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U.S. Code as of:
01/19/04
Section 4312. Reemployment rights of persons who serve in the uniformed services
(a) Subject to subsections (b), (c), and (d) and to section 4304,
any person whose absence from a position of employment is
necessitated by reason of service in the uniformed services shall
be entitled to the reemployment rights and benefits and other
employment benefits 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 of such service to such person's
employer;
(2) the cumulative length of the absence and of all previous
absences from a position of employment with that employer by
reason of service in the uniformed services does not exceed five
years; and
(3) except as provided in subsection (f), the person reports
to, or submits an application for reemployment to, such employer
in accordance with the provisions of subsection (e).
(b) No notice is required under subsection (a)(1) if the giving
of such notice is precluded by military necessity or, under all of
the relevant circumstances, the giving of such notice is otherwise
impossible or unreasonable. A determination of military necessity
for the purposes of this subsection shall be made pursuant to
regulations prescribed by the Secretary of Defense and shall not be
subject to judicial review.
(c) Subsection (a) shall apply to a person who is absent from a
position of employment by reason of service in the uniformed
services if such person's cumulative period of service in the
uniformed services, with respect to the employer 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 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, under section 502(a) or 503 of title 32, or to fulfill
additional training requirements determined and certified in
writing by the Secretary concerned, 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 under section 688,
12301(a), 12301(g), 12302, 12304, or 12305 of title 10 or under
section 331, 332, 359, 360, 367, or 712 of title 14;
(B) ordered to or retained on active duty (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;
(C) ordered to active duty (other than for training) in
support, as determined by the Secretary concerned, of an
operational mission for which personnel have been ordered to
active duty under section 12304 of title 10;
(D) ordered to active duty in support, as determined by the
Secretary concerned, of a critical mission or requirement of
the uniformed services; or
(E) called into Federal service as a member of the National
Guard under chapter 15 of title 10 or under section 12406 of
title 10.
(d)(1) An employer is not required to reemploy a person under
this chapter if -
(A) the employer'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), (a)(4), or (b)(2)(B) of section 4313, such
employment would impose an undue hardship on the employer; or
(C) the employment from which the person leaves to serve in the
uniformed services 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) is impossible
or unreasonable because of a change in an employer's
circumstances,
(B) any accommodation, training, or effort referred to in
subsection (a)(3), (a)(4), or (b)(2)(B) of section 4313 would
impose an undue hardship on the employer, or
(C) the employment referred to in paragraph (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 shall have the burden of proving the impossibility or
unreasonableness, undue hardship, 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), a person referred to in
subsection (a) shall, upon the completion of a period of service in
the uniformed services, notify the employer referred to in such
subsection of the person's intent to return to a position of
employment with such employer as follows:
(A) In the case of a person whose period of service in the
uniformed services was less than 31 days, by reporting to the
employer -
(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), 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, by reporting in the manner and time
referred to in subparagraph (A).
(C) In the case of a person whose period of service in the
uniformed services was for more than 30 days but less than 181
days, by submitting an application for reemployment with the
employer 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 was for more than 180 days, by submitting an
application for reemployment with the employer 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 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 (in the case of
a person described in subparagraph (A) or (B) of paragraph (1)) or
submit an application for reemployment with such employer (in the
case of a person described in subparagraph (C) or (D) of such
paragraph). Except as provided in subparagraph (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) 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 referred to in subsection
(a) but shall be subject to the conduct rules, established policy,
and general practices of the employer 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) or (D) of subsection (e)(1) or
subsection (e)(2) shall provide to the person's employer (upon the
request of such employer) 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) (except as permitted under subsection
(c)); and
(C) the person's entitlement to the benefits under this chapter
has not been terminated pursuant to section 4304.
(2) Documentation of any matter referred to in paragraph (1) that
satisfies regulations prescribed by the Secretary shall satisfy the
documentation requirements in such paragraph.
(3)(A) Except as provided in subparagraph (B), the failure of a
person to provide documentation that satisfies regulations
prescribed pursuant to paragraph (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. 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), (B), and
(C) of paragraph (1), the employer of such person may terminate the
employment of the person and the provision of any rights or
benefits afforded the person under this chapter.
(B) An employer who reemploys a person absent from a position of
employment for more than 90 days may require that the person
provide the employer with the documentation referred to in
subparagraph (A) before beginning to treat the person as not having
incurred a break in service for pension purposes under section
4318(a)(2)(A).
(4) An employer 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, United States Code, relating to veterans 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,
shall not be a basis for denying protection of this chapter if the
service does not exceed the limitations set forth in subsection (c)
and the notice requirements established in subsection (a)(1) and
the notification requirements established in subsection (e) are
met.
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