Human Resources Division
Retirement & Benefits

EMPLOYMENT RIGHTS AND BENEFITS OF FEDERAL CIVILIAN EMPLOYEES WHO PERFORM ACTIVE MILITARY DUTY

1. EMPLOYEE ASSISTANCE PROGRAMS (EAPs).

EAPs provide short-term counseling and referral services to help with financial, emotional, and dependent care problems. These services are available to employees who have been called to active military duty (or who volunteer for such duty) and to employees who are family members of those who are performing active military duty. In addition, many EAPs offer services to family members of employees.

2. PAY.

Employees performing active military duty will receive compensation from the Armed Forces in accordance with the terms and conditions of their military enlistment or commission. They will not receive any compensation from their civilian employing agency unless they elect to use military leave or annual leave as described in paragraphs 3 and 4, below. As usual, agencies should continue the payment of availability pay for criminal investigators and annual premium pay for administratively uncontrollable overtime (AUO) work, or regularly scheduled standby duty, on days of military leave or annual leave.

3. MILITARY LEAVE.

Employees who perform active military duty may request paid military leave, as specified in 5 U.S.C. 6323(a). Under the law, an eligible full-time employee accrues 15 days (120 hours) of military leave each fiscal year. In addition, an employee 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 an employee 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. Part-time career employees accrue military leave on a prorated basis. Employees who elect to use military leave will receive full compensation from their civilian position for each hour charged to military leave, in addition to their military pay for the same period. 5 U.S.C. 6323 was amended in 2001 to require charges for military leave to be made on an hour for hour basis for all hours the employee would have worked.

Employees who perform active military duty may be granted an additional 22 days of military leave under 5 U.S.C. 6323(b) if such leave is granted for the purpose of providing military aid to assist domestic civilian authorities to enforce the law or protect life and property.

4. ANNUAL LEAVE.

Employees who perform active military duty may request the use of accrued and accumulated annual leave to their credit (under 5 U.S.C. 6303 and 6304), and such requests must be granted by the agency. In addition, requests for advanced annual leave may be granted at the agency's discretion. Employees who use annual leave will receive compensation from their civilian position for all hours charged to annual leave in addition to their military pay for the same period.

5. LEAVE WITHOUT PAY (LWOP).

The Uniformed Services Employment and Re-employment Rights Act of 1994 (USERRA) generally requires an agency to place an employee entering the military on LWOP unless the employee chooses to be placed on military leave or annual leave, as appropriate, or the employee requests to be separated. Full-time employees do not earn annual or sick leave in a pay period in which they have accumulated 80 hours of LWOP. In addition, part-time employees on LWOP also earn less annual and sick leave, since they earn leave based on the number of hours in a pay status.

6. LUMP-SUM LEAVE PAYMENTS.

Employees who enter into active military duty may choose to (1) have their annual leave remain to their credit until they return to their civilian position, or (2) receive a lump-sum payment for all accrued and accumulated annual leave. However, an agency 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. When an employee who has been on military duty returns to active Federal service prior to the end of the period covered by the lump-sum payment, the employee must refund an amount equal to the pay that covers the period between the date of re- employment and the expiration of the lump-sum leave period. Agencies may not re-credit any restored annual leave to the employee's leave account.

7. HEALTH BENEFITS.

Employees who are put in a non-pay status while on military duty can keep their Federal Employees Health Benefits (FEHB) coverage for up to 18 months. Employees of the United States Department of Agriculture (USDA), called to more than 30 days of active duty in support of a contingency operation, will have their premiums paid in full by their agency. At the end of 18 months, FEHB coverage terminates. Employees get a free 31-day extension of coverage during which they can convert to a non-group policy. (These employees are not eligible for TCC (Temporary Continuation of Coverage).

If an employee doesn't want to continue the FEHB coverage while he/she is in non-pay status, the employee can elect in writing to have the FEHB coverage terminated. (The employee still gets the free 31-day extension and the right to convert).

Return to Active Federal Service. When an employee who has been on military duty returns to active Federal service, he or she can enroll in an FEHB plan within 60 days of the return to service.

8. LIFE INSURANCE.

Employees who are put in a non-pay status while on military duty can keep their 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. Employees get a free 31-day extension of coverage and have the right to convert to a non-group policy.

If a Federal employee with FEGLI is called-up to active military duty and is killed, death benefits are payable to the employee's beneficiaries. Accidental death and dismemberment benefits are also payable under Basic insurance (and Option A, if the employee had that coverage) unless the employee was in actual combat at the time. Accidental death benefits are in addition to regular death benefits. Even if accidental death benefits are not payable, regular death benefits ARE payable.

Employees who separate from civilian service to go on active military service are considered to be in a non-pay status for FEGLI purposes and will keep their FEGLI coverage for up to 12 months, or until 90 days after their military service ends, whichever date comes first. These individuals also get the 31-day extension of coverage and right to convert.

Return to Active Federal Service. When an employee who has been on military duty returns to active Federal service, he or she gets back whatever types of life insurance he or she had before going into non-pay status.

9. RETIREMENT.

An employee who is placed in an LWOP status while performing active military duty continues 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 he or she were still in the civilian position.

