§410. Right of reinstatement to former employment
A. Any person who is absent from a position of employment by reason of
service in the uniformed services shall be entitled to the reemployment rights and
benefits and other employment benefits of this Part, within ten days , if all of the
following conditions are met:
(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 employment with that employer by reason of service in the uniformed
services does not exceed five years.
(3)Except as provided in Subsection F of this Section, the person notifies
the employer in writin
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§410. Right of reinstatement to former employment
A. Any person who is absent from a position of employment by reason of
service in the uniformed services shall be entitled to the reemployment rights and
benefits and other employment benefits of this Part, within ten days , if all of the
following conditions are met:
(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 employment with that employer by reason of service in the uniformed
services does not exceed five years.
(3) Except as provided in Subsection F of this Section, the person notifies
the employer in writing of the intent to return to a position of employment in
accordance with the provisions of Subsection E of this Section.
B. No notice is required under Subsection A of this Section if the giving of
such notice is precluded by military necessity or, under all of the relevant
circumstances, the giving of such notice is otherwise impossible or unreasonable. A
determination of military necessity for the purposes of this Subsection shall be made
pursuant to regulations prescribed by the uniformed services and shall not be subject
to judicial review.
C. Subsection A of this Section shall apply to a person who is absent from
a position of employment by reason of service in the uniformed services if such
person's cumulative period of service in the uniformed services, with respect to the
employer relationship for which a person seeks reemployment, 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 period 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 to fulfill additional training requirements determined to be
necessary for professional development, or for completion of skill training or
retraining.
(4) Performed by a member of a uniformed service who has been:
(a) Ordered to or retained on active duty in time of war or national or state
emergency.
(b) Ordered to or retained on active duty (other than for training) under any
provision of law during a war or during a national emergency declared by the
president or the congress or emergency declared by the governor or the legislature.
(c) Ordered to active duty in support of a critical mission or requirement of
the uniformed services.
D.(1) An employer is not required to reemploy a person under this Part if:
(a) The employer's circumstances have so changed as to make such
reemployment impossible or unreasonable.
(b) Such employment would impose an undue hardship on the employer.
(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) 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 expectation of continuing indefinitely or for a
significant period.
E.(1) Subject to Paragraph (2) of this Subsection, a person referred to in
Subsection A of this Section shall, upon the completion of a period of service in the
uniformed services, notify the employer referred to in Subsection A of this Section
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 thirty-one days, by reporting to the employer in the following manner:
(i) Not later than the beginning of the first full regularly scheduled work
period on the first full calendar day following the completion of the period of service
and the expiration 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.
(ii) As soon as possible after the expiration of the eight-hour period referred
to in Item (i) of this Subparagraph, if reporting within that period 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 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 Subparagraph (a) of this Paragraph.
(c) In the case of a person whose period of service in the uniformed services
was for more than thirty days but less than one hundred eighty-one days, by notifying
the employer in writing of the intent to return to a position of employment with the
employer not later than fourteen days after the completion of the period of service or
if submitting such written notice within such period is impossible or unreasonable
through no fault of the person, the next first full calendar day when submission of
such written notice becomes possible.
(d) In the case of a person whose period of service in the uniformed services
was for more than one hundred eighty days, by notifying the employer in writing of
the intent to return to a position of employment with the employer not later than
ninety days after the completion of the period of service.
(2)(a) A person who is hospitalized for, or convalescing 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 recover from
such illness or injury, report to the person's employer (in the case of a person
described in Subparagraph (1)(a) or (b) of this Subsection) or submit written notice
to such employer (in the case of a person described in Subparagraph (1)(c) or (d) of
this Subsection). Except as provided in Subparagraph (b) of this Paragraph, 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 specified in Subparagraph (a) of this Paragraph
impossible or unreasonable.
(3) A person who fails to submit written notice of the intent to return to a
position of employment within the appropriate period specified in this Subsection
shall not automatically forfeit such person's entitlement to the rights and benefits
referred to in Subsection A of this Section but shall be subject to the conduct rules,
established policy, and general practices of the employer pertaining to explanations
and discipline with respect to absence from scheduled work.
(4) Nothing in this Subsection shall restrict an employer's right to condition
reemployment on its policies and procedures applicable to employees returning from
leave, provided such policies and procedures are not in conflict with this and the
other provisions of the Military Service Relief Act.
F.(1) A person who submits written notice in accordance with Subparagraph
(E)(1)(c) or (d) of this Section or Paragraph (E)(2) of this Section shall provide to the
person's employer (upon the request of such employer) documentation to establish
the following:
(a) The person's application is timely.
(b) The person has not exceeded the service limitations set forth in Paragraph
(A)(2) of this Section (except as permitted under Subsection C of this Section).
(c) The person's entitlement to the benefits under this Section has not been
terminated by reason of dishonorable discharge from service in the uniformed
services.
(2) Documentation of any matter referred to in Paragraph (1) of this
Subsection that satisfies regulations prescribed by the adjutant general shall satisfy
the documentation requirements in Paragraph (1) of this Subsection.
(3)(a) Except as provided in Subparagraph (b) of this Paragraph, the failure
of a person to provide documentation that satisfies regulations prescribed pursuant
to Paragraph (2) of this Subsection shall not be a basis for denying reemployment in
accordance with the provisions of this Part if the failure occurs because such
documentation does not exist or is not readily available at the time of the request of
the employer. If, after such reemployment, documentation becomes available that
establishes that such person does not meet one or more of the requirements referred
to in Subparagraphs (1)(a), (b), and (c) of this Subsection, the employer of such
person may terminate the employment of the person and the provision of any rights
or benefits afforded the person under this Part.
(b) An employer who reemploys a person absent from a position of
employment for more than ninety days may require that the person provide the
employer with the documentation referred to in Subparagraph (a) of this Paragraph
before beginning to treat the person as not having incurred a break in service for
pension purposes.
(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 Part 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, relating to
veterans and other preference eligibles.
H. In any determination of a person's entitlement to protection under this
Part, the timing, frequency, and duration of the person's training or service, or the
nature of such training or service (including voluntary service) in the uniformed
services, shall not be a basis for denying protection of this Part if the service does not
exceed the limitations set forth in Subsection C of this Section and the notice
requirements established in Paragraph (A)(1) of this Section and the notification
requirements established in Subsection E of this Section are met.
I. Any employee who submits written notice of the intent to return to a
position of employment in accordance with the provisions of this law, shall be
entitled to complete any training program that was applicable to his former position
of employment during his period of service in the uniformed services.
J. Any employee who is restored to or employed in a position in accordance
with the provisions of this Section shall not be discharged from such position without
cause within one year after such restoration or reemployment.
K. Notwithstanding any provision of law to the contrary, an employee shall
be reinstated to his former position as a teacher immediately upon application and
shall be entitled to receive that compensation which he would have received if he
would have been employed on a nine-month basis and had prorated his salary over
twelve months. The employee shall be reinstated prior to the end of the twelve-month period.
L. A person who is reemployed under this Part is entitled to the seniority and
other rights and benefits determined by seniority that the person had on the date of
the commencement of service in the uniformed services plus the additional seniority
and rights and benefits that such person would have attained if the person had
remained continuously employed.