---
kind: "range"
citation: "38 U.S.C. §§ 4311–4318"
title: "38"
from: "4311"
to: "4318"
count: 8
release: "119-102"
url: "https://uscodex.org/usc/38/4311..4318"
---

# §4311. Discrimination against persons who serve in the uniformed services and acts of reprisal prohibited

- (a) A person who is a member of, applies to be a member of, performs, has performed, applies to perform, or has an obligation to perform service in a uniformed service shall not be denied initial employment, reemployment, retention in employment, promotion, or any [benefit of employment](/usc/38/4303.md?p=2) by an [employer](/usc/38/4303.md?p=4-A) on the basis of that membership, application for membership, performance of service, application for service, or obligation.
- (b) An [employer](/usc/38/4303.md?p=4-A) may not discriminate in employment against or take any adverse employment action or other retaliatory action against any person because such person (1) has taken an action to enforce a protection afforded any person under this chapter, (2) has testified or otherwise made a statement in or in connection with any proceeding under this chapter, (3) has assisted or otherwise participated in an investigation under this chapter, or (4) has exercised a right provided for in this chapter. The prohibition in this subsection shall apply with respect to a person regardless of whether that person has performed [service in the uniformed services](/usc/38/4303.md?p=13).
- (c) An [employer](/usc/38/4303.md?p=4-A) shall be considered to have engaged in actions prohibited—
  - (1) under [subsection (a)](#a), if the person’s membership, application for membership, service, application for service, or obligation for [service in the uniformed services](/usc/38/4303.md?p=13) is a motivating factor in the [employer](/usc/38/4303.md?p=4-A)’s action, unless the [employer](/usc/38/4303.md?p=4-A) can prove that the action would have been taken in the absence of such membership, application for membership, service, application for service, or obligation for service; or
  - (2) under [subsection (b)](#b), if the person’s (A) action to enforce a protection afforded any person under this chapter, (B) testimony or making of a statement in or in connection with any proceeding under this chapter, (C) assistance or other participation in an investigation under this chapter, or (D) exercise of a right provided for in this chapter, is a motivating factor in the [employer](/usc/38/4303.md?p=4-A)’s action, unless the [employer](/usc/38/4303.md?p=4-A) can prove that the action would have been taken in the absence of such person’s enforcement action, testimony, statement, assistance, participation, or exercise of a right.
- (d) The prohibitions in subsections [(a)](#a) and [(b)](#b) shall apply to any position of employment, including a position that is described in [section 4312(d)(1)(C) of this title](/usc/38/4312.md?p=d-1-C).

