38 U.S.C. § 4316 — Rights, benefits, and obligations of per-

Page 1007 TITLE 38—VETERANS’ BENEFITS § 4316 practicable, that the procedures of the agency for reemploying persons who serve in the uni- formed services provide for the reemployment of such persons in the agency in a manner similar to the manner of reemployment described in sec- tion 4313. (c)(1) The procedures prescribed under sub- section (a) shall designate an official at the agency who shall determine whether or not the reemployment of a person referred to in sub- section (b) by the agency is impossible or unrea- sonable. (2) Upon making a determination that the re- employment by the agency of a person referred to in subsection (b) is impossible or unreason- able, the official referred to in paragraph (1) shall notify the person and the Director of the Office of Personnel Management of such deter- mination. (3) A determination pursuant to this sub- section shall not be subject to judicial review. (4) The head of each agency referred to in sub- section (a) shall submit to the Select Committee on Intelligence and the Committee on Veterans’ Affairs of the Senate and the Permanent Select Committee on Intelligence and the Committee on Veterans’ Affairs of the House of Representa- tives on an annual basis a report on the number of persons whose reemployment with the agency was determined under this subsection to be im- possible or unreasonable during the year pre- ceding the report, including the reason for each such determination. (d)(1) Except as provided in this section, noth- ing in this section, section 4313, or section 4325 shall be construed to exempt any agency re- ferred to in subsection (a) from compliance with any other substantive provision of this chapter. (2) This section may not be construed— (A) as prohibiting an employee of an agency referred to in subsection (a) from seeking in- formation from the Secretary regarding as- sistance in seeking reemployment from the agency under this chapter, alternative em- ployment in the Federal Government under this chapter, or information relating to the rights and obligations of employee and Fed- eral agencies under this chapter; or (B) as prohibiting such an agency from vol- untarily cooperating with or seeking assist- ance in or of clarification from the Secretary or the Director of the Office of Personnel Man- agement of any matter arising under this chapter. (e) The Director of the Office of Personnel Management shall ensure the offer of employ- ment to a person in a position in a Federal exec- utive agency on the basis described in sub- section (b) if— (1) the person was an employee of an agency referred to in section 2302(a)(2)(C)(ii) of title 5 at the time the person entered the service from which the person seeks reemployment under this section; (2) the appropriate officer of the agency de- termines under subsection (c) that reemploy- ment of the person by the agency is impossible or unreasonable; and (3) the person submits an application to the Director for an offer of employment under this subsection. (Added Pub. L. 103–353, § 2(a), Oct. 13, 1994, 108 Stat. 3159.) Editorial Notes PRIOR PROVISIONS A prior section 4315 was renumbered section 7615 of this title. Statutory Notes and Related Subsidiaries 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, see sec- tion 8 of Pub. L. 103–353, set out as a note under section 4301 of this title. § 4316. Rights, benefits, and obligations of per- sons absent from employment for service in a uniformed service (a) A person who is reemployed under this chapter is entitled to the seniority and other rights and benefits determined by seniority that the person had on the date of the commence- ment of service in the uniformed services plus the additional seniority and rights and benefits that such person would have attained if the per- son had remained continuously employed. (b)(1) Subject to paragraphs (2) through (6), a person who is absent from a position of employ- ment by reason of service in the uniformed serv- ices shall be— (A) deemed to be on furlough or leave of ab- sence while performing such service; and (B) entitled to such other rights and benefits not determined by seniority as are generally provided by the employer of the person to em- ployees having similar seniority, status, and pay 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 per- forms such service. (2)(A) Subject to subparagraph (B), a person who— (i) is absent from a position of employment by reason of service in the uniformed services, and (ii) knowingly provides written notice of in- tent not to return to a position of employment after service in the uniformed service, is not entitled to rights and benefits under para- graph (1)(B). (B) For the purposes of subparagraph (A), the employer shall have the burden of proving that a person knowingly provided clear written no- tice of intent not to return to a position of em- ployment after service in the uniformed service and, in doing so, was aware of the specific rights and benefits to be lost under subparagraph (A). (3) A person deemed to be on furlough or leave of absence under this subsection while serving in the uniformed services shall not be