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Employment Rights and Benefits of Federal Civilian Employees Who Perform Active Military Duty

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Employment Rights and Benefits of Federal Civilian Employees Who Perform Active Military Duty Employment Rights and Benefits of Federal Civilian Employees Who Perform Active Military Duty A Mandatory Reference for ADS Chapter 476 Partial Revision Date: 10/14/2015 Responsible Office: HCTM/PPSM File Name: 476maf_101415 10/14/2015 Partial Revision EMPLOYMENT RIGHTS AND BENEFITS OF FEDERAL CIVILIAN EMPLOYEES WHO PERFORM ACTIVE MILITARY DUTY OVERVIEW Federal law provides many important rights and benefits for Federal employees who perform active military duty. This mandatory reference provides an overview of these rights and benefits. The Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) generally requires an agency to place an employee entering the military in a nonpay status unless the employee chooses to be placed on military leave or annual leave, as appropriate, or the employee requests to be separated. Employees who are called to active duty must submit a copy of their military orders to their supervisor and to their assigned Staffing Specialist in Human Capital and Talent Management, Human Capital Services Center, Civil Service Staffing (HCTM/HCSC/CSS) or Human Capital and Talent Management, Foreign Service Center, Foreign Service Staffing (HCTM/FSC/FSS), as appropriate. To be entitled to restoration rights, as described in Section 12 (Return to Civilian Duty) of this reference, advance notice of the service must be provided, unless it is precluded by military necessity or the giving of notice is otherwise impossible or unreasonable (5 CFR 353.204). On receiving notification that an employee will be entering active duty, the assigned Staffing Specialist is responsible for providing the appropriate Agency notice, this reference, AID Form 476-3 (Federal Employees’ Group Life Insurance (FEGLI) Program Election Form: Extension of Coverage When Called to Active Duty), and AID Form 476-1 (Checklist for Employees Called to Active Duty) to the employee, as well as for providing consultation on the documents. If employees will be placed on a nonpay status or will separate from civilian service, they are responsible for completing AID Form 476-1 (Checklist for Employees Called to Active Duty) and submitting it to their Staffing Specialist as soon as possible. While the AID Form 476-3 (Federal Employees’ Group Life Insurance (FEGLI) Program Election Form: Extension of Coverage When Called to Active Duty) must be submitted before the end of 12 months in nonpay status to continue the FEGLI coverage, it can also be submitted along with the AID Form 476-1 (Checklist for Employees Called to Active Duty). On notification of the employee’s intent to return to civilian duty, the Staffing Specialist must provide this reference and AID Form 476-2 (Checklist for Employees Returning from Active Duty) to the employee. Employees are responsible for completing the form and submitting it to their Staffing Specialist. Civilian Federal employees who are members of the Uniformed Services and who are called to active duty (or volunteer for active duty or full-time National Guard duty) are entitled to the following rights and benefits: 2 10/14/2015 Partial Revision SECTION 1: PAY Employees performing active military duty will receive compensation from the Armed Forces in accordance with the terms and conditions of their military enlistment or commission. They will not receive any compensation from their civilian employing agency unless they meet the conditions for receiving a reservist differential as described in section 2 (Reservist Differential), below, or if they elect to use military leave or annual leave as described in sections 3 (Military Leave) and 4 (Annual Leave), below. As usual, agencies should continue the payment of availability pay for criminal investigators and annual premium pay for administratively uncontrollable overtime (AUO) work, or regularly scheduled standby duty, on days of military leave or annual leave. SECTION 2: RESERVIST DIFFERENTIAL Under 5 U.S.C. 5538, employing agencies must provide a payment – a “reservist differential” – equal to the amount by which an employee’s projected civilian basic pay for a covered pay period exceeds the employee’s actual military pay and allowances for that pay period. A reservist differential under section 5538 is payable to a covered employee during a qualifying period during which the employee meets both of the following conditions: 1. The employee is absent from a Federal civilian position in order to perform active duty in the uniformed services pursuant to a call or order to active duty under a provision of law referred to in 10 U.S.C. 101(a)(13)(B) (as described in Part 1 of Appendix D of the OPM Policy Guidance Regarding Reservist Differential under 5 U.S.C. 5538 at http://www.opm.gov/reservist/ReservistDifferentialPolicyGuidance.pdf), and is serving