# §4312. Reemployment rights of persons who serve in the uniformed services

- (a) Subject to subsections [(b)](#b), [(c)](#c), and [(d)](#d) and to [section 4304](/usc/38/4304.md), any person whose absence from a position of employment is necessitated by reason of [service in the uniformed services](/usc/38/4303.md?p=13) shall be entitled to the reemployment [rights and benefits](/usc/38/4303.md?p=2) and other employment [benefits](/usc/38/4303.md?p=2) of this chapter if—
  - (1) the person (or an appropriate officer of the uniformed service in which such service is performed) has given advance written or verbal [notice](/usc/38/4303.md?p=8) of such service to such person’s [employer](/usc/38/4303.md?p=4-A);
  - (2) the cumulative length of the absence and of all previous absences from a position of employment with that [employer](/usc/38/4303.md?p=4-A) by reason of [service in the uniformed services](/usc/38/4303.md?p=13) does not exceed five years; and
  - (3) except as provided in [subsection (f)](#f), the person reports to, or submits an application for reemployment to, such [employer](/usc/38/4303.md?p=4-A) in accordance with the provisions of [subsection (e)](#e).
- (b)
  - (1) No [notice](/usc/38/4303.md?p=8) is required under [subsection (a)(1)](#a-1) if the giving of such [notice](/usc/38/4303.md?p=8) is precluded by military necessity or, under all of the relevant circumstances, the giving of such [notice](/usc/38/4303.md?p=8) is otherwise impossible or unreasonable.
  - (2) A determination of military necessity for purposes of [paragraph (1)](#b-1) shall be made—
    - (A) except as provided in subparagraphs [(B)](#b-2-B) and [(C)](#b-2-C), pursuant to regulations prescribed by the [Secretary](/usc/38/4303.md?p=11) of Defense;
    - (B) for persons performing service to the Federal Emergency Management [Agency](/usc/38/4214.md?p=a-2-A) under section 327 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act ([42 U.S.C. 5165f](/usc/42/5165f.md)) and as intermittent personnel under [section 306(b)(1)](/usc/38/306.md) of such Act ([42 U.S.C. 5149(b)(1)](/usc/42/5149.md?p=b-1)), by the Administrator of the Federal Emergency Management [Agency](/usc/38/4214.md?p=a-2-A) as described in sections 327(j)(2) and [306(d)(2)](/usc/38/306.md) of such Act ([42 U.S.C. 5165f(j)(2)](/usc/42/5165f.md?p=j-2) and 5149(d)(2)),[^1] respectively; or
    - (C) for intermittent disaster-response appointees of the National Disaster Medical System, by the [Secretary](/usc/38/4303.md?p=11) of Health and Human Services as described in section 2812(d)(3)(B) of the Public Health Service Act ([42 U.S.C. 300hh–11(d)(3)(B)](/usc/42/300hh–11.md?p=d-3-B)).
  - (3) A determination of military necessity under [paragraph (1)](#b-1) shall not be subject to judicial review.
- (c) [Subsection (a)](#a) shall apply to a person who is absent from a position of employment by reason of [service in the uniformed services](/usc/38/4303.md?p=13) if such person’s cumulative period of [service in the uniformed services](/usc/38/4303.md?p=13), with respect to the [employer](/usc/38/4303.md?p=4-A) relationship for which a person seeks reemployment, does not exceed five years, except that any such period of service shall not include any service—
  - (1) that is required, beyond five years, to complete an initial period of obligated service;
  - (2) during which such person was unable to obtain orders releasing such person from a period of [service in the uniformed services](/usc/38/4303.md?p=13) before the expiration of such five-year period and such inability was through no fault of such person;
  - (3) performed as required pursuant to [section 10147 of title 10](/usc/10/10147.md), under section [502(a)](/usc/32/502.md?p=a) or [503](/usc/32/503.md) of title 32, or to fulfill additional training requirements determined and certified in writing by the [Secretary concerned](/usc/38/101.md?p=25), to be necessary for professional development, or for completion of skill training or retraining; or
  - (4) performed by a member of a uniformed service who is—
    - (A) ordered to or retained on [active duty](/usc/38/101.md?p=21) under section [688](/usc/10/688.md), [12301(a)](/usc/10/12301.md?p=a), [12301(g)](/usc/10/12301.md?p=g), [12302](/usc/10/12302.md), [12304](/usc/10/12304.md), [12304a](/usc/10/12304a.md), [12304b](/usc/10/12304b.md), or [12305](/usc/10/12305.md) of title 10 or under section [331](/usc/10/331.md), [332](/usc/10/332.md), 359, 360, 367, or [712](/usc/38/712.md)[^2] of [title 14](/usc/14.md);
    - (B) ordered to or retained on [active duty](/usc/38/101.md?p=21) (other than for training) under any provision of law because of a war or national emergency declared by the President or the Congress, as determined by the [Secretary concerned](/usc/38/101.md?p=25);
    - (C) ordered to [active duty](/usc/38/101.md?p=21) (other than for training) in support, as determined by the [Secretary concerned](/usc/38/101.md?p=25), of an operational mission for which personnel have been ordered to [active duty](/usc/38/101.md?p=21) under [section 12304 of title 10](/usc/10/12304.md);
    - (D) ordered to [active duty](/usc/38/101.md?p=21) in support, as determined by the [Secretary concerned](/usc/38/101.md?p=25), of a critical mission or requirement of the [uniformed services](/usc/38/4303.md?p=17);
    - (E) called into Federal service as a member of the National Guard under [chapter 15](/usc/38/chptII-ch15.md)[^2] of [title 10](/usc/10.md) or under [section 12406 of title 10](/usc/10/12406.md); or
    - (F) ordered to full-time National Guard duty (other than for training) under [section 502(f)(2)(A) of title 32](/usc/32/502.md?p=f-2-A) when authorized by the President or the [Secretary](/usc/38/4303.md?p=11) of Defense for the purpose of responding to a national emergency declared by the President and supported by Federal funds, as determined by the [Secretary concerned](/usc/38/101.md?p=25).
- (d)
  - (1) An [employer](/usc/38/4303.md?p=4-A) is not required to reemploy a person under this chapter if—
    - (A) the [employer](/usc/38/4303.md?p=4-A)’s circumstances have so changed as to make such reemployment impossible or unreasonable;
    - (B) in the case of a person entitled to reemployment under subsection [(a)(3)](/usc/38/4313.md?p=a-3), [(a)(4)](/usc/38/4313.md?p=a-4), or [(b)(2)(B)](/usc/38/4313.md?p=b-2-B) of section 4313, such employment would impose an [undue hardship](/usc/38/4303.md?p=16) on the [employer](/usc/38/4303.md?p=4-A); or
    - (C) the employment from which the person leaves to serve in the [uniformed services](/usc/38/4303.md?p=17) is for a brief, nonrecurrent period and there is no reasonable expectation that such employment will continue indefinitely or for a significant period.
  - (2) In any proceeding involving an issue of whether—
    - (A) any reemployment referred to in [paragraph (1)](#d-1) is impossible or unreasonable because of a change in an [employer](/usc/38/4303.md?p=4-A)’s circumstances,
    - (B) any accommodation, training, or effort referred to in subsection [(a)(3)](/usc/38/4313.md?p=a-3), [(a)(4)](/usc/38/4313.md?p=a-4), or [(b)(2)(B)](/usc/38/4313.md?p=b-2-B) of section 4313 would impose an [undue hardship](/usc/38/4303.md?p=16) on the [employer](/usc/38/4303.md?p=4-A), or
    - (C) the employment referred to in [paragraph (1)(C)](#d-1-C) is for a brief, nonrecurrent period and there is no reasonable expectation that such employment will continue indefinitely or for a significant period,

    the [employer](/usc/38/4303.md?p=4-A) shall have the burden of proving the impossibility or unreasonableness, [undue hardship](/usc/38/4303.md?p=16), or the brief or nonrecurrent nature of the employment without a reasonable expectation of continuing indefinitely or for a significant period.

