NIH Employee Benefits - Fact Sheet Employment Rights & Benefits of Federal Civilian Employees Who Perform Active Military Duty

If you are a Federal civilian employee and a member of the Uniformed Services and you are called to active duty (or volunteer for active duty) you are entitled to the following rights and benefits:

EMPLOYEE ASSISTANCE PROGRAMS
The Employee Assistance Programs (EAP) can be very helpful to you and your family in coping with the stress and disruption associated with a call to active military duty. EAP provides short-term counseling and referral services to help with financial, emotional, and dependent care problems. These services are available if you have been called to active military duty (or volunteer for such duty) and to your family. The NIH EAP office is located in building 31, Room B2B57. They can be reached by telephone at 301-496-3164, and their web site at www.nih.gov/od/ors/ds/eap.
PAY
If you are called to active duty you will receive compensation from the Armed Forces in accordance with the terms and conditions of their military enlistment or commission. As a result, you will not receive any compensation from NIH unless you elect to use military leave or annual leave as described in paragraphs 3 and 4, below. If eligible, you will continue to receive payment of annual premium pay for administratively uncontrollable overtime (AUO) work or regularly scheduled standby duty (RSSD) on days of military leave or annual leave.
MILITARY LEAVE
When you perform active military duty you may request paid military leave, as specified in 5 U.S.C. 6323(a) (http://www4.law.cornell.edu/uscode/5/6323.html). Under the law, you accrue 15 days (120 hours) of military leave each fiscal year. In addition, you may carry over up to 15 days (120 hours) of unused military leave from one fiscal year to the next. When the 15 days of military leave that are carried over are combined with the 15 days of military leave accrued at the beginning of the new fiscal year, this produces a maximum military leave benefit of 30 days in a fiscal year. However, since you cannot carry over more than 15 calendar days to the next fiscal year, any unused military leave in excess of 15 days will be forfeited at the beginning of the next fiscal year. If you are a part-time career employee, you accrue military leave on a prorated basis.

If you elect to use military leave you will receive full compensation from NIH for each hour charged to military leave, in addition to your military pay for the same period. Additional information on charging military leave can be found in OPM’s memorandum of January 25, 2001, at OPM’s website at http://www.opm.gov/oca/compmemo/2001/2001-02.htm.

If you perform active military duty you may be granted an additional 22 days of military leave under 5 U.S.C. 6323(b) (http://www4.law.cornell.edu/uscode/5/6323.html) if your leave is granted for the purpose of providing military aid to assist domestic civilian authorities to enforce the law or protect life and property. An example of this could include activation to provide security for airport operations.

If you want to request this additional leave, you must provide documentation from the military certifying that the purpose of your activation is to assist enforcement of the law or protect life and property. This will be reviewed on a case-by-case basis. All such requests should be submitted to the Division of Employee Services and Benefits, Employee Benefits Branch, 31 Center Drive MSC 2029, Room B2B47, Bethesda, MD 20892-2029.
ANNUAL LEAVE
If you enter into active military duty you may choose to (1) use your annual leave in lieu of LWOP; (2) have your annual leave remain to your credit until you return to your civilian position, OR (3) receive a lump-sum payment for all accrued and accumulated annual leave. In addition, requests for advanced annual leave may be granted at NIH’s discretion.

If you elect option 1 above, you will receive compensation from your civilian position for all hours charged to annual leave in addition to your military pay for the same period. If you request to have your annual leave remain to your credit, upon return to civilian duty the leave will be available for your use. If you elect option 3 above, your payment will be subject to applicable taxes (i.e. Federal, state, FICA, and Medicare). However, NIH must make a lump-sum payment for any restored annual leave under 5 U.S.C. 6304(d) (http://www4.law.cornell.edu/uscode/5/6304.html). There is no requirement to separate from a civilian position in order to receive a lump-sum leave payment under 5 U.S.C. 5552 (http://www4.law.cornell.edu/uscode/5/5552.html).

Return to Active Federal Service. If you return to active Federal civilian service prior to the end of the period covered by a lump-sum payment, you must refund an amount equal to the pay that covers the period between the date of reemployment and the expiration of the lump-sum leave period. Since restored annual leave must be paid in a lump sum, this leave cannot be re-credited. Further guidance on the repayment of a lump-sum payment for annual leave can be found at http://www.opm.gov/oca/leave/html/lumpsum.pdf.
LEAVE WITHOUT PAY (LWOP)
The Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) generally requires NIH to place you on LWOP upon entering active duty, unless you choose to be placed on military leave or annual leave, as appropriate, or you request to be separated. While on LWOP, you will not earn annual or sick leave in a pay period in which you have accumulated 80 hours of LWOP. In addition, if you are part-time, while on LWOP you will earn less annual and sick leave, since you earn leave based on the number of hours in a pay status.
HEALTH BENEFITS
If you are covered under the Federal Employee’s Health Benefits (FEHB) Program, you may (a) continue this coverage for up to 18 months; OR (b) terminate the coverage.
1. Continuation of Coverage. If you want to continue your FEHB coverage, you may elect to do so for up to 18 months of LWOP. NIH will pay your health premiums for you during this period of non-pay status. You are not required to reimburse NIH for this benefit.
  
