Laws: Cases and Codes : U.S. Code : Title 38 : Section 4312


   
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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