- (e)
  - (1) Subject to [paragraph (2)](#e-2), a person referred to in [subsection (a)](#a) shall, upon the completion of a period of [service in the uniformed services](/usc/38/4303.md?p=13), notify the [employer](/usc/38/4303.md?p=4-A) referred to in such subsection of the person’s intent to return to a position of employment with such [employer](/usc/38/4303.md?p=4-A) as follows:
    - (A) In the case of a person whose period of [service in the uniformed services](/usc/38/4303.md?p=13) was less than 31 days, by reporting to the [employer](/usc/38/4303.md?p=4-A)—
      - (i) not later than the beginning of the first full regularly scheduled work period on the first full calendar day following the completion of the period of service and the expiration of eight hours after a period allowing for the safe transportation of the person from the place of that service to the person’s residence; or
      - (ii) as soon as possible after the expiration of the eight-hour period referred to in [clause (i)](#e-1-A-i), if reporting within the period referred to in such clause is impossible or unreasonable through no fault of the person.
    - (B) In the case of a person who is absent from a position of employment for a period of any length for the purposes of an examination to determine the person’s fitness to perform [service in the uniformed services](/usc/38/4303.md?p=13), by reporting in the manner and time referred to in [subparagraph (A)](#e-1-A).
    - (C) In the case of a person whose period of [service in the uniformed services](/usc/38/4303.md?p=13) was for more than 30 days but less than 181 days, by submitting an application for reemployment with the [employer](/usc/38/4303.md?p=4-A) not later than 14 days after the completion of the period of service or if submitting such application within such period is impossible or unreasonable through no fault of the person, the next first full calendar day when submission of such application becomes possible.
    - (D) In the case of a person whose period of [service in the uniformed services](/usc/38/4303.md?p=13) was for more than 180 days, by submitting an application for reemployment with the [employer](/usc/38/4303.md?p=4-A) not later than 90 days after the completion of the period of service.
  - (2)
    - (A) A person who is hospitalized for, or convalescing from, an illness or injury incurred in, or aggravated during, the performance of [service in the uniformed services](/usc/38/4303.md?p=13) shall, at the end of the period that is necessary for the person to recover from such illness or injury, report to the person’s [employer](/usc/38/4303.md?p=4-A) (in the case of a person described in subparagraph [(A)](#e-1-A) or [(B)](#e-1-B) of paragraph (1)) or submit an application for reemployment with such [employer](/usc/38/4303.md?p=4-A) (in the case of a person described in subparagraph [(C)](#e-1-C) or [(D)](#e-1-D) of such paragraph). Except as provided in [subparagraph (B)](#e-2-B), such period of recovery may not exceed two years.
    - (B) Such two-year period shall be extended by the minimum time required to accommodate the circumstances beyond such person’s control which make reporting within the period specified in [subparagraph (A)](#e-2-A) impossible or unreasonable.
  - (3) A person who fails to report or apply for employment or reemployment within the appropriate period specified in this subsection shall not automatically forfeit such person’s entitlement to the [rights and benefits](/usc/38/4303.md?p=2) referred to in [subsection (a)](#a) but shall be subject to the conduct rules, established policy, and general practices of the [employer](/usc/38/4303.md?p=4-A) pertaining to explanations and discipline with respect to absence from scheduled work.
- (f)
  - (1) A person who submits an application for reemployment in accordance with subparagraph [(C)](#e-1-C) or [(D)](#e-1-D) of subsection (e)(1) or [subsection (e)(2)](#e-2) shall provide to the person’s [employer](/usc/38/4303.md?p=4-A) (upon the request of such [employer](/usc/38/4303.md?p=4-A)) documentation to establish that—
    - (A) the person’s application is timely;
    - (B) the person has not exceeded the service limitations set forth in [subsection (a)(2)](#a-2) (except as permitted under [subsection (c)](#c)); and
    - (C) the person’s entitlement to the [benefits](/usc/38/4303.md?p=2) under this chapter has not been terminated pursuant to [section 4304](/usc/38/4304.md).
  - (2) Documentation of any matter referred to in [paragraph (1)](#f-1) that satisfies regulations prescribed by the [Secretary](/usc/38/4303.md?p=11) shall satisfy the documentation requirements in such paragraph.
  - (3)
    - (A) Except as provided in [subparagraph (B)](#f-3-B), the failure of a person to provide documentation that satisfies regulations prescribed pursuant to [paragraph (2)](#f-2) shall not be a basis for denying reemployment in accordance with the provisions of this chapter if the failure occurs because such documentation does not exist or is not readily available at the time of the request of the [employer](/usc/38/4303.md?p=4-A). If, after such reemployment, documentation becomes available that establishes that such person does not meet one or more of the requirements referred to in subparagraphs [(A)](#f-1-A), [(B)](#f-1-B), and [(C)](#f-1-C) of paragraph (1), the [employer](/usc/38/4303.md?p=4-A) of such person may terminate the employment of the person and the provision of any rights or [benefits](/usc/38/4303.md?p=2) afforded the person under this chapter.
    - (B) An [employer](/usc/38/4303.md?p=4-A) who reemploys a person absent from a position of employment for more than 90 days may require that the person provide the [employer](/usc/38/4303.md?p=4-A) with the documentation referred to in [subparagraph (A)](#f-3-A) before beginning to treat the person as not having incurred a break in service for [pension](/usc/38/101.md?p=15) purposes under [section 4318(a)(2)(A)](/usc/38/4318.md?p=a-2-A).
  - (4) An [employer](/usc/38/4303.md?p=4-A) may not delay or attempt to defeat a reemployment obligation by demanding documentation that does not then exist or is not then readily available.
- (g) The right of a person to reemployment under this section shall not entitle such person to retention, preference, or displacement rights over any person with a superior claim under the provisions of [title 5](/usc/5.md), United States Code, relating to [veterans](/usc/38/101.md?p=2) and other preference eligibles.
- (h) In any determination of a person’s entitlement to protection under this chapter, the timing, frequency, and duration of the person’s training or service, or the nature of such training or service (including voluntary service) in the [uniformed services](/usc/38/4303.md?p=17), shall not be a basis for denying protection of this chapter if the service does not exceed the limitations set forth in [subsection (c)](#c) and the [notice](/usc/38/4303.md?p=8) requirements established in [subsection (a)(1)](#a-1) and the notification requirements established in [subsection (e)](#e) are met.

