20 C.F.R. §§ 1002.196–1002.199

§1002.196. What is the employee's reemployment position if the period of service was less than 91 days?

20 C.F.R. § 1002.196

Following a period of service in the uniformed services of less than 91 days, the employee must be reemployed according to the following priority:

(a)

The employee must be reemployed in the escalator position. He or she must be qualified to perform the duties of this position. The employer must make reasonable efforts to help the employee become qualified to perform the duties of this position.

(b)

If the employee is not qualified to perform the duties of the escalator position after reasonable efforts by the employer, the employee must be reemployed in the position in which he or she was employed on the date that the period of service began. The employee must be qualified to perform the duties of this position. The employer must make reasonable efforts to help the employee become qualified to perform the duties of this position.

(c)

If the employee is not qualified to perform the duties of the escalator position or the pre-service position, after reasonable efforts by the employer, he or she must be reemployed in any other position that is the nearest approximation first to the escalator position and then to the pre-service position. The employee must be qualified to perform the duties of this position. The employer must make reasonable efforts to help the employee become qualified to perform the duties of this position.

Notes, amendments, and revision history

Authority

Authority: Section 4331(a) of the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), 38 U.S.C. 4331(a) (Pub. L. 103-353, 108 Stat. 3150).

Source

Source: 70 FR 75292, Dec. 19, 2005, unless otherwise noted.

§1002.197. What is the reemployment position if the employee's period of service in the uniformed services was more than 90 days?

20 C.F.R. § 1002.197

Following a period of service of more than 90 days, the employee must be reemployed according to the following priority:

(a)

The employee must be reemployed in the escalator position or a position of like seniority, status, and pay. He or she must be qualified to perform the duties of this position. The employer must make reasonable efforts to help the employee become qualified to perform the duties of this position.

(b)

If the employee is not qualified to perform the duties of the escalator position or a like position after reasonable efforts by the employer, the employee must be reemployed in the position in which he or she was employed on the date that the period of service began or in a position of like seniority, status, and pay. The employee must be qualified to perform the duties of this position. The employer must make reasonable efforts to help the employee become qualified to perform the duties of this position.

(c)

If the employee is not qualified to perform the duties of the escalator position, the pre-service position, or a like position, after reasonable efforts by the employer, he or she must be reemployed in any other position that is the nearest approximation first to the escalator position and then to the pre-service position. The employee must be qualified to perform the duties of this position. The employer must make reasonable efforts to help the employee become qualified to perform the duties of this position.

Notes, amendments, and revision history

Authority

Authority: Section 4331(a) of the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), 38 U.S.C. 4331(a) (Pub. L. 103-353, 108 Stat. 3150).

Source

Source: 70 FR 75292, Dec. 19, 2005, unless otherwise noted.

§1002.198. What efforts must the employer make to help the employee become qualified for the reemployment position?

20 C.F.R. § 1002.198

The employee must be qualified for the reemployment position. The employer must make reasonable efforts to help the employee become qualified to perform the duties of this position. The employer is not required to reemploy the employee on his or her return from service if he or she cannot, after reasonable efforts by the employer, qualify for the appropriate reemployment position.

(a)

(1)

“Qualified” means that the employee has the ability to perform the essential tasks of the position. The employee's inability to perform one or more non-essential tasks of a position does not make him or her unqualified.

(2)

Whether a task is essential depends on several factors, and these factors include but are not limited to:

(i)

The employer's judgment as to which functions are essential;

(ii)

Written job descriptions developed before the hiring process begins;

(iii)

The amount of time on the job spent performing the function;

(iv)

The consequences of not requiring the individual to perform the function;

(v)

The terms of a collective bargaining agreement;

(vi)

The work experience of past incumbents in the job; and/or

(vii)

The current work experience of incumbents in similar jobs.

(b)

Only after the employer makes reasonable efforts, as defined in § 1002.5(i), may it determine that the employee is not qualified for the reemployment position. These reasonable efforts must be made at no cost to the employee.

Notes, amendments, and revision history

Authority

Authority: Section 4331(a) of the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), 38 U.S.C. 4331(a) (Pub. L. 103-353, 108 Stat. 3150).

Source

Source: 70 FR 75292, Dec. 19, 2005, unless otherwise noted.

§1002.199. What priority must the employer follow if two or more returning employees are entitled to reemployment in the same position?

20 C.F.R. § 1002.199

If two or more employees are entitled to reemployment in the same position and more than one employee has reported or applied for employment in that position, the employee who first left the position for uniformed service has the first priority on reemployment in that position. The remaining employee (or employees) is entitled to be reemployed in a position similar to that in which the employee would have been reemployed according to the rules that normally determine a reemployment position, as set out in §§ 1002.196 and 1002.197.

Notes, amendments, and revision history

Authority

Authority: Section 4331(a) of the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), 38 U.S.C. 4331(a) (Pub. L. 103-353, 108 Stat. 3150).

Source

Source: 70 FR 75292, Dec. 19, 2005, unless otherwise noted.

20 C.F.R. §§ 1002.196–1002.199

§1002.196. What is the employee's reemployment position if the period of service was less than 91 days?

Authority

Source

§1002.197. What is the reemployment position if the employee's period of service in the uniformed services was more than 90 days?

Authority

Source

§1002.198. What efforts must the employer make to help the employee become qualified for the reemployment position?

Authority

Source

§1002.199. What priority must the employer follow if two or more returning employees are entitled to reemployment in the same position?

Authority

Source

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