38 U.S.C. § 4312 — Reemployment rights of persons who

Page 1002 TITLE 38—VETERANS’ BENEFITS § 4312 perform, or has an obligation to perform service in a uniformed service shall not be denied initial employment, reemployment, retention in em- ployment, promotion, or any benefit of employ- ment by an employer on the basis of that mem- bership, application for membership, perform- ance of service, application for service, or obli- gation. (b) An employer may not discriminate in em- ployment against or take any adverse employ- ment action or other retaliatory action against any person because such person (1) has taken an action to enforce a protection afforded any per- son under this chapter, (2) has testified or other- wise made a statement in or in connection with any proceeding under this chapter, (3) has as- sisted or otherwise participated in an investiga- tion under this chapter, or (4) has exercised a right provided for in this chapter. The prohibi- tion in this subsection shall apply with respect to a person regardless of whether that person has performed service in the uniformed services. (c) An employer shall be considered to have engaged in actions prohibited— (1) under subsection (a), if the person’s mem- bership, application for membership, service, application for service, or obligation for serv- ice in the uniformed services is a motivating factor in the employer’s action, unless the em- ployer can prove that the action would have been taken in the absence of such membership, application for membership, service, applica- tion for service, or obligation for service; or (2) under subsection (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) as- sistance or other participation in an investiga- tion under this chapter, or (D) exercise of a right provided for in this chapter, is a moti- vating factor in the employer’s action, unless the employer can prove that the action would have been taken in the absence of such per- son’s enforcement action, testimony, state- ment, assistance, participation, or exercise of a right. (d) The prohibitions in subsections (a) and (b) shall apply to any position of employment, in- cluding a position that is described in section 4312(d)(1)(C) of this title. (Added Pub. L. 103–353, § 2(a), Oct. 13, 1994, 108 Stat. 3153; amended Pub. L. 104–275, title III, § 311(3), Oct. 9, 1996, 110 Stat. 3334; Pub. L. 118–210, title II, § 221(b), Jan. 2, 2025, 138 Stat. 2778.) Editorial Notes PRIOR PROVISIONS A prior section 4311 was renumbered section 7611 of this title. AMENDMENTS 2025—Subsec. (b). Pub. L. 118–210 inserted ‘‘or other retaliatory action’’ after ‘‘employment action’’. 1996—Subsec. (b). Pub. L. 104–275 added subsec. (b) and struck out former subsec. (b) which read as follows: ‘‘An employer shall be considered to have denied a per- son initial employment, reemployment, retention in employment, promotion, or a benefit of employment in violation of this section if the person’s membership, ap- plication for membership, service, application for serv- ice, or obligation for service in the uniformed services is a motivating factor in the employer’s action, unless the employer can prove that the action would have been taken in the absence of such membership, applica- tion for membership, performance of service, applica- tion for service, or obligation.’’ Subsecs. (c), (d). Pub. L. 104–275 added subsecs. (c) and (d) and struck out former subsec. (c) which read as fol- lows: ‘‘(c)(1) An employer may not discriminate in employ- ment against or take any adverse employment action against any person because such person has taken an action to enforce a protection afforded any person under this chapter, has testified or otherwise made a statement in or in connection with any proceeding under this chapter, has assisted or otherwise partici- pated in an investigation under this chapter, or has ex- ercised a right provided for in this chapter. ‘‘(2) The prohibition in paragraph (1) shall apply with respect to a person regardless of whether that person has performed service in the uniformed services and shall apply to any position of employment, including a position that is described in section 4312(d)(1)(C).’’ Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1996 AMENDMENT Amendment by Pub. L. 104–275 effective Oct. 13, 1994, see section 313 of Pub. L. 104–275, set out as a note under section 4301 of this title. EFFECTIVE DATE Section effective Oct. 13, 1994, except as otherwise provided, see section 8 of Pub. L. 103–353, set out as a note under section 4301 of this title. § 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 rea- son of service in the uniformed services shall be entitled to the reemployment rights and bene- fits and other employment benefits of this chap- ter 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 em- ployment with that employer by reason of service in the uniformed services does not ex- ceed five years; and (3) except as provided in subsection (f), the person reports to, or submits an application for reemployment to, such employer in accord- ance with the provisions of subsection (e). (b)(1) 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 oth- erwise impossible or unreasonable. (2) A determination of military necessity for purposes of paragraph (1) shall be made— (A) except as provided in subparagraphs (B) and (C), pursuant to regulations prescribed by the Secretary of Defense; (B) for persons performing service to the Federal Emergency Management Agency under section 327 of the Robert T. Stafford Page 1003 TITLE 38—VETERANS’ BENEFITS § 4312 1 So in original. The closing parenthesis probably should follow ‘‘respectively’’. 