# §4313. Reemployment positions

- (a) Subject to [subsection (b)](#b) (in the case of any [employee](/usc/38/4303.md?p=3)) and sections [4314](/usc/38/4314.md) and [4315](/usc/38/4315.md) (in the case of an [employee](/usc/38/4303.md?p=3) of the [Federal Government](/usc/38/4303.md?p=6)), a person entitled to reemployment under [section 4312](/usc/38/4312.md), upon completion of a period of [service in the uniformed services](/usc/38/4303.md?p=13), shall be promptly reemployed in a position of employment in accordance with the following order of priority:
  - (1) Except as provided in paragraphs [(3)](#a-3) and [(4)](#a-4), in the case of a person whose period of [service in the uniformed services](/usc/38/4303.md?p=13) was for less than 91 days—
    - (A) in the position of employment in which the person would have been employed if the continuous employment of such person with the [employer](/usc/38/4303.md?p=4-A) had not been interrupted by such service, the duties of which the person is [qualified](/usc/38/4303.md?p=9) to perform; or
    - (B) in the position of employment in which the person was employed on the date of the commencement of the [service in the uniformed services](/usc/38/4303.md?p=13), only if the person is not [qualified](/usc/38/4303.md?p=9) to perform the duties of the position referred to in [subparagraph (A)](#a-1-A) after [reasonable efforts](/usc/38/4303.md?p=10) by the [employer](/usc/38/4303.md?p=4-A) to qualify the person.
  - (2) Except as provided in paragraphs [(3)](#a-3) and [(4)](#a-4), in the case of a person whose period of [service in the uniformed services](/usc/38/4303.md?p=13) was for more than 90 days—
    - (A) in the position of employment in which the person would have been employed if the continuous employment of such person with the [employer](/usc/38/4303.md?p=4-A) had not been interrupted by such service, or a position of like [seniority](/usc/38/4303.md?p=12), status and [pay](/usc/38/7297.md?p=a-3), the duties of which the person is [qualified](/usc/38/4303.md?p=9) to perform; or
    - (B) in the position of employment in which the person was employed on the date of the commencement of the [service in the uniformed services](/usc/38/4303.md?p=13), or a position of like [seniority](/usc/38/4303.md?p=12), status and [pay](/usc/38/7297.md?p=a-3), the duties of which the person is [qualified](/usc/38/4303.md?p=9) to perform, only if the person is not [qualified](/usc/38/4303.md?p=9) to perform the duties of a position referred to in [subparagraph (A)](#a-2-A) after [reasonable efforts](/usc/38/4303.md?p=10) by the [employer](/usc/38/4303.md?p=4-A) to qualify the person.
  - (3) In the case of a person who has a disability incurred in, or aggravated during, such service, and who (after [reasonable efforts](/usc/38/4303.md?p=10) by the [employer](/usc/38/4303.md?p=4-A) to accommodate the disability) is not [qualified](/usc/38/4303.md?p=9) due to such disability to be employed in the position of employment in which the person would have been employed if the continuous employment of such person with the [employer](/usc/38/4303.md?p=4-A) had not been interrupted by such service—
    - (A) in any other position which is equivalent in [seniority](/usc/38/4303.md?p=12), status, and [pay](/usc/38/7297.md?p=a-3), the duties of which the person is [qualified](/usc/38/4303.md?p=9) to perform or would become [qualified](/usc/38/4303.md?p=9) to perform with [reasonable efforts](/usc/38/4303.md?p=10) by the [employer](/usc/38/4303.md?p=4-A); or
    - (B) if not employed under [subparagraph (A)](#a-3-A), in a position which is the nearest approximation to a position referred to in [subparagraph (A)](#a-3-A) in terms of [seniority](/usc/38/4303.md?p=12), status, and [pay](/usc/38/7297.md?p=a-3) consistent with circumstances of such person’s case.
  - (4) In the case of a person who (A) is not [qualified](/usc/38/4303.md?p=9) to be employed in (i) the position of employment in which the person would have been employed if the continuous employment of such person with the [employer](/usc/38/4303.md?p=4-A) had not been interrupted by such service, or (ii) in the position of employment in which such person was employed on the date of the commencement of the [service in the uniformed services](/usc/38/4303.md?p=13) for any reason (other than disability incurred in, or aggravated during, [service in the uniformed services](/usc/38/4303.md?p=13)), and (B) cannot become [qualified](/usc/38/4303.md?p=9) with [reasonable efforts](/usc/38/4303.md?p=10) by the [employer](/usc/38/4303.md?p=4-A), in any other position which is the nearest approximation to a position referred to first in clause (A)(i) and then in clause (A)(ii) which such person is [qualified](/usc/38/4303.md?p=9) to perform, with full [seniority](/usc/38/4303.md?p=12).
- (b)
  - (1) If two or more persons are entitled to reemployment under [section 4312](/usc/38/4312.md) in the same position of employment and more than one of them has reported for such reemployment, the person who left the position first shall have the prior right to reemployment in that position.
  - (2) Any person entitled to reemployment under [section 4312](/usc/38/4312.md) who is not reemployed in a position of employment by reason of [paragraph (1)](#b-1) shall be entitled to be reemployed as follows:
    - (A) Except as provided in [subparagraph (B)](#b-2-B), in any other position of employment referred to in subsection [(a)(1)](#a-1) or [(a)(2)](#a-2), as the case may be (in the order of priority set out in the applicable subsection), that provides a similar status and [pay](/usc/38/7297.md?p=a-3) to a position of employment referred to in paragraph (1) of this subsection, consistent with the circumstances of such person’s case, with full [seniority](/usc/38/4303.md?p=12).
    - (B) In the case of a person who has a disability incurred in, or aggravated during, a period of [service in the uniformed services](/usc/38/4303.md?p=13) that requires [reasonable efforts](/usc/38/4303.md?p=10) by the [employer](/usc/38/4303.md?p=4-A) for the person to be able to perform the duties of the position of employment, in any other position referred to in [subsection (a)(3)](#a-3) (in the order of priority set out in that subsection) that provides a similar status and [pay](/usc/38/7297.md?p=a-3) to a position referred to in paragraph (1) of this subsection, consistent with circumstances of such person’s case, with full [seniority](/usc/38/4303.md?p=12).

