
From the U.S. Code Online via GPO Access
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[Laws in effect as of January 23, 2000]
[Document not affected by Public Laws enacted between
  January 23, 2000 and December 4, 2001]
[CITE: 38USC4312]

 
                      TITLE 38--VETERANS' BENEFITS
 
               PART III--READJUSTMENT AND RELATED BENEFITS
 
    CHAPTER 43--EMPLOYMENT AND REEMPLOYMENT RIGHTS OF MEMBERS OF THE 
                           UNIFORMED SERVICES
 
   SUBCHAPTER II--EMPLOYMENT AND REEMPLOYMENT RIGHTS AND LIMITATIONS; 
                              PROHIBITIONS
 
Sec. 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 reason of service in the uniformed services shall be entitled to the 
reemployment rights and benefits and other employment benefits of this 
chapter 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 employment with that employer by reason 
    of service in the uniformed services does not exceed five years; and
        (3) except as provided in subsection (f), the person reports to, 
    or submits an application for reemployment to, such employer in 
    accordance with the provisions of subsection (e).

    (b) 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 otherwise 
impossible or unreasonable. 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.
    (c) Subsection (a) 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 as required pursuant to section 10147 of title 10, 
    under section 502(a) or 503 of title 32, or to fulfill additional 
    training requirements determined and certified in writing by the 
    Secretary concerned, to be necessary 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, or 12305 of title 10 or under 
        section 331, 332, 359, 360, 367, or 712 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 emergency declared by the President or the Congress, as 
        determined by the Secretary concerned;
            (C) ordered to active duty (other than for training) in 
        support, as determined by the Secretary concerned, of an 
        operational mission 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 
        uniformed services; or
            (E) called into Federal service as a member of the National 
        Guard under chapter 15 of title 10 or under section 12406 of 
        title 10.

    (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 impossible or unreasonable;
        (B) in the case of a person entitled to reemployment under 
    subsection (a)(3), (a)(4), or (b)(2)(B) of section 4313, such 
    employment would impose an undue hardship on the employer; 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 paragraph (1) is impossible 
    or unreasonable because of a change in an employer's circumstances,
        (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 expectation of continuing 
indefinitely or for a significant period.
    (e)(1) Subject to paragraph (2), a person referred to in subsection 
(a) shall, upon the completion 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 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; 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 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).
        (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 submitting an application for reemployment with the employer not 
    later than 14 days after the completion of the period of service or 
    if submitting such application within such period is impossible 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 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 (A) or (B) of paragraph (1)) or submit an application for 
reemployment with such employer (in the case of a person described in 
subparagraph (C) or (D) of such paragraph). 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 specified in subparagraph (A) 
impossible or unreasonable.
    (3) A person who fails to report or apply for employment or 
reemployment 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) 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.
    (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 establish that--
        (A) the person's application is timely;
        (B) the person has not exceeded the service limitations set 
    forth in subsection (a)(2) (except 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 prescribed by the Secretary shall satisfy the 
documentation 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 reemployment 
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 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 
(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 benefits afforded the person under this chapter.
    (B) An employer who reemploys a person absent from a position of 
employment for more than 90 days may require that the person provide the 
employer with the documentation referred to in subparagraph (A) before 
beginning to treat the person as not having incurred a break in service 
for pension purposes under section 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, relating to veterans and other preference eligibles.
    (h) In any determination of a person's entitlement to protection 
under this chapter, 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 chapter if the service does not 
exceed the limitations set forth in subsection (c) and the notice 
requirements established in subsection (a)(1) and the notification 
requirements established in subsection (e) are met.

(Added Pub. L. 103-353, Sec. 2(a), Oct. 13, 1994, 108 Stat. 3153; 
amended Pub. L. 104-275, title III, Sec. 311(4), Oct. 9, 1996, 110 Stat. 
3334.)


                            Prior Provisions

    A prior section 4312 was renumbered section 7612 of this title.


                               Amendments

    1996--Subsec. (a). Pub. L. 104-275, Sec. 311(4)(A), substituted 
``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, Sec. 311(4)(B)(i), substituted 
``section 10147'' for ``section 270''.
    Subsec. (c)(4)(A). Pub. L. 104-275, Sec. 311(4)(B)(ii)(I), 
substituted ``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, Sec. 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 provision of law during a war or during a national emergency 
declared by the President or the Congress;''.
    Subsec. (c)(4)(C). Pub. L. 104-275, Sec. 311(4)(B)(ii)(III), 
substituted ``section 12304'' for ``section 673b''.
    Subsec. (c)(4)(E). Pub. L. 104-275, Sec. 311(4)(B)(ii)(IV), 
substituted ``section 12406'' for ``section 3500 or 8500''.
    Subsec. (d)(2)(C). Pub. L. 104-275, Sec. 311(4)(C), substituted ``is 
for a brief, nonrecurrent period and there is no reasonable 
expectation'' for ``is brief or for a nonrecurrent period and without a 
reasonable expectation''.


                    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 initiated 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.

                  Section Referred to in Other Sections

    This section is referred to in sections 4311, 4313, 4314, 4317, 4319 
of this title; title 2 section 1316; title 3 section 416.
