A right or benefit is seniority-based if it is determined by or accrues with length of employment. On the other hand, a right or benefit is not seniority-based if it is compensation for work performed or is made available without regard to length of employment. In such cases, the person will be subject to the employer’s established rules governing unexcused absences. Service by members who are ordered to active duty in support of a “critical mission or requirement” of the uniformed services as determined by the Secretary involved – Section 4312 (c) (4) (D). 4. When requested by your employer, did you provide readily available documentation showing eligibility for reemployment? Office of the Assistant Secretary for Preparedness and Response. (B) in the job in which the person was employed on the date of the commencement of the service in the uniformed services, only if the person is not qualified to perform the duties of the position referred to in subparagraph (A) after reasonable efforts by the employer to qualify the person. Exceptions – Eight categories of service are exempt from the five-year limitation. During an emergency, NDMS issues official orders to deploy individuals to areas in need of relief. Military service must be considered service with an employer for vesting and benefit accrual purposes. (38 USC 4312). Call 1-800-336-4590 or visit www.esgr.org. If the disabled person cannot become qualified for the reemployment position despite reasonable efforts by the employer to accommodate the employee, and qualify him or her to perform the duties of the position, the employee must be reemployed in a position according to the following priority: (a) a position that is equivalent in seniority, status, and pay to the escalator position, or (b) a position that is the nearest approximation to the equivalent position, consistent with the circumstances of the employee’s case. Definitions: "National Disaster Medical System (NDMS)" means the federally coordinated system that augments the United States' medical response capability to major emergencies and disasters. To qualify for USERRA’s protections, a service member must be available to return to work within certain time limits. 6. USERRA also protects anyone—veteran or non-veteran—from reprisal for either exercising rights or assisting in any proceeding under the statute. A disaster medical assistance team (DMAT) is a group of professional and para-professional medical personnel organized to provide rapid-response medical care or casualty decontamination during a terrorist attack, natural disaster, or other incident in the United States.. DMATs are part of the National Disaster Medical System and operate under the Department of Health and Human Services (DHHS). Did you make an application or report back to the pre-service employer in a timely manner? Team leaders have a vested interest in the problem and may be able to explain the situation or suggest compromises that will satisfy everyone's needs. Duty performed by intermittent employees of the National Disaster Medical System (NDMS), which is part of the Department of Health and Human Services, when activated for a public health emergency, and approved training to prepare for such service (added by Pub. .agency-blurb-container .agency_blurb.background--light { padding: 0; } An employer has the right to request that a person who is absent for a period of service of 31 days or more provides documentation showing that, Section 4312 (f) (3) (A) / 20 CFR 1002.122. State or local government call ups? 2. 200 C Street, SW While this fact sheet is directed to civilian employers of members of the National Disaster Medical System, it should be noted that Active component members, Public Health Service Commissioned Corps members, and certain others are also protected by the Uniformed Services Employment and Reemployment Rights Act (USERRA), if they meet the eligibility criteria. Separation from the service with a dishonorable or bad conduct discharge. There is no small business or employer hardship exc ep-tion. USERRA applies to members of the Armed Services, Reserves, National Guard, and other “Uniformed Services,” including the National Disaster Medical System and the Commissioned Corps of the Public Health Service. USERRAguarantees an employee returning from military service or training the right to be re-employed at his or her former job (or as nearly comparable a job as possible) with the same benefits. ), 4. Do I have to provide this pay differential for my NDMS employees under USERRA? Employers are prohibited from retaliating against anyone (whether or not they have performed military service) who: whether or not the person has performed military service. Federal government websites often end in .gov or .mil. (This notice can be written or verbal.). It looks like your browser does not have JavaScript enabled. “Service in the Uniformed Services” and “Uniformed Services” Defined (38 U.S.C. 7. 7. 1. The NDMS is a section within the U.S. Department of ATTN: Joe Lamoureux /*-->*/. How is such notice to be given? div > div.guidance-search > div.csv-feed.views-data-export-feed {display:none;} Pension plans (Section 4318), which are tied to seniority, are given separate, detailed treatment under the law. USERRA affects employment, reemployment, and retention in employment, when employees serve in the uniformed Services. If an individual’s past, present, or future connection with the service is a motivating factor in an employer’s adverse employment action against that individual, the employer has committed a violation, unless the employer can prove that it would have taken the same action regardless of the individual’s connection with the service. service. Accrued seniority, as if continuously employed. How does the new law address discrimination by an employer or prospective employer? For example, the five-year limit will not be applied to members of the Navy or Marine Corps whose obligated service dates expire while they are at sea. Public Health Emergency - Leading a Nation Prepared, Note: This material is for information only and should not be considered as legal authority. Section 4318 (b) (2) / 20 CFR 1002.262 (b). 11. A reduction-in-force that would have included the person would be an example. p.usa-alert__text {margin-bottom:0!important;} If a person does not provide satisfactory documentation because it is not readily available or does not exist, the employer still must promptly reemploy the person. Section 1002.57 clarifies when service in the National Guard is covered by USERRA, and section 1002.58 addresses service in the commissioned corps of the Public Health Service, a division of the Department of Health and Human Services. Disasters like Hurricane Sandy, the tornadoes in Joplin, MO, and the flooding in Louisiana have shown that major disasters can overwhelm state, local, tribal and territorial resources. USERRA applies to virtually all employers, regardless of size, including the Federal Government. .manual-search-block #edit-actions--2 {order:2;} Protection from Discrimination and Retaliation. If the employee cannot become qualified for the position in either (1) or (2), the person must be employed in a position that, consistent with the circumstances of that person’s case, most nearly approximates the position in (2) in terms of seniority, status, and pay. The law requires employers to promptly reemploy persons returning from military service of 91 or more days in the following order of priority: 1. Active duty (other than for training) by volunteers supporting “operational missions” for which Selected Reservists have been ordered to active duty without their consent – Section 4312 (c) (4) (C). Certain types of service specified in 42 U.S.C. Dismissal of a commissioned officer in certain situations involving a court martial or by order of the President in time of war. USERRA Covers National Disaster Medical System Deployments 1. While the information presented herein applies primarily to private employers, there are parallel provisions in the statute that apply to Federal, State and Local Government employers. If the person could not be qualified in a similar position, did the employer place the person in any other position of lesser status and pay which he/she was qualified to perform with full seniority? The law gives VETS a right of access to examine and duplicate any documents that it considers relevant to an investigation. 