# §4314. Reemployment by the Federal Government

- (a) Except as provided in subsections [(b)](#b), [(c)](#c), and [(d)](#d), if a person is entitled to reemployment by the [Federal Government](/usc/38/4303.md?p=6) under [section 4312](/usc/38/4312.md), such person shall be reemployed in a position of employment as described in [section 4313](/usc/38/4313.md).
- (b)
  - (1) If the Director of the Office of Personnel Management makes a determination described in [paragraph (2)](#b-2) with respect to a person who was employed by a [Federal executive agency](/usc/38/4303.md?p=5) at the time the person entered the service from which the person seeks reemployment under this section, the Director shall—
    - (A) identify a position of like [seniority](/usc/38/4303.md?p=12), status, and [pay](/usc/38/7297.md?p=a-3) at another [Federal executive agency](/usc/38/4303.md?p=5) that satisfies the requirements of [section 4313](/usc/38/4313.md) and for which the person is [qualified](/usc/38/4303.md?p=9); and
    - (B) ensure that the person is offered such position.
  - (2) The Director shall carry out the duties referred to in subparagraphs [(A)](#b-1-A) and [(B)](#b-1-B) of paragraph (1) if the Director determines that—
    - (A) the [Federal executive agency](/usc/38/4303.md?p=5) that employed the person referred to in such paragraph no longer exists and the functions of such [agency](/usc/38/4214.md?p=a-2-A) have not been transferred to another [Federal executive agency](/usc/38/4303.md?p=5); or
    - (B) it is impossible or unreasonable for the [agency](/usc/38/4214.md?p=a-2-A) to reemploy the person.
- (c) If the [employer](/usc/38/4303.md?p=4-A) of a person described in [subsection (a)](#a) was, at the time such person entered the service from which such person seeks reemployment under this section, a part of the judicial branch or the legislative branch of the [Federal Government](/usc/38/4303.md?p=6), and such [employer](/usc/38/4303.md?p=4-A) determines that it is impossible or unreasonable for such [employer](/usc/38/4303.md?p=4-A) to reemploy such person, such person shall, upon application to the Director of the Office of Personnel Management, be ensured an offer of employment in an alternative position in a [Federal executive agency](/usc/38/4303.md?p=5) on the basis described in [subsection (b)](#b).
- (d) If the adjutant general of a [State](/usc/38/4303.md?p=14) determines that it is impossible or unreasonable to reemploy a person who was a National Guard technician employed under [section 709 of title 32](/usc/32/709.md), such person shall, upon application to the Director of the Office of Personnel Management, be ensured an offer of employment in an alternative position in a [Federal executive agency](/usc/38/4303.md?p=5) on the basis described in [subsection (b)](#b).

# §4315. Reemployment by certain Federal agencies

- (a) The head of each [agency](/usc/38/4214.md?p=a-2-A) referred to in [section 2302(a)(2)(C)(ii) of title 5](/usc/5/2302.md?p=a-2-C-ii) shall prescribe procedures for ensuring that the rights under this chapter apply to the [employees](/usc/38/4303.md?p=3) of such [agency](/usc/38/4214.md?p=a-2-A).
- (b) In prescribing procedures under [subsection (a)](#a), the head of an [agency](/usc/38/4214.md?p=a-2-A) referred to in that subsection shall ensure, to the maximum extent practicable, that the procedures of the [agency](/usc/38/4214.md?p=a-2-A) for reemploying persons who serve in the [uniformed services](/usc/38/4303.md?p=17) provide for the reemployment of such persons in the [agency](/usc/38/4214.md?p=a-2-A) in a manner similar to the manner of reemployment described in [section 4313](/usc/38/4313.md).
- (c)
  - (1) The procedures prescribed under [subsection (a)](#a) shall designate an official at the [agency](/usc/38/4214.md?p=a-2-A) who shall determine whether or not the reemployment of a person referred to in [subsection (b)](#b) by the [agency](/usc/38/4214.md?p=a-2-A) is impossible or unreasonable.
  - (2) Upon making a determination that the reemployment by the [agency](/usc/38/4214.md?p=a-2-A) of a person referred to in [subsection (b)](#b) is impossible or unreasonable, the official referred to in [paragraph (1)](#c-1) shall notify the person and the Director of the Office of Personnel Management of such determination.
  - (3) A determination pursuant to this subsection shall not be subject to judicial review.
  - (4) The head of each [agency](/usc/38/4214.md?p=a-2-A) referred to in [subsection (a)](#a) shall submit to the Select Committee on Intelligence and the Committee on [Veterans](/usc/38/101.md?p=2)’ Affairs of the Senate and the Permanent Select Committee on Intelligence and the Committee on [Veterans](/usc/38/101.md?p=2)’ Affairs of the House of Representatives on an annual basis a report on the number of persons whose reemployment with the [agency](/usc/38/4214.md?p=a-2-A) was determined under this subsection to be impossible or unreasonable during the year preceding the report, including the reason for each such determination.
- (d)
  - (1) Except as provided in this section, nothing in this section, [section 4313](/usc/38/4313.md), or [section 4325](/usc/38/4325.md) shall be construed to exempt any [agency](/usc/38/4214.md?p=a-2-A) referred to in [subsection (a)](#a) from compliance with any other substantive provision of this chapter.
  - (2) This section may not be construed—
    - (A) as prohibiting an [employee](/usc/38/4303.md?p=3) of an [agency](/usc/38/4214.md?p=a-2-A) referred to in [subsection (a)](#a) from seeking information from the [Secretary](/usc/38/4303.md?p=11) regarding assistance in seeking reemployment from the [agency](/usc/38/4214.md?p=a-2-A) under this chapter, alternative employment in the [Federal Government](/usc/38/4303.md?p=6) under this chapter, or information relating to the rights and obligations of [employee](/usc/38/4303.md?p=3) and Federal [agencies](/usc/38/4214.md?p=a-2-A) under this chapter; or
    - (B) as prohibiting such an [agency](/usc/38/4214.md?p=a-2-A) from voluntarily cooperating with or seeking assistance in or of clarification from the [Secretary](/usc/38/4303.md?p=11) or the Director of the Office of Personnel Management of any matter arising under this chapter.
- (e) The Director of the Office of Personnel Management shall ensure the offer of employment to a person in a position in a [Federal executive agency](/usc/38/4303.md?p=5) on the basis described in [subsection (b)](#b) if—
  - (1) the person was an [employee](/usc/38/4303.md?p=3) of an [agency](/usc/38/4214.md?p=a-2-A) referred to in [section 2302(a)(2)(C)(ii) of title 5](/usc/5/2302.md?p=a-2-C-ii) at the time the person entered the service from which the person seeks reemployment under this section;
  - (2) the appropriate officer of the [agency](/usc/38/4214.md?p=a-2-A) determines under [subsection (c)](#c) that reemployment of the person by the [agency](/usc/38/4214.md?p=a-2-A) is impossible or unreasonable; and
  - (3) the person submits an application to the Director for an offer of employment under this subsection.

