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Some Disaster Relief Workers Are Protected Employees under USERRA

Hurricanes. Fires. Floods. Shootings. The evening news seems consistently laden with catastrophe.

In times like these, a federal agency called the National Disaster Medical System (NDMS) often springs into action. The NDMS, created in 2002 under the Public Health Security and Bioterrorism Preparedness and Response Act of 2002, is a corps of volunteer reservists who perform a variety of disaster-relief services. While NDMS members are often medical clinicians providing health services (including doctors, nurses, paramedics, physician assistants, and pharmacists), teams may also include other non-medical professionals such as logistical specialists, information technologists, fatality management, veterinary professionals, and communication and administrative specialists.

Relevant to employers, NDMS reservists are protected by the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA).

Under USERRA, employers must provide certain job-related protections to employees who perform “service in the uniformed services” and who meet the requirements of USERRA. USERRA protections vary based on the length of the USERRA-covered service but generally include reemployment rights, the right to be free from discrimination and retaliation, and health insurance protection. For example, if an NDMS reservist voluntarily leaves his or her employment to undertake service in the NDMS, employers generally must:

  • Reemploy the NDMS reservist in the job that he or she would have attained if he or she had not been absent, with the same seniority, status and pay (we earlier wrote about this here), as well as other rights and benefits determined by seniority;
  • Continue health coverage for service of less than 31 days, followed by an option to elect to continue health coverage for up to 24 months; and
  • Credit continuous service for purposes of pension plan participation, vesting, and accrual of benefits.

When we think of USERRA, most of us think of the Armed Forces (Army, Navy, Air Force and Marines) and similar individuals in uniform headed off to military missions. However, when the NDMS was created, the law made clear that service with the NDMS would be treated as “service in the uniformed services” entitled to USERRA protection. NDMS reservists are, in fact, federal employees who are activated on an episodic intermittent basis to respond to national disasters.

Employers should note, however, that an employee who volunteers to provide aid or assistance in the aftermath of a disaster is not, by nature of the volunteer service alone, automatically entitled to USERRA protection. The NDMS is a fairly small federal agency with a very specific mission, and NDMS reservists must complete certain requirements (such as maintaining licensures and certifications, attending training and other events, and remaining medically and physically fit) to qualify for such protection as federal employees.

If such qualifications are met, employers should ensure that these reservists are granted appropriate leave and, upon their return, are reinstated to the same or similar position. This means that nurses, for example, are not only entitled to reemployment as a nurse but are entitled to the same or comparable number of shifts. Notably, however, NDMS missions are typically short in duration and are unlikely to have the same impact on an employer as active duty military deployments.

If an individual provides notice to serve under official orders from NDMS, employers should consult with legal counsel to ensure compliance under USERRA and other federal laws, such as the Federal Tort Claims Act and the Federal Employees’ Compensation Act.

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Patricia A. Moran

Special Counsel

Patricia A. Moran is an experienced employee benefits attorney at Mintz. She advises clients on a variety of employee benefit plan matters. Patricia has also worked with the US Department of Labor Employee Benefits Security Administration, where she investigated employers on ERISA compliance.
Natalie C. Groot is a Mintz attorney who litigates employment disputes on a wide variety of employment and labor matters. Natalie's litigation practice includes non-competition and non-solicitation agreements; discrimination, sexual harassment, and retaliation claims; and wage and hour compliance matters.