provisions 
also apply to entities covered by the FEGLI and FEHB regulations but 
not by part 353.
    The interim regulations for part 870 were adopted as final and 
published in the Federal Register on September 17, 1997.

Technical and Clarifying Amendments

    We have amended the final regulations to reflect perfecting changes 
made by the Veterans' Benefits Improvements Act of 1996 (which includes 
USERRA technical amendments), enacted into law on October 9, 1996.
    We have also amended 5 CFR 353.106(c) to provide that agencies not 
only have an obligation to consider employees absent on military duty 
for any promotion they may have been entitled to, but also to any 
``incident or advantage of employment.''
    These regulations were developed in consultation with the 
Departments of Labor and Defense.

Regulatory Flexibility Act

    I certify that these regulations will not have a significant 
economic impact on a substantial number of small entities because it 
pertains only to Federal agencies.

List of Subjects in Parts 213, 353, 870, and 890

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

Office of Personnel Management.
Janice R. Lachance,
Director.

    Accordingly, OPM is adopting the interim regulations amending 5 CFR 
parts 213, 353, 870, and 890, which were published at 60 FR 45650 and 
60 FR 55173 on September 1, 1995, and October 30, 1995, respectively, 
as final regulations with the following changes:

[[Page 31487]]

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

    1. The authority citation for 5 CFR part 353 continues to read as 
follows:

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

    2. Section 353.103 is amended by revising the first sentence in 
paragraph (a) to read as follows:


Sec. 353.103  Persons covered.

    (a) The provisions of this part pertaining to the uniformed 
services cover each agency employee who enters into such service 
regardless of whether the employee is located in the United States or 
overseas. * * *
* * * * *
    3. Section 353.106 is amended by adding a new sentence at the end 
of paragraph (c) and by adding paragraphs (c)(1), (c)(2), and (c)(3) to 
read as follows:


Sec. 353.106  Personnel actions during employee's absence.

* * * * *
    (c) * * * In addition, agencies have an obligation to consider 
employees absent on military duty for any incident or advantage of 
employment that they may have been entitled to had they not been 
absent. This is determined by:
    (1) Considering whether the ``incident or advantage'' is one 
generally granted to all employees in that workplace and whether it was 
denied solely because of absence for military service;
    (2) Considering whether the person absent on military duty was 
treated the same as if the person had remained at work; and
    (3) Considering whether it was reasonably certain that the benefit 
would have accrued to the employee but for the absence for military 
service.
    4-5. In Sec. 353.110 paragraph (a)(2) is amended by removing the 
word ``time'' from the first sentence and paragraph (a)(1)(iii) is 
revised to read as follows:


Sec. 353.110  OPM placement assistance.

    (a) * * *
    (1) * * *
    (iii) National Guard technicians when the Adjutant General of a 
State determines that it is impossible or unreasonable to reemploy a 
technician otherwise eligible for restoration under 38 U.S.C. 4304 and 
4312 (pertaining to character and length of service), and the 
technician is a noncareer military member who was separated 
invountarily from the Guard for reasons beyond his or her control; and
* * * * *
    6. Section 353.203(a)(4)(ii) is revised to read as follows:


Sec. 353.203  Length of service.

    (a) * * *
    (4) * * *
    (ii) Ordered to or retained 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, as determined by 
the Secretary concerned.
* * * * *


Sec. 353.208  [Amended]

    7. Section 353.208 is amended by removing the number 6 before the 
word ``permitted'' in the first sentence of the section.
    8. Section 353.210 is revised to read as follows:


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 resolve employment disputes brought to 
investigate. If dispute resolution proves unsuccessful, VETS will, at 
the request of the employee, refer the matter to the Office of the 
Special Counsel for representation before the Merit Systems Protection 
Board (MSPB).
    9. In Sec. 353.211 paragraph (b) is amended by adding two new 
sentences at the end to read as follows:


Sec. 353.211  Appeal rights.

* * * * *
    (b) * * * However, National Guard technicians do not have the right 
to appeal to MSPB a denial of reemployment rights by the Adjutant 
General. Technicians may file complaints with the appropriate district 
court in accordance with 38 U.S.C. 4323 (USERRA).

PART 890--FEDERAL EMPLOYEES HEALTH BENEFITS PROGRAM

    10. The authority citation for part 890 is revised to read as 
follows:

    Authority: 5 U.S.C. 8913; Sec. 890.102(f) also issued under sec. 
153 of Pub. L. 104-134, 110 Stat 1321; section 890.803 also issued 
under 50 U.S.C. 403p, 22 U.S.C. 4069c and 4069c-1; subpart L is also 
issued under sec. 599C of Pub. L. 101-513, 104 Stat. 2064, as 
amended.

    11. Section 890.303 is amended by revising paragraph (i) to read as 
follows:


Sec. 890.303  Continuation 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, or similar authority, 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, or similar authority. 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 service begins, provided that the employee continues to 
be entitled to benefits under part 353 of this chapter, or similar 
authority. 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, or similar 
authority, ends before the expiration of 365 days in nonpay status. The 
enrollment of an employee who met the requirements of chapter 43 of 
title 38, United States Code, 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, or 
similar authority. If the enrollment of such an employee had terminated 
due to the expiration of 365 days in nonpay status or because of the 
employee's separation from service, it may be reinstated for the 
remainder of the 18-month period beginning on the date that the absence 
to service in the uniformed service began, provided that the employee 
continues to be entitled to continued coverage under part 353 of this 
chapter, or similar authority.
    12. In Sec. 890.304 paragraphs (a)(1)(vi), (a)(1)(vii), and 
(a)(1)(viii) are revised 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, or 
similar authority, 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

[[Page 31488]]

conditions entitling him or her to benefits under part 353 of this 
chapter, or similar authority, 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, or similar 
authority, 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, or similar authority, 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, or similar authority, ends, whichever is earlier, but not 
earlier than the date the enrollment would otherwise terminate under 
paragraph (a)(1)(v) of this section.
* * * * *
    13. 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 similar authority, or on the day the 
annuitant is separated from the uniformed services, as the case may be.
* * * * *
    14. In Sec. 890.501 paragraphs (e), (f), and (g) are revised 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 of this 
chapter are not considered to be enrolled under 5 U.S.C. 8906a for the 
purposes 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.
    15. In Sec. 890.502 paragraph (f) is revised to read as follows:


Sec. 890.502  Employee withholdings and contributions.

* * * * *
    (f) Uniformed services. (1) Except as provided in paragraph (f)(2) 
of this section, an employee whose coverage continues under 
Sec. 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 similar authority, or under Sec. 890.303(i) if 
the employee was ordered to active duty before September 1, 1995, under 
section 12301, 12304, 12306, 12307, or 688 of title 10, United States 
Code, in support of Operation Desert Storm.

[FR Doc. 99-14846 Filed 6-10-99; 8:45 am]
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