# §4316. Rights, benefits, and obligations of persons absent from employment for service in a uniformed service

- (a) A person who is reemployed under this chapter is entitled to the [seniority](/usc/38/4303.md?p=12) and other [rights and benefits](/usc/38/4303.md?p=2) determined by [seniority](/usc/38/4303.md?p=12) that the person had on the date of the commencement of [service in the uniformed services](/usc/38/4303.md?p=13) plus the additional [seniority](/usc/38/4303.md?p=12) and [rights and benefits](/usc/38/4303.md?p=2) that such person would have attained if the person had remained continuously employed.
- (b)
  - (1) Subject to [paragraphs (2) through (6)](#b-2..b-6), a person who is absent from a position of employment by reason of [service in the uniformed services](/usc/38/4303.md?p=13) shall be—
    - (A) deemed to be on furlough or leave of absence while performing such service; and
    - (B) entitled to such other [rights and benefits](/usc/38/4303.md?p=2) not determined by [seniority](/usc/38/4303.md?p=12) as are generally provided by the [employer](/usc/38/4303.md?p=4-A) of the person to [employees](/usc/38/4303.md?p=3) having similar [seniority](/usc/38/4303.md?p=12), status, and [pay](/usc/38/7297.md?p=a-3) who are on furlough or leave of absence under a contract, agreement, policy, practice, or plan in effect at the commencement of such service or established while such person performs such service.
  - (2)
    - (A) Subject to [subparagraph (B)](#b-2-B), a person who—
      - (i) is absent from a position of employment by reason of [service in the uniformed services](/usc/38/4303.md?p=13), and
      - (ii) knowingly provides written [notice](/usc/38/4303.md?p=8) of intent not to return to a position of employment after service in the uniformed service,

      is not entitled to [rights and benefits](/usc/38/4303.md?p=2) under [paragraph (1)(B)](#b-1-B).

    - (B) For the purposes of [subparagraph (A)](#b-2-A), the [employer](/usc/38/4303.md?p=4-A) shall have the burden of proving that a person knowingly provided clear written [notice](/usc/38/4303.md?p=8) of intent not to return to a position of employment after service in the uniformed service and, in doing so, was aware of the specific [rights and benefits](/usc/38/4303.md?p=2) to be lost under [subparagraph (A)](#b-2-A).
  - (3) A person deemed to be on furlough or leave of absence under this subsection while serving in the [uniformed services](/usc/38/4303.md?p=17) shall not be entitled under this subsection to any [benefits](/usc/38/4303.md?p=2) to which the person would not otherwise be entitled if the person had remained continuously employed.
  - (4) Such person may be required to [pay](/usc/38/7297.md?p=a-3) the [employee](/usc/38/4303.md?p=3) cost, if any, of any funded [benefit](/usc/38/4303.md?p=2) continued pursuant to [paragraph (1)](#b-1) to the extent other [employees](/usc/38/4303.md?p=3) on furlough or leave of absence are so required.
  - (5) The entitlement of a person to coverage under a [health plan](/usc/38/4303.md?p=7) is provided for under [section 4317](/usc/38/4317.md).
  - (6) The entitlement of a person to a right or [benefit](/usc/38/4303.md?p=2) under an [employee](/usc/38/4303.md?p=3) [pension](/usc/38/101.md?p=15) [benefit](/usc/38/4303.md?p=2) plan is provided for under [section 4318](/usc/38/4318.md).
- (c) A person who is reemployed by an [employer](/usc/38/4303.md?p=4-A) under this chapter shall not be discharged from such employment, except for cause—
  - (1) within one year after the date of such reemployment, if the person’s period of service before the reemployment was more than 180 days; or
  - (2) within 180 days after the date of such reemployment, if the person’s period of service before the reemployment was more than 30 days but less than 181 days.
- (d) Any person whose employment with an [employer](/usc/38/4303.md?p=4-A) is interrupted by a period of [service in the uniformed services](/usc/38/4303.md?p=13) shall be permitted, upon request of that person, to use during such period of service any vacation, annual, or similar leave with [pay](/usc/38/7297.md?p=a-3) accrued by the person before the commencement of such service. No [employer](/usc/38/4303.md?p=4-A) may require any such person to use vacation, annual, or similar leave during such period of service.
- (e)
  - (1) An [employer](/usc/38/4303.md?p=4-A) shall grant an [employee](/usc/38/4303.md?p=3) who is a member of a [reserve component](/usc/38/101.md?p=27) an authorized leave of absence from a position of employment to allow that [employee](/usc/38/4303.md?p=3) to perform funeral honors duty as authorized by [section 12503 of title 10](/usc/10/12503.md) or [section 115 of title 32](/usc/32/115.md).
  - (2) For purposes of [section 4312(e)(1) of this title](/usc/38/4312.md?p=e-1), an [employee](/usc/38/4303.md?p=3) who takes an authorized leave of absence under [paragraph (1)](#e-1) is deemed to have notified the [employer](/usc/38/4303.md?p=4-A) of the [employee](/usc/38/4303.md?p=3)’s intent to return to such position of employment.