  If you elect to continue coverage while in non-pay status or upon separation, FEHB coverage will terminate at the end of 18 months. You receive a free 31-day extension of coverage during which you can convert to a nongroup policy. You are not eligible for Temporary Continuation of Coverage (TCC). (http://www.opm.gov/insure/health/tcc/)
2. Termination of Coverage. If you do not wish to continue FEHB coverage you may elect to terminate the coverage. If you are participating in premium conversion (pre-tax premium payments - http://www.opm.gov/insure/health/pretaxfehb/index.asp) and want to terminate FEHB, you may do so only within 60 days of beginning of your leave of absence [as this is a qualifying life event (QLE - http://www.opm.gov/insure/health/pretaxfehb/qanda/17.asp)], or during an annual open season. If you elect to terminate the enrollment, the termination will be effective at the end of the last pay period in which premiums can be withheld. Coverage will continue at no cost to you for an additional 31 days. During the 31 days, you may convert to an individual contract with the insurance carrier. The termination is not considered a break in the continuous coverage necessary for continuing FEHB coverage into retirement. However, the period during which the termination is in effect does not count toward satisfying the required 5 years of continuous coverage.
  
  Return to Active Federal Service. If you elected to terminate your FEHB enrollment during your period of active military service it will be automatically reinstated when you are restored to a civilian position under the provisions of 5 CFR Part 353. However, if you waive your rights to immediate reinstatement of FEHB to take advantage of transitional TRICARE benefits, NIH may delay reinstatement until the transitional TRICARE ends. (Section 736 of the 2002 Defense Authorization Act provides for transitional TRICARE for up to 120 days.) You may make any changes to your enrollment or premium conversion participation within 60 days of reinstatement of the enrollment.
  
  If you return to your civilian position, but are not restored under the provisions of 5 CFR Part 353, you may enroll within 60 days of returning to civilian service provided your position is not excluded from FEHB coverage.
  
  Additional information on FEHB coverage and military service may be found at www.opm.gov/insure/health/qa/reservists.asp
LIFE INSURANCE
If you are put in a non-pay status while on military duty you may keep your Federal Employees’ Group Life Insurance (FEGLI) coverage for up to 12 months. This coverage is free. At the end of 12 months in non-pay status, the coverage terminates. You will receive a free 31-day extension of coverage and have the right to convert to a non-group policy.

If you separate from service while on military duty you are considered to be in a non-pay status for FEGLI purposes. You may also keep your FEGLI coverage for up to 12 months, or until 90 days after your military service ends, whichever date comes first. This coverage is free. At the end of 12 months (or 90 days after military service ends), the coverage terminates. You also receive the 31-day extension of coverage and the right to convert.

Being called up to active duty status or being sent to a combat zone does NOT cancel FEGLI coverage, nor does it automatically make you ineligible for accidental death and dismemberment (AD&D) coverage. All FEGLI coverage remains in effect for the period of time described above.

If you are covered under FEGLI; called up to active military duty; and killed; “regular” death benefits are payable to your beneficiaries. Accidental death benefits are also payable under Basic insurance (and Option A, if you had that coverage) unless you were in actual combat (or unless nuclear weapons are being used) at the time of the injury that caused your death. Accidental death benefits are in addition to regular death benefits. Even if accidental death benefits are not payable, regular death benefits ARE payable.

Return to Active Federal Service. When you return to active Federal civilian service, you get back whatever type(s) of life insurance you had before going into non-pay status (as long as the position is not excluded from coverage). You do not get an opportunity to elect more coverage unless you have been separated from service for at least 180 days.
RETIREMENT
If you are placed in an LWOP status while performing active military duty, you continue to be covered by the retirement law; i.e., the Civil Service Retirement System (CSRS) or the Federal Employees Retirement System (FERS). Death benefits will be paid as if you were still in the civilian position. If you become disabled for your civilian position during the LWOP and you have the minimum amount of civilian service necessary for title to disability benefits (5 years for CSRS, 18 months for FERS), you are entitled to disability benefits under the retirement law. Upon eventual retirement from civilian service, the period of military service is creditable under either CSRS or FERS, subject to the rules for crediting military service.

Rules for crediting military service. In order to receive credit for active military service, you are required to return to a Federal civilian position and make a deposit to the retirement fund to cover the period of active duty. Under CSRS, the deposit amount is the lesser of (1) 7% of the civilian pay that would have been paid had you not left your civilian position; OR (2) 7% of the basic military pay. Under FERS, the deposit amount is the lesser of (1) 0.8% of the civilian pay; OR (2) 3% of the basic military pay.

If you elected to separate when you entered active military duty, you generally will receive retirement credit for the period of separation if you exercise restoration rights to your civilian position. If you do not exercise your restoration right, but later re-enter Federal civilian service, the military service may be credited under the retirement system, subject to the rules governing credit for military service.