If the employee becomes disabled for his or her civilian position during the LWOP and has the minimum amount of civilian service necessary for title to disability benefits (5 years for CSRS, 18 months for FERS), the employee will become 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.

If an employee separates to enter active military duty, he or she generally will receive retirement credit for the period of separation when the employee exercises restoration rights to his or hercivilian position. If the separated employee does not exercise the restoration right, but later re-enters Federal civilian service, the military service may be credited under the retirement system, subject to the rules governing credit for military service. However, if an employee covered by CSRS is separated to enter active military duty during a period of war or national emergency as declared by Congress or proclaimed by the President, the employee is deemed not to be separated from his or her civilian position for retirement purposes, unless the employee applies for and receives a refund of his or her retirement deductions.

10. THRIFT SAVINGS PLAN.

For purposes of the Thrift Savings Plan (TSP), no contributions can be made, either by the agency or the employee, for any time in an LWOP status or for a period of separation for the Civilian account. Agencies should refer to the Thrift Savings Plan Bulletin for Agency TSP Representatives, No. 01-22, dated May 3, 2001. For additional information, agency representatives may contact the Federal Retirement Thrift Investment Board at (202) 942-1460. Employees should refer to the TSP Fact Sheet - Effect of Non-pay Status on TSP Participation at http://tsp.gov/forms/oc95-4.pdf

Beginning in January of 2002 Military members started participating in TSP. There are different contribution rules for Military members. When an employee is called to active duty, they can participate in the Military TSP.

If the person is subsequently reemployed in, or restored to, a position covered by FERS or CSRS pursuant to 38 U.S.C. chapter 43, they may make up missed contributions. However, if the employee contributed to the TSP as a member of the uniformed services while on active duty, the amount the employee may make up will be offset by the amount contributed while performing active duty. FERS employees are entitled to receive retroactive Agency Automatic (1 percent) Contributions and, if they make up their own contributions, retroactive Agency Matching Contributions.

Also, if FERS employees separate and their Agency Automatic (1 percent) Contributions and associated earnings are forfeited because they did not meet the TSP vesting requirement, the employees are entitled to have these funds restored to their accounts after they are reemployed. In addition, if employees separate and their accounts are disbursed as automatic cashouts, the employees may return to the TSP an amount equal to the full amount of the payment after they 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://tsp.gov/uniserv/forms/oc95-5.pdf

If a person enters nonpay status to perform military service, and they were paying for a TSP Loan, they will be permitted to suspend payments on the loan until they return to pay status. Although loan payments will not be due before then, interest will continue to accrue for the entire period. (The person cannot repay the civilian TSP loan by making loan allotments from their uniformed services pay.) The maximum time limits for repayment, 5 years for general purpose loans or 18 years for residential loans, will be extended by the length of their military service. In order for these rules to apply, the employee or their agency must notify the TSP Service Office with the beginning date of their military service. This can be done by submittinga TSP-41 Form; sending a copy of the SF-50, Notification of Personnel Action, if it documents your entry into nonpay status to perform military service, or if it is accompanied by your military orders; or a letter from your agency on agency letterhead, including your name, date of birth, and Social Security number, the beginning date of the nonpay status, anticipated ending date, if known, a statement that you entered nonpay status to perform military service, and the signature and title of the agency representative providing the information. If TSP is not notified, the suspension in loan payments cannot exceed one year. When the military service ends, TSP must be notified of the ending date of the military service. If the person separates civilian service to perform military service, they will be required to repay the loan in full or the loan will be declared a taxable distribution.

11. RETURN TO CIVILIAN DUTY.

An employee who enters active military duty (voluntarily or involuntarily) from any position, including a temporary position, has full job protection, provided he or she applies for reemployment within the following time limits:

(A) Employees who served less than 31 days must report back to work at the beginning of the next scheduled workday following their release from service and the expiration of 8 hours after a time for safe transportation back to the employee's residence.

(B) Employees who served more than 30 days, but less than 181 days, must apply for reemployment within 14 days of release by the military.

(C) Employees who served more than 180 days have 90 days to apply for reemployment.

Employees who served less than 91 days must be restored to the position for which qualified that they would have attained had their employment not been interrupted. Employees who served more than 90 days have essentially the same rights, except that the agency has the option of placing an employee in a position for which qualified of like seniority, status, and pay.

Upon return or restoration, an employee generally is entitled to be treated as though he or she had never left for purposes of rights and benefits based upon length of service. This means that the employee 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. An employee who was on a temporary appointment serves out the remaining time, if any, left on the appointment. (The military activation period does not extend the civilian appointment.)

An employee performing active military duty is protected from reduction in force (RIF) and may not be discharged from employment for a period of 1 year following separation (6 months in the case of a Reservist 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), except for poor performance or conduct or for suitability reasons.

12. APPEAL RIGHTS.

13. MISCELLANEOUS.

Allotments for bonds, loans, savings, and long term care insurance will stop when an employee separates or while an employee is in a leave without pay status. When an employee's pay has been garnished by a court order, the appropriate court will be notified of an employee's separation or leave without pay status.

14. CONTACTS.

For further information on employment rights and benefits of civilian Federal employees who perform active military duty, employees should contact the Human Resources Division, Retirement and Benefits Staff at (301)504-1505.

Updated: 03/19/2003