# §4317. Health plans

- (a)
  - (1) In any case in which a person (or the person’s dependents) has coverage under a [health plan](/usc/38/4303.md?p=7) in connection with the person’s position of employment, including a group [health plan](/usc/38/4303.md?p=7) (as defined in section 607(1) of the [Employee](/usc/38/4303.md?p=3) Retirement Income Security Act of 1974), and such person is absent from such position of employment by reason of [service in the uniformed services](/usc/38/4303.md?p=13), or such person becomes eligible for medical and dental care under [chapter 55](/usc/10/chstA-ptII-ch55.md) of title 10 by reason of subsection (d) of section 1074 of that title, the plan shall provide that the person may elect to continue such coverage as provided in this subsection. The maximum period of coverage of a person and the person’s dependents under such an election shall be the lesser of—
    - (A) the 24-month period beginning on the date on which the person’s absence begins; or
    - (B) the day after the date on which the person fails to apply for or return to a position of employment, as determined under [section 4312(e)](/usc/38/4312.md?p=e).
  - (2) A person who elects to continue health-plan coverage under this paragraph may be required to [pay](/usc/38/7297.md?p=a-3) not more than 102 percent of the full premium under the plan (determined in the same manner as the applicable premium under section 4980B(f)(4) of the Internal Revenue Code of 1986) associated with such coverage for the [employer](/usc/38/4303.md?p=4-A)’s other [employees](/usc/38/4303.md?p=3), except that in the case of a person who performs [service in the uniformed services](/usc/38/4303.md?p=13) for less than 31 days, such person may not be required to [pay](/usc/38/7297.md?p=a-3) more than the [employee](/usc/38/4303.md?p=3) share, if any, for such coverage.
  - (3) In the case of a [health plan](/usc/38/4303.md?p=7) that is a multiemployer plan, as defined in section 3(37) of the [Employee](/usc/38/4303.md?p=3) Retirement Income Security Act of 1974, any liability under the plan for [employer](/usc/38/4303.md?p=4-A) contributions and [benefits](/usc/38/4303.md?p=2) arising under this paragraph shall be allocated—
    - (A) by the plan in such manner as the plan sponsor shall provide; or
    - (B) if the sponsor does not provide—
      - (i) to the last [employer](/usc/38/4303.md?p=4-A) employing the person before the period served by the person in the [uniformed services](/usc/38/4303.md?p=17), or
      - (ii) if such last [employer](/usc/38/4303.md?p=4-A) is no longer functional, to the plan.
- (b)
  - (1) Except as provided in [paragraph (2)](#b-2), in the case of a person whose coverage under a [health plan](/usc/38/4303.md?p=7) was terminated by reason of [service in the uniformed services](/usc/38/4303.md?p=13), or by reason of the person’s having become eligible for medical and dental care under [chapter 55](/usc/10/chstA-ptII-ch55.md) of title 10 by reason of subsection (d) of section 1074 of that title, an exclusion or waiting period may not be imposed in connection with the reinstatement of such coverage upon reemployment under this chapter if an exclusion or waiting period would not have been imposed under a [health plan](/usc/38/4303.md?p=7) had coverage of such person by such plan not been terminated as a result of such service or eligibility. This paragraph applies to the person who is reemployed and to any individual who is covered by such plan by reason of the reinstatement of the coverage of such person.
  - (2) [Paragraph (1)](#b-1) shall not apply to the coverage of any illness or injury determined by the [Secretary](/usc/38/4303.md?p=11) of [Veterans](/usc/38/101.md?p=2) Affairs to have been incurred in, or aggravated during, performance of [service in the uniformed services](/usc/38/4303.md?p=13).
  - (3) In the case of a person whose coverage under a [health plan](/usc/38/4303.md?p=7) is terminated by reason of the person having become eligible for medical and dental care under [chapter 55](/usc/10/chstA-ptII-ch55.md) of title 10 by reason of subsection (d) of section 1074 of that title but who subsequently does not commence a period of [active duty](/usc/38/101.md?p=21) under the order to [active duty](/usc/38/101.md?p=21) that established such eligibility because the order is canceled before such [active duty](/usc/38/101.md?p=21) commences, the provisions of [paragraph (1)](#b-1) relating to any exclusion or waiting period in connection with the reinstatement of coverage under a [health plan](/usc/38/4303.md?p=7) shall apply to such person’s continued employment, upon the termination of such eligibility for medical and dental care under [chapter 55](/usc/10/chstA-ptII-ch55.md) of title 10 that is incident to the cancellation of such order, in the same manner as if the person had become reemployed upon such termination of eligibility.

