There has been no official word from the Secretary of Energy, Executive or Legislative Branches regarding military leave since the start of Operation Enduring Freedom.  Benefit continuation for contractor employees called to active duty is required by DOE policy.  My December 2001 memorandum provides the existing Departmental policy regarding salary continuation. (A copy of the memo is provided below.)

Unless the Secretary of Energy or the President issues new guidance, costs associated with contractor employees who participate in Operation Enduring Freedom will continue to be subject to the cost principles at FAR 31. 205-6, “Compensation for personal services” and DEAR 970.3102-05-6, “Compensation for personal services.”

Reimbursement is subject to available appropriations.  The DOE policy under Secretary Watkins was issued after Operation Dessert Shield/Storm ended, i.e., when the terminal liability was known and determined to be within available appropriations.

Given that Operation Enduring Freedom will likely continue, it may be advisable to provide Cognizant Program Secretarial Office (CPSO) with cost estimates and get documentation from the CPSO to support the “open-ended” reimbursement of contractor reservists policies that provide for continuation of salary/wages in addition to benefits.

The following is general information regarding Federal/State Reservists/Military law/regulation:

• Federal military leave law - The Uniformed Services Employment and Reemployment Rights Act (USERRA) was enacted by Congress and signed into law by President Clinton on October 13, 1994.  All American employers, whether private or public and regardless of size, are covered by the USERRA.  The act provides for military leaves of absence (up to five years) and re-employment of eligible employees when they return from military leave.  (In 1989, USERRA was amended to cover U.S. citizens and permanent residents working for U.S. controlled companies in foreign countries).

• State military leave laws - All states, including the District of Columbia and Puerto Rico, have laws regulating military leave.  While most states have passed laws establishing reemployment rights as well for those serving in the military, USERRA supersedes state laws that limit or condition its rights or benefits; however, it does not displace state laws that provide greater right.
 
• Eligibility for leave - Absences to perform any duty (whether voluntary or involuntary) in a “uniformed service” are covered by USERRA, including active duty as well as absences for training, weekend drills, summer camp and fitness-for-duty examinations.

• Pay during leave - USERRA does NOT require pay during military leave.  HOWEVER, companies may voluntarily pay reservists the difference between their regular wage and the military pay.  Some state laws may have additional pay requirements for employees during military duty.

• Regulations under the Fair Labor Standards Act prohibit salary deductions for absences caused by temporary military leave.  However, the regulations permit employers to offset any military pay received by an employee for a particular week against the salary due for that week.

• Vacation - Federal law gives employees on military leave the right to use any vacation or similar leave with pay that they accrued prior to military service.  But use of accrued vacation time is at the employees’ option; employers cannot require the use of vacation time while on military leave.

• Health benefits - Employers must provide COBRA (Consolidated Omnibus Reconciliation Act)-like health benefit continuation coverage for persons who are absent from work to serve in the military, even when the employer, due to its size, is not covered by COBRA.

• Other Benefits - Employees on military leave are entitled to participate in any benefits that are not based on seniority that are available to employees having similar seniority, status or pay who are on nonmilitary leaves of absence.  Examples of this might include year-end bonuses, insurance and accrual of sick or vacation days or any other benefit not based on length of employment that is available to other employees on leaves of absence.

• Replacements - Employers are free to fill vacancies left by employees on military leave.  However, a returning service member is entitled to the reemployment position required by USERRA regardless of whether another person occupies it.  The returnee must be placed in the required position, even if this results in “bumping” the current employee.

Existing Department of Energy Policy Regarding Operation Enduring Freedom Participants

Existing Department of Energy Policy Regarding Operation Enduring Freedom Participants