entitled under this subsection to any benefits to which the person would not otherwise be entitled if the person had remained continuously employed. (4) Such person may be required to pay the employee cost, if any, of any funded benefit con- tinued pursuant to paragraph (1) to the extent other employees on furlough or leave of absence are so required. Page 1008 TITLE 38—VETERANS’ BENEFITS § 4317 (5) The entitlement of a person to coverage under a health plan is provided for under section 4317. (6) The entitlement of a person to a right or benefit under an employee pension benefit plan is provided for under section 4318. (c) A person who is reemployed by an em- ployer under this chapter shall not be dis- charged from such employment, except for cause— (1) within one year after the date of such re- employment, 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 re- employment, 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 em- ployer is interrupted by a period of service in the uniformed services shall be permitted, upon request of that person, to use during such period of service any vacation, annual, or similar leave with pay accrued by the person before the com- mencement of such service. No employer may require any such person to use vacation, annual, or similar leave during such period of service. (e)(1) An employer shall grant an employee who is a member of a reserve component an au- thorized leave of absence from a position of em- ployment to allow that employee to perform fu- neral honors duty as authorized by section 12503 of title 10 or section 115 of title 32. (2) For purposes of section 4312(e)(1) of this title, an employee who takes an authorized leave of absence under paragraph (1) is deemed to have notified the employer of the employee’s intent to return to such position of employment. (Added Pub. L. 103–353, § 2(a), Oct. 13, 1994, 108 Stat. 3160; amended Pub. L. 104–275, title III, § 311(6), Oct. 9, 1996, 110 Stat. 3335; Pub. L. 106–419, title III, § 323(b), Nov. 1, 2000, 114 Stat. 1855.) Editorial Notes PRIOR PROVISIONS A prior section 4316 was renumbered section 7616 of this title. AMENDMENTS 2000—Subsec. (e). Pub. L. 106–419 added subsec. (e). 1996—Subsec. (d). Pub. L. 104–275 inserted at end ‘‘No employer may require any such person to use vacation, annual, or similar leave during such period of service.’’ Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2000 AMENDMENT Amendment by Pub. L. 106–419 effective 180 days after Nov. 1, 2000, see section 323(c) of Pub. L. 106–419, set out as a note under section 4303 of this title. 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 with respect to reemployments ini- tiated on or after the first day after the 60-day period beginning Oct. 13, 1994, with transition rules, except that the provisions concerning insurance coverage (other than health) are effective with respect to fur- loughs or leaves of absence initiated on or after Oct. 13, 1994, and subsec. (b)(2) of this section is applicable only to the rights and benefits provided in subsec. (b)(1)(B) of this section and to persons who leave a position of employment for service in the uniformed services more than 60 days after Oct. 13, 1994, and not applicable to any other right or benefit of a person under this chap- ter, see section 8 of Pub. L. 103–353, set out as a note under section 4301 of this title. § 4317. Health plans (a)(1) In any case in which a person (or the person’s dependents) has coverage under a health plan in connection with the person’s posi- tion of employment, including a group health plan (as defined in section 607(1) of the Employee Retirement Income Security Act of 1974), and such person is absent from such position of em- ployment by reason of service in the uniformed services, or such person becomes eligible for medical and dental care under chapter 55 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 cov- erage 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 per- son fails to apply for or return to a position of employment, as determined under section 4312(e). (2) A person who elects to continue health- plan coverage under this paragraph may be re- quired to pay 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’s other employees, except that in the case of a person who performs service in the uni- formed services for less than 31 days, such per- son may not be required to pay more than the employee share, if any, for such coverage. (3) In the case of a health plan that is a multi- employer plan, as defined in section 3(37) of the Employee Retirement Income Security Act of 1974, any liability under the plan for employer contributions and benefits 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 employing the per- son before the period served by the person in the uniformed services, or (ii) if such last employer is no longer func- tional, to the plan. (b)(1) Except as provided in paragraph (2), in the case of a person whose coverage under a health plan was terminated by reason of service in the uniformed services, or by reason of the person’s having become eligible for medical and dental care under chapter 55 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