# §4318. Employee pension benefit plans

- (a)
  - (1)
    - (A) Except as provided in [subparagraph (B)](#a-1-B), in the case of a right provided pursuant to an [employee](/usc/38/4303.md?p=3) [pension](/usc/38/101.md?p=15) [benefit](/usc/38/4303.md?p=2) plan (including those described in sections 3(2) and 3(33) of the [Employee](/usc/38/4303.md?p=3) Retirement Income Security Act of 1974) or a right provided under any Federal or [State](/usc/38/4303.md?p=14) law governing [pension](/usc/38/101.md?p=15) [benefits](/usc/38/4303.md?p=2) for governmental [employees](/usc/38/4303.md?p=3), the right to [pension](/usc/38/101.md?p=15) [benefits](/usc/38/4303.md?p=2) of a person reemployed under this chapter shall be determined under this section.
    - (B) In the case of [benefits](/usc/38/4303.md?p=2) under the Thrift Savings Plan, the rights of a person reemployed under this chapter shall be those rights provided in [section 8432b of title 5](/usc/5/8432b.md). The first sentence of this subparagraph shall not be construed to affect any other right or [benefit](/usc/38/4303.md?p=2) under this chapter.
  - (2)
    - (A) A person reemployed under this chapter shall be treated as not having incurred a break in service with the [employer](/usc/38/4303.md?p=4-A) or [employers](/usc/38/4303.md?p=4-A) maintaining the plan by reason of such person’s period or periods of [service in the uniformed services](/usc/38/4303.md?p=13).
    - (B) Each period served by a person in the [uniformed services](/usc/38/4303.md?p=17) shall, upon reemployment under this chapter, be deemed to constitute service with the [employer](/usc/38/4303.md?p=4-A) or [employers](/usc/38/4303.md?p=4-A) maintaining the plan for the purpose of determining the nonforfeitability of the person’s accrued [benefits](/usc/38/4303.md?p=2) and for the purpose of determining the accrual of [benefits](/usc/38/4303.md?p=2) under the plan.
- (b)
  - (1) An [employer](/usc/38/4303.md?p=4-A) reemploying a person under this chapter shall, with respect to a period of service described in [subsection (a)(2)(B)](#a-2-B), be liable to an [employee](/usc/38/4303.md?p=3) [pension](/usc/38/101.md?p=15) [benefit](/usc/38/4303.md?p=2) plan for funding any obligation of the plan to provide the [benefits](/usc/38/4303.md?p=2) described in [subsection (a)(2)](#a-2) and shall allocate the amount of any [employer](/usc/38/4303.md?p=4-A) contribution for the person in the same manner and to the same extent the allocation occurs for other [employees](/usc/38/4303.md?p=3) during the period of service. For purposes of determining the amount of such liability and any obligation of the plan, earnings and forfeitures shall not be included. For purposes of determining the amount of such liability and for purposes of section 515 of the [Employee](/usc/38/4303.md?p=3) Retirement Income Security Act of 1974 or any similar Federal or [State](/usc/38/4303.md?p=14) law governing [pension](/usc/38/101.md?p=15) [benefits](/usc/38/4303.md?p=2) for governmental [employees](/usc/38/4303.md?p=3), [service in the uniformed services](/usc/38/4303.md?p=13) that is deemed under [subsection (a)](#a) to be service with the [employer](/usc/38/4303.md?p=4-A) shall be deemed to be service with the [employer](/usc/38/4303.md?p=4-A) under the terms of the plan or any applicable collective bargaining agreement. In the case of a multiemployer plan, as defined in section 3(37) of the [Employee](/usc/38/4303.md?p=3) Retirement Income Security Act of 1974, any liability of the plan described in this paragraph shall be allocated—
    - (A) by the plan in such manner as the sponsor maintaining the plan shall provide; or
    - (B) if the sponsor does not provide—
      - (i) to the last [employer](/usc/38/4303.md?p=4-A) employing the person before the period served by the person in the [uniformed services](/usc/38/4303.md?p=17), or
      - (ii) if such last [employer](/usc/38/4303.md?p=4-A) is no longer functional, to the plan.
  - (2) A person reemployed under this chapter shall be entitled to accrued [benefits](/usc/38/4303.md?p=2) pursuant to [subsection (a)](#a) that are contingent on the making of, or derived from, [employee](/usc/38/4303.md?p=3) contributions or elective deferrals (as defined in section 402(g)(3) of the Internal Revenue Code of 1986) only to the extent the person makes payment to the plan with respect to such contributions or deferrals. No such payment may exceed the amount the person would have been permitted or required to contribute had the person remained continuously employed by the [employer](/usc/38/4303.md?p=4-A) throughout the period of service described in [subsection (a)(2)(B)](#a-2-B). Any payment to the plan described in this paragraph shall be made during the period beginning with the date of reemployment and whose duration is three times the period of the person’s [service in the uniformed services](/usc/38/4303.md?p=13), such payment period not to exceed five years.
  - (3) For purposes of computing an [employer](/usc/38/4303.md?p=4-A)’s liability under [paragraph (1)](#b-1) or the [employee](/usc/38/4303.md?p=3)’s contributions under [paragraph (2)](#b-2), the [employee](/usc/38/4303.md?p=3)’s [compensation](/usc/38/101.md?p=13) during the period of service described in [subsection (a)(2)(B)](#a-2-B) shall be computed—
    - (A) at the rate the [employee](/usc/38/4303.md?p=3) would have received but for the period of service described in [subsection (a)(2)(B)](#a-2-B), or
    - (B) in the case that the determination of such rate is not reasonably certain, on the basis of the [employee](/usc/38/4303.md?p=3)’s average rate of [compensation](/usc/38/101.md?p=13) during the 12-month period immediately preceding such period (or, if shorter, the period of employment immediately preceding such period).
- (c) Any [employer](/usc/38/4303.md?p=4-A) who reemploys a person under this chapter and who is an [employer](/usc/38/4303.md?p=4-A) contributing to a multiemployer plan, as defined in section 3(37) of the [Employee](/usc/38/4303.md?p=3) Retirement Income Security Act of 1974, under which [benefits](/usc/38/4303.md?p=2) are or may be payable to such person by reason of the obligations set forth in this chapter, shall, within 30 days after the date of such reemployment, provide information, in writing, of such reemployment to the administrator of such plan.