on such active duty; and 2. The employee is entitled to reemployment rights under the Uniformed Services Employment and Reemployment Rights Act (USERRA – 38 U.S.C. Chapter 43) for such active duty. For more information on the reservist differential, see the Agency policy notice “Reservist Differential Guidance,” dated 7/30/2010. This notice also includes procedures for submitting claims for the differential. The notice stated that the Office of Personnel Management would offer further guidance regarding agencies’ obligation, if any, to pay the reservist differential for a period after completion of active duty and prior to the effective date of a statutory amendment made by section 745 of Public Law 111-117 (December 16, 2009). This guidance was since provided in a Reservist Differential Policy Update Memorandum issued on 4/13/2011 and is at http://www.chcoc.gov/transmittals/TransmittalDetails.aspx?TransmittalID=3155. The Office of Personnel Management’s Reservist Differential Frequently Asked Questions and Answers are at http://www.opm.gov/reservist/RDFAQs.asp. Additional information from the Office of Personnel Management (OPM) on the reservist differential is at http://www.opm.gov/reservist/ and includes OPM Policy Guidance Regarding Reservist Differential under 5 U.S.C. 5538. 3 10/14/2015 Partial Revision SECTION 3: MILITARY LEAVE Employees who perform active military duty may request paid military leave, as specified in 5 U.S.C. 6323(a). Under the law, an eligible full-time employee accrues 15 days (120 hours) of military leave each fiscal year. In addition, effective November 24, 2003, employees who perform full-time military service as a result of a call or order to active duty in support of a contingency operation as defined in section 101(a)(13) of title 10, United States Code, are entitled to 22 days of military leave under 5 U.S.C. 6323(b). Under this provision the employee is entitled to the greater of his military or civilian pay: The term “contingency operation” means a military operation that – (A) is designated by the Secretary of Defense as an operation in which members of the armed forces are or may become involved in military actions, operations, or hostilities against an enemy of the United States or against an opposing military force; or (B) results in the call or order to, or retention on, active duty of members of the uniformed services under section 688, 12301(a), 12302, 12304, 12305, or 12406 of this title, chapter 15 of this title, or any other provision of law during a war or during a national emergency declared by the President or Congress (for a further description of 10 U.S.C. 101(a)(13)(B) see Part 1 of Appendix D of the OPM Policy Guidance Regarding Reservist Differential under 5 U.S.C. 5538 at http://www.opm.gov/reservist/ReservistDifferentialPolicyGuidance.pdf). For more information, see OPM's fact sheet on military leave at http://www.opm.gov/oca/leave/HTML/military.HTM and Frequently Asked Questions on Military Leave at http://www.opm.gov/oca/LEAVE/HTML/MILQA.asp. SECTION 4: ANNUAL LEAVE Employees who perform active military duty may request the use of accrued and accumulated annual leave to their credit (under 5 U.S.C. 6303 and 6304), and such requests must be granted by the agency. In addition, requests for advanced annual leave may be granted at the agency’s discretion. See http://www.opm.gov/oca/leave/HTML/ANNUAL.HTM for more information on annual leave. Employees who use annual leave will receive compensation from their civilian position for all hours charged to annual leave in addition to their military pay for the same period. Employees who enter into active military duty may choose to (1) have their annual leave remain to their credit until they return to their civilian position, or (2) receive a lump-sum payment for all accrued and accumulated annual leave. See http://www.opm.gov/oca/leave/HTML/lumpsum.htm for more information on lump-sum payments for annual leave. 4 10/14/2015 Partial Revision On the AID Form 476-1, Checklist for Employees Called to Active Duty, employees can choose to have their annual leave remain to their credit or receive a lump-sum payment. SECTION 5: ADMINISTRATIVE LEAVE An employee is entitled to 5 days of excused absence after returning from active military service in connection with the continuing Global War on Terrorism (GWOT). This excused absence is received each time the employee returns from active military service in connection with Operation Noble Eagle, Operation Enduring Freedom, Operation Iraqi Freedom, and any other current or future military operations deemed to be part of the GWOT. Upon receiving notification from an employee on his or her intent to return to civilian duty on a specific date, the Agency must grant the employee 5 days of excused absence immediately prior to the employee’s actual resumption of duties. In order to receive the 5 days of excused absence, members must spend at least 42 consecutive days on active duty in support of the GWOT.
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