2 See References in Text note below. Disaster Relief and Emergency Assistance Act (42 U.S.C. 5165f) and as intermittent personnel under section 306(b)(1) of such Act (42 U.S.C. 5149(b)(1)), by the Administrator of the Federal Emergency Management Agency as described in sections 327(j)(2) and 306(d)(2) of such Act (42 U.S.C. 5165f(j)(2) and 5149(d)(2)),1 respectively; or (C) for intermittent disaster-response ap- pointees of the National Disaster Medical Sys- tem, by the Secretary 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)). (3) A determination of military necessity under paragraph (1) shall not be subject to judi- cial review. (c) Subsection (a) shall apply to a person who is absent from a position of employment by rea- son of service in the uniformed services if such person’s cumulative period of service in the uni- formed services, with respect to the employer relationship for which a person seeks reemploy- ment, 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 pe- riod 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 re- quirements determined and certified in writ- ing by the Secretary concerned, to be nec- essary 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, 12304a, 12304b, or 12305 of title 10 or under section 331, 332, 359, 360, 367, or 712 2 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 emer- gency declared by the President or the Con- gress, as determined by the Secretary con- cerned; (C) ordered to active duty (other than for training) in support, as determined by the Secretary concerned, of an operational mis- sion 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 uni- formed services; (E) called into Federal service as a mem- ber of the National Guard under chapter 15 2 of title 10 or under section 12406 of title 10; or (F) ordered to full-time National Guard duty (other than for training) under section 502(f)(2)(A) of title 32 when authorized by the President or the Secretary of Defense for the purpose of responding to a national emer- gency declared by the President and sup- ported by Federal funds, as determined by the Secretary concerned. (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 im- possible or unreasonable; (B) in the case of a person entitled to reem- ployment under subsection (a)(3), (a)(4), or (b)(2)(B) of section 4313, such employment would impose an undue hardship on the em- ployer; 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 para- graph (1) is impossible or unreasonable be- cause of a change in an employer’s cir- cumstances, (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 expecta- tion of continuing indefinitely or for a signifi- cant period. (e)(1) Subject to paragraph (2), a person re- ferred to in subsection (a) shall, upon the com- pletion 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 comple- tion of the period of service and the expira- tion 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 Page 1004 TITLE 38—VETERANS’ BENEFITS § 4312 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 subpara- graph (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 submit- ting an application for reemployment with the employer not later than 14 days after the com- pletion of the period of service or if submit- ting such application within such period is im- possible 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 con- valescing 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 re- cover from such illness or injury, report to the person’s employer (in the case of a person de- scribed in subparagraph (A) or (B) of paragraph (1)) or submit an application for reemployment with such employer (in the case of a person de- scribed in subparagraph (C) or (D) of such para- graph). 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 speci- fied in subparagraph (A) impossible or unreason- able. (3) A person who fails to report or apply for employment or reemployment within the appro- priate period specified in this subsection shall not automatically forfeit such person’s entitle- ment to the rights and benefits referred to in subsection (a) but shall be subject to the con- duct rules, established policy, and general prac- tices 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 es- tablish that— (A) the person’s application is timely; (B) the person has not exceeded the service limitations set forth in subsection (a)(2) (ex- cept 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 pre- scribed by the Secretary shall satisfy the docu- mentation 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 re- employment 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 em- ployer. If, after such reemployment, documenta- tion becomes available that establishes that such person does not meet one or more of the re- quirements 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 bene- fits afforded the person under this chapter. (B) An employer who reemploys a person ab- sent from a position of employment for more than 90 days may require that the person pro- vide the employer with the documentation re- ferred to in subparagraph (A) before beginning to treat the person as not having incurred a break in service for pension purposes under sec- tion 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, relat- ing to veterans and other preference eligibles. (h) In any determination of a person’s entitle- ment to protection under this chapter, the tim- ing, frequency, and duration of the person’s training or service, or the nature of such train- ing 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 sub- section (c) and the notice requirements estab- lished in subsection (a)(1) and the notification requirements established in subsection (e) are met. (Added Pub. L. 103–353, § 2(a), Oct. 13, 1994, 108 Stat. 3153; amended Pub. L. 104–275, title III, § 311(4), Oct. 9, 1996, 110 Stat. 3334; Pub. L. 112–81, div. A, title V, § 575, Dec. 31, 2011, 125 Stat. 1428; Pub. L. 114–92, div. A, title V, § 562, Nov. 25, 2015, 129 Stat. 829; Pub. L. 117–178, § 3(b), Sept. 29, 2022, 136 Stat. 2111.) Editorial Notes REFERENCES IN TEXT Sections 331, 332, 359, 360, 367, and 712 of title 14, re- ferred to in subsec. (c)(4)(A), were redesignated sections 2127, 2128, 2308, 2309, 2314, and 3713, respectively, of title 14 by Pub. L. 115–282, title I, §§ 112(b), 113(b), 118(b), Dec. 4, 2018, 132 Stat. 4216, 4221, 4233, and references to sec- tion 331, 332, 359, 360, 367, or 712 of title 14 deemed to refer to such redesignated sections, see section 123(b)(1) of Pub. L. 115–282, set out as a References to Redesig- nated Sections of Title 14 note preceding section 101 of Title 14, Coast Guard. Chapter 15 of title 10, referred to in subsec. (c)(4)(E), was redesignated chapter 13 of title 10 by Pub. L. 114–328, div. A, title XII, § 1241(a)(1), Dec. 23, 2016, 130 Stat. 2497. PRIOR PROVISIONS A prior section 4312 was renumbered section 7612 of this title. Page 1005 TITLE 38—VETERANS’ BENEFITS § 4313 AMENDMENTS 2022—Subsec. (b). Pub. L. 117–178 designated existing provisions as par. (1), struck out second sentence which read ‘‘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.’’, and added pars. (2) and (3). 