Thrift Savings Plan. For purposes of the Thrift Savings Plan (TSP), no contributions can be made, either by the agency or you, for any time in an LWOP status or for a period of separation. You should refer to the TSP Fact Sheet “Effect of Non-pay Status on TSP Participation” (http://www.tsp.gov/forms/oc95-4.pdf).

If you are subsequently reemployed in, or restored to, a position covered by FERS or CSRS pursuant to 38 U.S.C. Chapter 43, you may make up missed contributions. FERS employees are entitled to receive retroactive Agency Automatic (1 percent) Contributions and, if they make up their own contributions, retroactive Agency Matching Contributions. Lost earnings on any makeup Agency contributions will also be paid. If you contribute to TSP through a uniformed service account, the amount of employee contributions that you may make up must be reduced by that amount.

Also, if covered under FERS and you separate, resulting in your Agency Automatic 1% Contributions and associated earnings forfeited because you did not meet the TSP vesting requirement, you are entitled to have these funds restored to your accounts after you are reemployed. In addition, if you separate and your accounts are disbursed as automatic cashouts, you may return to the TSP an amount equal to the full amount of the payment after you are reemployed. For additional information see the TSP Fact Sheet “Benefits that Apply to Members of the Military Who Return to Federal Civilian Service” at http://www.tsp.gov/forms/oc95-5.pdf.
RETURN TO CIVILIAN DUTY
When you enter active military duty (voluntarily or involuntarily) from any position, including a temporary position, you have full job protection, provided you apply for reemployment within the following time limits:
1. If you served less than 31 days you must report back to work at the beginning of the next scheduled workday following your release from service and the expiration of 8 hours after a time for safe transportation back to your residence.
2. If you served more than 30 days, but less than 181 days, you must apply for re-employment within 14 days of release by the military.
3. If you served more than 180 days you have 90 days to apply for re-employment.
  
  If you served less than 91 days you must be restored to the position you would have attained had your employment not been interrupted. If you served more than 90 days you have essentially the same rights, except that the NIH has the option of placing you in a position for which you qualify, of like seniority, status, and pay.
  
  Upon return or restoration, you generally are entitled to be treated as though you had never left for purposes of rights and benefits based upon length of service. This means that you must be considered for career ladder promotions, and the time spent in the military will be credited for seniority, successive within-grade increases, probation, career tenure, annual leave accrual rate, and severance pay. If you were on a temporary appointment you will continue to serve out the remaining time, if any, left on your appointment. The military activation period does not extend the civilian appointment.
  
  If you are performing active military duty you are protected from reduction in force (RIF) and may not be discharged from employment for a period of one year following separation, except for poor performance, conduct, or suitability. If your are called to active duty under 10 U.S.C. 12304 for more than 30 days, but less than 181 days, or ordered to an initial period of active duty for training of not less than 12 consecutive weeks, you are protected from RIF for six months.
APPEAL RIGHTS
Because you are entitled to restoration in connection with military duty you may appeal an agency's failure to properly carry out the law directly to the Merit Systems Protection Board (MSPB), or you may first submit a complaint to the Department of Labor (DOL), which will attempt to resolve it. If resolution is not possible, the DOL may present the case to the Office of the Special Counsel, which may represent you in an appeal to the MSPB. Appeals to the Board must be submitted within 30 calendar days after the effective date of the action being appealed.
DOCUMENTING PERSONNEL ACTIONS
Leave Without Pay. If you elect to be placed on Leave Without Pay (LWOP) during your period of active duty, your LWOP will be documented using an SF-50, Notification of Personnel Action. The nature of action will be 473/LWOP-US and the legal authorities will be Q3K/5 CFR 353 and ZJW/Operation Enduring Freedom*. ZJW is a new legal authority that has been established to enable us to identify reservists who are involved in the effort under Operation Enduring Freedom. These same authorities must also be used on the Return to Duty action when you return to civilian employment.

Separations. If you request separation rather than LWOP, the separation must be documented using as SF-50, with nature of action 353/Separation-US and legal authorities Q3K/5 CFR 353 and ZJW/Operation Enduring Freedom.

Remarks on the SF-50 regarding FEHB and FEGLI, if covered, will include the following:
1. B66: Health benefits coverage will continue for 18 months unless you elect to terminate coverage. Contact your servicing Human Resources Office or see the FEHB Handbook at http://www.opm.gov/insure for detailed information.
2. B72: FEGLI coverage continues until a reservist’s time in non-pay status totals 12 months. Reservists should contact their servicing Human Resources Office or see the FEGLI Handbook at http://www.opm.gov/insure for detailed information.
  
  *As Operation Noble Eagle is a part of Operation Enduring Freedom, it too is documented with the new legal authority established for Operation Enduring Freedom.
CONTACTS
If you have any questions please ask your Benefits Contact.

Sample Memo of Understanding (.doc)

Still looking for answers? Email Us

NIH Employee Benefits - Fact Sheet Employment Rights & Benefits of Federal Civilian Employees Who Perform Active Military Duty

Still looking for
answers? Email Us