38 U.S.C. § 4312 — Reemployment rights of persons who serve in the uniformed services

(a) Subject to subsections (b), (c), and (d), and section 4304, a person whose absence from a job is required because of service in the “uniformed services^*”—a term this section does not define—is entitled to the reemployment rights, benefits, and other employment benefits provided by this chapter if all three conditions are met:

(1) The person, or an appropriate officer of the uniformed service in which the person serves, gives the employer^* advance written or verbal notice^* of the service.

(2) The total length of the absence and all earlier absences from a job with that employer because of service in the uniformed services^* does not exceed five years.

(3) Except as subsection (f) provides, the person reports to the employer or submits an application for reemployment as subsection (e) requires.

(b)(1) Subsection (a)(1)’s notice is not required if “military necessity”—a term this section does not define—prevents giving notice, or if, considering all relevant circumstances, giving notice is otherwise impossible or unreasonable.

(b)(2) The determination of military necessity is made as follows: (A) except as provided in (B) and (C), under regulations made by the Secretary^* of Defense; (B) for a person serving the Federal Emergency Management Agency under section 327 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act or as intermittent personnel under section 306(b)(1) of that Act, by the Administrator of the Federal Emergency Management Agency as described in sections 327(j)(2) and 306(d)(2) of that Act; and (C) for an intermittent disaster-response appointee of the National Disaster Medical System, by the Secretary of Health and Human Services as described in section 2812(d)(3)(B) of the Public Health Service Act.

(b)(3) A determination of military necessity under paragraph (1) cannot be reviewed by a court.

(c) Subsection (a) applies if the person’s cumulative service in the uniformed services, counted for the employer relationship for which reemployment is sought, does not exceed five years. The five-year total does not include service:

(1) required beyond five years to complete an initial period of obligated service;

(2) during which the person could not obtain orders releasing the person from service before the five years ended, when that inability was not the person’s fault;

(3) performed as required under section 10147 of title 10, under section 502(a) or 503 of title 32, or to complete additional training requirements that the Secretary concerned^* determines and certifies in writing are necessary for professional development or to complete skill training or retraining; or

(4) performed by a member of a uniformed service who is:

(A) ordered to or kept 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 of title 14;

(B) ordered to or kept on active duty, other than for training, under any law because of a war or national emergency declared by the President or Congress, as determined by the Secretary concerned;

(C) ordered to active duty, other than for training, in support of an operational mission that the Secretary concerned determines is supported by personnel ordered to active duty under section 12304 of title 10;

(D) ordered to active duty in support of a critical mission or requirement of the uniformed services, as determined by the Secretary concerned;

(E) called into Federal service as a member of the National Guard under chapter 15 or 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 the President or Secretary of Defense authorizes it to respond to a national emergency declared by the President and it is supported 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 changed so much that reemployment is impossible or unreasonable;

(B) for a person entitled to reemployment under section 4313(a)(3), (a)(4), or (b)(2)(B), reemployment would impose an undue hardship on the employer; or

(C) the job the person left for service was brief and nonrecurring, and there was no reasonable expectation that it would continue indefinitely or for a significant period.

(d)(2) In a proceeding about whether any of those conditions applies, the employer has the burden of proving the applicable fact: that changed circumstances made reemployment impossible or unreasonable; that an accommodation, training, or effort described in section 4313(a)(3), (a)(4), or (b)(2)(B) would impose an undue hardship; or that the job was brief and nonrecurring and was not reasonably expected to continue indefinitely or for a significant period.

(e)(1) After completing service, a person covered by subsection (a) must notify the employer of the person’s intent to return to a job as follows:

(A) If service lasted less than 31 days, the person must report to the employer no later than the beginning of the first full regularly scheduled work period on the first full calendar day after service ends and after eight hours have passed following the time reasonably needed to travel safely from the place of service to the person’s home. If reporting then is impossible or unreasonable through no fault of the person, the person must report as soon as possible after those eight hours pass.

(B) If the absence was for an examination to determine whether the person was fit to perform service in the uniformed services, the person must report in the same manner and within the same time as under subparagraph (A).

(C) If service lasted more than 30 days but less than 181 days, the person must apply for reemployment no later than 14 days after service ends. If applying within that time is impossible or unreasonable through no fault of the person, the person must apply on the first full calendar day when applying becomes possible.

(D) If service lasted more than 180 days, the person must apply for reemployment no later than 90 days after service ends.

(e)(2) A person hospitalized for, or recovering from, an illness or injury incurred in or made worse during service must, after the recovery period needed, report to the employer if covered by paragraph (1)(A) or (B), or apply for reemployment if covered by paragraph (1)(C) or (D). Except as subparagraph (B) provides, the recovery period cannot exceed two years. The two-year period must be extended by the minimum time needed to handle circumstances beyond the person’s control that make reporting within the stated period impossible or unreasonable.

(e)(3) A person who does not report or apply within the applicable period does not automatically lose the rights and benefits^* in subsection (a). But the person remains subject to the employer’s rules, policies, and general practices about explaining and disciplining absences from scheduled work.

(f)(1) A person who applies under subsection (e)(1)(C) or (D), or under subsection (e)(2), must, if the employer asks, provide documents establishing that: (A) the application was timely; (B) the person did not exceed the service limits in subsection (a)(2), except as subsection (c) allows; and (C) the person’s entitlement to this chapter’s benefits was not ended under section 4304.

(f)(2) Documents about any matter in paragraph (1) that meet the Secretary’s regulations satisfy the documentation requirement.

(f)(3) Except as subparagraph (B) provides, an employer may not deny reemployment because the person cannot provide documents meeting those regulations when the documents do not exist or are not readily available when the employer asks. If documents later become available and show that the person did not meet one or more requirements in paragraph (1)(A), (B), or (C), the employer may end the person’s employment and the person’s rights and benefits under this chapter. An employer that reemploys a person absent for more than 90 days may require the person to provide the documents before treating the person as having no break in service for pension^* purposes under section 4318(a)(2)(A).

(f)(4) An employer may not delay or try to defeat its reemployment obligation by demanding documents that do not exist or are not readily available at that time.

(g) Reemployment rights under this section do not give a person retention, preference, or displacement rights over someone with a superior claim under title 5 provisions concerning veterans and other preference eligibles.

(h) In deciding whether a person is entitled to protection under this chapter, the timing, frequency, or duration of the person’s training or service, or the nature of that training or service, including voluntary service, cannot be used to deny the chapter’s protection if the service does not exceed subsection (c)’s limits and the notice requirements in subsection (a)(1) and the notification requirements in subsection (e) are met.