2015—Subsec. (c)(4)(A). Pub. L. 114–92 inserted ‘‘12304a, 12304b,’’ after ‘‘12304,’’. 2011—Subsec. (c)(4)(F). Pub. L. 112–81 added subpar. (F). 1996—Subsec. (a). Pub. L. 104–275, § 311(4)(A), sub- stituted ‘‘whose absence from a position of employment is necessitated’’ for ‘‘who is absent from a position of employment’’. Subsec. (c)(3). Pub. L. 104–275, § 311(4)(B)(i), sub- stituted ‘‘section 10147’’ for ‘‘section 270’’. Subsec. (c)(4)(A). Pub. L. 104–275, § 311(4)(B)(ii)(I), sub- stituted ‘‘section 688, 12301(a), 12301(g), 12302, 12304, or 12305’’ for ‘‘section 672(a), 672(g), 673, 673b, 673c, or 688’’. Subsec. (c)(4)(B). Pub. L. 104–275, § 311(4)(B)(ii)(II), amended subpar. (B) generally. Prior to amendment, subpar. (B) read as follows: ‘‘ordered to or retained on active duty (other than for training) under any provi- sion of law during a war or during a national emer- gency declared by the President or the Congress;’’. Subsec. (c)(4)(C). Pub. L. 104–275, § 311(4)(B)(ii)(III), substituted ‘‘section 12304’’ for ‘‘section 673b’’. Subsec. (c)(4)(E). Pub. L. 104–275, § 311(4)(B)(ii)(IV), substituted ‘‘section 12406’’ for ‘‘section 3500 or 8500’’. Subsec. (d)(2)(C). Pub. L. 104–275, § 311(4)(C), sub- stituted ‘‘is for a brief, nonrecurrent period and there is no reasonable expectation’’ for ‘‘is brief or for a non- recurrent period and without a reasonable expecta- tion’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1996 AMENDMENT Amendment by section 311(4)(A), (B)(ii)(II), (C) of Pub. L. 104–275 effective Oct. 13, 1994, and amendment by section 311(4)(B)(i), (ii)(I), (III), (IV) of Pub. L. 104–275 effective Dec. 1, 1994, see section 313 of Pub. L. 104–275, set out as a note under section 4301 of this title. EFFECTIVE DATE Section effective with respect to reemployments ini- tiated on or after the first day after the 60-day period beginning Oct. 13, 1994, with transition rules, and with provisions relating to satisfaction of the notification requirement of subsec. (a)(1) of this section, see section 8 of Pub. L. 103–353, set out as a note under section 4301 of this title. § 4313. Reemployment positions (a) Subject to subsection (b) (in the case of any employee) and sections 4314 and 4315 (in the case of an employee of the Federal Government), a person entitled to reemployment under section 4312, upon completion of a period of service in the uniformed services, shall be promptly reem- ployed in a position of employment in accord- ance with the following order of priority: (1) Except as provided in paragraphs (3) and (4), in the case of a person whose period of service in the uniformed services 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 had not been interrupted by such service, the duties of which the person is qualified 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 uni- formed services, only if the person is not qualified to perform the duties of the posi- tion referred to in subparagraph (A) after reasonable efforts by the employer to qual- ify the person. (2) Except as provided in paragraphs (3) and (4), in the case of a person whose period of service in the uniformed services 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 had not been interrupted by such service, or a position of like seniority, status and pay, the duties of which the per- son is qualified 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 uni- formed services, or a position of like senior- ity, status and pay, the duties of which the person is qualified to perform, only if the person is not qualified to perform the duties of a position referred to in subparagraph (A) after reasonable efforts by the employer to qualify the person. (3) In the case of a person who has a dis- ability incurred in, or aggravated during, such service, and who (after reasonable efforts by the employer to accommodate the disability) is not qualified 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 had not been interrupted by such service— (A) in any other position which is equiva- lent in seniority, status, and pay, the duties of which the person is qualified to perform or would become qualified to perform with reasonable efforts by the employer; or (B) if not employed under subparagraph (A), in a position which is the nearest ap- proximation to a position referred to in sub- paragraph (A) in terms of seniority, status, and pay consistent with circumstances of such person’s case. (4) In the case of a person who (A) is not qualified 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 had not been interrupted by such service, or (ii) in the posi- tion of employment in which such person was employed on the date of the commencement of the service in the uniformed services for any reason (other than disability incurred in, or aggravated during, service in the uniformed services), and (B) cannot become qualified with reasonable efforts by the employer, in any other position which is the nearest ap- proximation to a position referred to first in clause (A)(i) and then in clause (A)(ii) which such person is qualified to perform, with full seniority. (b)(1) If two or more persons are entitled to re- employment under section 4312 in the same posi- tion of employment and more than one of them