6. (202) 245-0718 42 U.S.C. This service (whether local or national) is informal; discussions are not entered into personnel records. Emergency Preparedness âNatural Disasters âTechnological Disasters âTerrorism. Employment discrimination because of past, current, or future military obligations is prohibited. Can an employee be required to use earned vacation while performing NDMS service? Required training for Reservists and National Guard members – Section 4312 (c) (3). Emergency Management Agency (FEMA), the National Disaster Medical System (NDMS), and, as recently amended, the National Urban Search and Rescue System (NUSRS).12 Uniformed service not protected by USERRA includes National Guard members activated for state service.13 However, many states, including Minnesota, have enacted state statutes extending USERRA protections to guard members … Training or retraining and other accommodations. Did the employer grant accrued seniority as if the returning service member had been continuously employed? These include: 1. Are there reemployment rights following voluntary NDMS service? HealthCare.gov in Other Languages. Office of Special Counsel . USERRA protects the job rights of individuals who voluntarily or involuntarily leave employment positions to undertake military service or certain types of service in the National Disaster Medical System. 12 . The law requires employees to provide their employers with advance notice of military service, with some exceptions. If a person has been absent for military service for 91 or more days, an employer may delay treating the person as not having incurred a break in service for pension purposes until the person submits satisfactory documentation establishing reemployment eligibility. The law provides for health benefits continuation for persons who have coverage under a health plan in connection with their employment who are absent from work to serve in the military. Did the service member give advance notice of military service to the employer? Consequently, during their period of service they are entitled to participate in any rights and benefits not based on seniority that are available to employees on comparable nonmilitary leaves of absence, whether paid or unpaid. Section 4313 (a) (4). USERRA and the Iowa Code section also applies to members of the National Disaster Medical System (NDMS), organized under the Federal Department of Health and Human Services, who volunteer intermittently when activated as Federal employees, to provide medically-related assistance to victims of public health emergencies or when participating in authorized training. They may do so if they have chosen not to file a complaint with VETS, have chosen not to request that VETS refer their complaint to the Attorney General, or have been refused representation by the Attorney General. Is the returning employee always entitled to have the same job back? What if a person is not qualified for the reemployment position? Information about USERRA is also available on the Internet. 3. The person who first left the position has the superior right to it. (Exclude exceptions identified in the law.). C. Comments Addressing the National Disaster Medical System The Department received several comments from an attorney employed by the Federal Emergency Management Agency (FEMA) regarding the rule’s treatment of the National Disaster Medical System (NDMS). Did the employer continue coverage at the regular employee cost for service members whose leave was for less than 31 days? the person’s application for reemployment is timely; the person has not exceeded the five-year service limitation; and. USERRA protects the job rights of individuals who voluntarily or involuntarily leave employment positions to undertake military service or certain types of service in the National Disaster Medical System. service. This form is intended for members of the Uniformed Services (National Guard, Reserves, and the National Disaster Medical System (NDMS)), who are experiencing civilian employment concerns related to uniformed service obligations. The site is secure. The position may not necessarily be the same job the person previously held. USERRA or its regulations. Such operational missions involve circumstances other than war or national emergency for which, under presidential authorization, members of the Selected Reserve may be involuntarily ordered to active duty under Title 10, U.S.C. Section 4318 (b) (1) / 20 CFR 1002.261. Full-time National Guard duty; Absence from work for an examination to determine a person’s fitness for duty; Funeral honors duty performed by Guard-Reserve members; Duty performed by employees of the National Disaster Medical System (NDMS) For the purposes of USERRA, uniformed services consist of the following: In times like these, a federal agency called the National Disaster Medical System (NDMS) often springs into action. (Note: Jobs employers can show to be held for a brief, nonrecurring period with no reasonable expectation of continuing for a significant period do not qualify for protection). The NDMS is a federally coordinated system that augments the nation’s medical response capability. Absence from work for an examination to determine a person’s fitness for any of the above types of duty, Funeral honors duty performed by National Guard or Reserve members. USERRA pmtects the job rights of individuals who voluntarily or involuntarily leave employment positions to undertake military service or certain types of service in National Disaster Medical System. Cause for discharge may be based on conduct or the application of legitimate nondiscriminatory reasons. At the time of providing the notice, the employee must be aware of the specific rights and benefits to be lost. For example, an employer cannot require a service member who returns home at 10:00 p.m. to report to work at 12:30 a.m. that night. All of the undefined words used in this USERRA notice have the meanings assigned to them in the attached EXTENDED COVERAGE Election Notice. Reemployment of a person is excused if an employer’s circumstances have changed so that reemployment of the person would be impossible or unreasonable. Did you notify the employer that you would be leaving the job for military training or service? 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