Employment Rights and 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. For additional information, contact 301-496-3164 or refer to the EAP website.
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 you are a member of the Reserve or National Guard called or ordered to active duty under certain specified provisions of law, you are entitled to Reservist differential pay, as specified in 5 U.S.C. 5538 . Reservist differential payments are paid when your projected civilian basic pay for a covered pay period exceeds actual military pay and allowances allocable to that pay period.
When you perform active military duty you may request paid military leave, as specified in 5 U.S.C. 6323(a) . 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 perform active military duty you may be granted an additional 22 days of military leave under 5 U.S.C. 6323(b) if your leave is granted for the purpose of providing military aid to assist domestic civilian authorities to enforce the law or if you perform full-time military service as a result of a call or order to active duty in support of a contingency operation. The term "contingency operation" means a military operation that -
- is designated by the Secretary of Defense as an operation in which members of the armed forces are or may become involved in military actions, operations, or hostilities against an enemy of the United States or against an opposing military force; or
- results in the call or order to, or retention on, active duty of members of the uniformed services under section 688, 12301(a), 12302, 12304, 12305, or 12406 of title 10, United States Code, chapter 15 of title 10, United States Code, or any other provision of law during a war or during a national emergency declared by the President or Congress.
If you elect to use the additional 22 days of military leave, your compensation from NIH will be reduced by the amount of military pay for the days of military leave.
To request this additional leave, you must provide a copy of the orders to your supervisor and administrative officer. You must also 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 Benefits and Payroll Liaison Branch, 31 Center Drive MSC 2215, Room B3C23, Bethesda, MD 20892-2215.
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) . 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 .
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. For further guidance on the repayment of a lump-sum payment for annual leave, refer to the 5 CFR Parts 531, 550, and 591 .
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.
If you are enrolled in the Federal Employee’s Health Benefits (FEHB) Program, you may elect to continue or terminate coverage during the active duty military service period.
- Continuation of Coverage. You may elect to continue FEHB coverage for up to 24 months from the date of separation or beginning of LWOP. If you are called to active duty as a reservist in support of a contingency operation, you may continue FEHB coverage at no charge. NIH will pay the premiums for you while on military duty. You are not required to reimburse NIH for this benefit. If you are NOT called to active duty in support of a contingency operation, you are responsible for the employee share of the premiums for the first 12 months. During the last 12 months of the 24-month period, you must pay both the employee and the Government shares of the premium, plus an additional 2 percent administration fee.
At the end of the 24 months, FEHB coverage will terminate. You will 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). If you think that you may want to terminate your coverage sometime prior to the end of the 24 month period, you should waive your participation in premium conversion .
- Termination of Coverage. You may elect to terminate your FEHB coverage. If you are participating in premium conversion , and want to terminate FEHB, you may do so only within 60 days of your leave of absence (as this is a qualifying life event ) or during an annual open season. The termination will be effective at the end of the last pay period in which premiums can be withheld. You will receive a free 31-day extension of coverage during which you can convert to a nongroup policy.
The termination is not considered a break in the 5 year continuity of coverage necessary for continuing FEHB into retirement. However, the period during which the termination is in effect does not count toward satisfying the requirement.
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 180 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.
If you weren’t enrolled in FEHB when you entered military duty, you may enroll within 60 days after you return to civilian service. For additional information, refer to Frequently Asked Questions about FEHB Coverage for Federal Civilian Employees Called to Military Duty
If you are enrolled in the Federal Employees’ Life Insurance Program (FEGLI), coverage will continue at no cost for up to 12 months of nonpay status. 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 at no cost for up to 12 months or until 90 days after your military service ends, whichever date comes first. After completion of your first 12 months of active duty military service, you may elect to continue or terminate coverage.
- Continuation of Coverage. You may elect to continue FEGLI coverage for an additional 12 months (for a total of 24 months since date of separation or beginning of non-pay status). You must pay both the employee and agency share of premiums for Basic coverage and the full premium for any Optional coverage (there is no agency contribution).
