38 U.S.C. § 4313 — Reemployment positions

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 Page 1006 TITLE 38—VETERANS’ BENEFITS § 4314 has reported for such reemployment, the person who left the position first shall have the prior right to reemployment in that position. (2) Any person entitled to reemployment under section 4312 who is not reemployed in a position of employment by reason of paragraph (1) shall be entitled to be reemployed as follows: (A) Except as provided in subparagraph (B), in any other position of employment referred to in subsection (a)(1) or (a)(2), as the case may be (in the order of priority set out in the applicable subsection), that provides a similar status and pay to a position of employment re- ferred to in paragraph (1) of this subsection, consistent with the circumstances of such per- son’s case, with full seniority. (B) In the case of a person who has a dis- ability incurred in, or aggravated during, a pe- riod of service in the uniformed services that requires reasonable efforts by the employer for the person to be able to perform the duties of the position of employment, in any other posi- tion referred to in subsection (a)(3) (in the order of priority set out in that subsection) that provides a similar status and pay to a po- sition referred to in paragraph (1) of this sub- section, consistent with circumstances of such person’s case, with full seniority. (Added Pub. L. 103–353, § 2(a), Oct. 13, 1994, 108 Stat. 3157; amended Pub. L. 104–275, title III, § 311(5), Oct. 9, 1996, 110 Stat. 3335.) Editorial Notes PRIOR PROVISIONS A prior section 4313 was renumbered section 7613 of this title. AMENDMENTS 1996—Subsec. (a)(4). Pub. L. 104–275 substituted ‘‘uni- formed services’’ for ‘‘uniform services’’ in cl. (A)(ii) and ‘‘which is the nearest approximation to a position referred to first in clause (A)(i) and then in clause (A)(ii) which’’ for ‘‘of lesser status and pay which’’ in cl. (B). 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 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 subsec. (a)(3) of this section applicable to re- employments initiated on or after Aug. 1, 1990, see sec- tion 8 of Pub. L. 103–353, set out as a note under section 4301 of this title. § 4314. Reemployment by the Federal Govern- ment (a) Except as provided in subsections (b), (c), and (d), if a person is entitled to reemployment by the Federal Government under section 4312, such person shall be reemployed in a position of employment as described in section 4313. (b)(1) If the Director of the Office of Personnel Management makes a determination described in paragraph (2) with respect to a person who was employed by a Federal executive agency at the time the person entered the service from which the person seeks reemployment under this section, the Director shall— (A) identify a position of like seniority, sta- tus, and pay at another Federal executive agency that satisfies the requirements of sec- tion 4313 and for which the person is qualified; and (B) ensure that the person is offered such po- sition. (2) The Director shall carry out the duties re- ferred to in subparagraphs (A) and (B) of para- graph (1) if the Director determines that— (A) the Federal executive agency that em- ployed the person referred to in such para- graph no longer exists and the functions of such agency have not been transferred to an- other Federal executive agency; or (B) it is impossible or unreasonable for the agency to reemploy the person. (c) If the employer of a person described in subsection (a) was, at the time such person en- tered the service from which such person seeks reemployment under this section, a part of the judicial branch or the legislative branch of the Federal Government, and such employer deter- mines that it is impossible or unreasonable for such employer to reemploy such person, such person shall, upon application to the Director of the Office of Personnel Management, be ensured an offer of employment in an alternative posi- tion in a Federal executive agency on the basis described in subsection (b). (d) If the adjutant general of a State deter- mines that it is impossible or unreasonable to reemploy a person who was a National Guard technician employed under section 709 of title 32, such person shall, upon application to the Di- rector of the Office of Personnel Management, be ensured an offer of employment in an alter- native position in a Federal executive agency on the basis described in subsection (b). (Added Pub. L. 103–353, § 2(a), Oct. 13, 1994, 108 Stat. 3158.) Editorial Notes PRIOR PROVISIONS A prior section 4314 was renumbered section 7614 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. § 4315. Reemployment by certain Federal agen- cies (a) The head of each agency referred to in sec- tion 2302(a)(2)(C)(ii) of title 5 shall prescribe pro- cedures for ensuring that the rights under this chapter apply to the employees of such agency. (b) In prescribing procedures under subsection (a), the head of an agency referred to in that subsection shall ensure, to the maximum extent