United States: New Law Extends Military Leave Protections to Intermittent Disaster-Response Personnel

On June 12, 2002 President Bush signed into law the Public Health Security and Bioterrorism Preparedness and Response Act (P.L. 107-188). Enacted in response to the events of September 11, 2001, this law strengthens the capability of the United States to deal with public health emergencies. The Act covers a number of national security concerns, but of particular interest to employers is the provision granting "intermittent disaster-response personnel" the same leave rights and job protections that uniformed military personnel enjoy under the Uniformed Services Employment and Reemployment Rights Act (USERRA).

USERRA applies to all employers, and it broadly protects the employment rights of individuals who take a leave of absence to serve in any branch of the U.S. uniformed services. Under USERRA, an employee must give advance notice to an employer before taking a leave of absence to perform military duty, unless giving notice is impossible, unreasonable, or precluded by military necessity. If the individual meets these notice requirements, USERRA grants that individual a number of employment protections, including a right to reinstatement upon completion of military service and protection against discharge without cause for one year after being reinstated. For an overview of USERRA, please refer to the September 2001 Legal Alert titled "Military Leaves of Absence: Employer Obligations and Reemployment Rights of Affected Workers."

The new law signed on June 12, 2002 extends USERRA’s employment protections to intermittent disaster-response personnel. These individuals are medical personnel such as clinicians, doctors, and nurses who volunteer to participate in a program called the National Disaster Medical System. This program is a coordinated effort between the private sector and four federal agencies to help mobilize trained medical personnel during a public health emergency. Under the new law, intermittent disaster-response personnel who must be absent from their regular jobs to participate in an authorized training program under the National Disaster Medical System or to perform their volunteer services when the Secretary of Health and Human Resources activates the National Disaster Medical System are entitled to the same leave rights, reinstatement rights, and other protections under USERRA as uniformed military personnel. Like individuals who take a leave of absence from work to perform military service, intermittent disaster-response personnel must give advance notice to their employer in order to benefit from the protections of the Act, unless giving notice is impossible, unreasonable, or precluded by military necessity.

The extension of USERRA to intermittent disaster-response personnel grants significant new employment rights to certain employees. Employers that employ medical personnel may wish to revise their leave-of-absence policies to include leaves for intermittent disaster-response personnel. For further information about this issue or for assistance in modifying your leave-of-absence policies, please contact any attorney in Kilpatrick Stockton’s Labor and Employment Practice Group. In addition, a copy of the September 2001 Legal Alert dealing with USERRA can be found in the articles section on our website at www.kilpatrickstockton.com.