- Termination of Coverage. You may elect to terminate your FEGLI coverage at the end of 12 months in nonpay status, subject to a 31-day extension of coverage and the right to convert to an individual policy.
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. For additional information, refer to Frequently Asked Questions about Military and FEGLI .
Dental and Vision Insurance
If you are enrolled in the Federal Employees' Dental and Vision Insurance Program (FEDVIP), you may elect to continue or cancel coverage during the active duty military service period.
- Continuation of Coverage. You may continue FEDVIP coverage. BENEFEDS will bill you directly after two consecutive pay periods of LWOP. You cannot incur a debt and missed payments will be paid post-tax. If you fail to make payments, your policy will be terminated.
- Cancellation of Coverage. If you (or your spouse) are called to active military duty, you may elect to cancel FEDVIP coverage. Contact BENEFEDS at 1-877-888-FEDS (3337). You may enroll in FEDVIP, within 60 days after returning to pay status.
Long Term Care Insurance
If you are enrolled in the Long Term Care (LTC) insurance program, your coverage will remain in effect as long as you continue to pay premiums. If you pay your premiums through payroll deduction, you will need to contact Long Term Care Partners at 1-800-LTCFEDS (1-800-582-3337) to make other billing arrangements. You may also complete the Billing Change Form .
Flexible Spending Account
If you are enrolled in a Flexible Spending Account (FSA), NIH will not withhold your allotment during the period of LWOP. You may elect to freeze your account, prepay allotments, cancel election or elect a Qualified Reservist Distribution (QRD).
- Freeze account. You will not be eligible for reimbursement of any health care expenses incurred during that period until you return to pay status and your allotments are successfully restarted. However, if you are enrolled in a Dependent Care FSA, expenses you incur during your nonpay status may be reimbursed up to your account balance. When you return to pay status, your allottments will be recalculated based on the number of pay dates remaining in the Benefit Period.
- Prepay allotments. You can accelerate your allotments prior to your period of non-pay status. Eligible expenses incurred during non-pay status will be eligible for reimbursement.
- Cancel election. You can cancel your election for the remainder of the year and reduce your coverage to the amount deposited as of the start of non-pay status. Expenses you incur during your leave will not be eligible for reimbursement under any of your FSAs.
- Elect a Qualified Reservist Distribution (QRD). If you are enrolled in a Health Care FSA or Limited Expense Health Care FSA and are called to active military service for a period of 180 days or more, you are eligible to request a QRD. QRD allows you to receive the balance in your account instead of forfeiting that money. The drawback is that the distribution will be taxable wages, and you also give up your ability to submit eligible expenses for the remainder of the Benefit Period. For additional information, refer to Frequently Asked Questions about QRD's.
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 (TSP)
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. For additional information, refer to the TSP Fact Sheet “Effect of Non-pay Status on TSP Participation.”
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.”
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:
- 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.
- 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.
- 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
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.
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.
Remarks on the SF-50 regarding FEHB and FEGLI, if covered, will include the following:
- B66: An employee subject to the provisions of P.L. 108-375 is eligible for continued FEHB coverage up to 24 months when called to active duty and certain requirements (including serving in support of a contingency operation) are met. An employee subject to the provisions of P.L. 108-454 is eligible for FEHB coverage for 24 months when absent because of service in the uniformed service and certain requirements are met. Contact your servicing Human Resources Office or see the FEHB Handbook for detailed information.
- B76: FEGLI coverage continues at no cost to you until your time in nonpay status totals 12 months. If you are in active duty military status, you may elect to continue FEGLI coverage for an additional 12 months by paying both the employee and agency premiums (Basic coverage) and by paying the entire cost (Optional coverage). Per Section 1102 of Public Law 110-181, you must make the election before the end of your first 12 months in nonpay status. Contact your servicing Human Resources Office or see the FEGLI Handbook for detailed information.
For information on any of this information contact the Benefits and Payroll Liaison Branch at 301-496-2404.
Sample Memo of Understanding