This post was authored by Stephanie J. Lowe and Brett A. Overby
Over the past two months, a series of hurricanes has caused devastation to the United States, Puerto Rico, and other regions. As a result, the National Disaster Medical System (NDMS) has called upon some public employees with special skills to deploy to the affected regions to provide disaster and medical relief. This leaves public agencies with questions about how to classify an employee’s leave and whether the employee is entitled to pay for their time away to provide disaster relief efforts.
About the National Disaster Medical System
The NDMS is a healthcare system that collaborates with states, public entities, and private entities to respond to domestic and international emergencies like natural disasters and acts of terrorism. The NDMS is comprised of medical professionals, including physicians, registered nurses, paramedics, and medical examiners. The United States Department of Health and Human Services, Department of Homeland Security, Department of Defense, and Department of Veterans Affairs collectively operate the NDMS. The NDMS also coordinates with the Federal Emergency Management Agency (FEMA).
During an emergency, NDMS issues official orders to deploy individuals to areas in need of relief. For example, in late August, the NDMS deployed a San Diego-based Disaster Medical Assistance Team to assist with the Hurricane Harvey emergency response in Texas.
USERRA Covers National Disaster Medical System Deployments
Federal law expressly provides that deployment under official NDMS orders qualifies as “service in the uniformed services” under the Uniformed Services Employment and Reemployment Rights Act (USERRA). (42 U.S. Code § 300hh-11; 38 U.S.C. §§ 4301-4335.) In addition, the period of time NDMS personnel participate in NDMS-authorized training programs is service in the uniformed services. Therefore, for purposes of USERRA coverage, NDMS personnel are treated as members of the uniformed services and are entitled to all rights and benefits under USERRA.
Compensation and Benefits Under USERRA
Generally, USERRA does not require employers to pay employees wages for time spent performing uniformed service. However, USERRA deems an employee’s military service to be a leave of absence that entitles an employee to receive the same rights and benefits that the employer generally provides to other similarly situated employees on a leave of absence. This includes all bonuses and raises. While USERRA does not require employers to pay employees for military service, a state may enact legislation requiring employers to do so (as California has done).
Under USERRA, employees have the right to request and use vacation, annual leave, or similar leave with pay. Employees may also use accrued sick leave if the agency allows similarly situated employees on a comparable leave of absence to use paid sick leave. However, an agency may not require an employee to use vacation, annual leave, or similar leave during such period of military service.
Compensation and Benefits Under California Law
As mentioned above, states may grant more beneficial rights to individuals than USERRA requires. Under California Military and Veterans Code section 395.01, any public employee who is on a temporary military leave of absence is entitled to receive his or her compensation as a public employee for the first 30 days of such absence. A “temporary military leave of absence” is an order for active military training, inactive duty training, encampment, naval cruises, special exercises, or “like activity” for a period not to exceed 180 calendar days. A “public employee” is any officer or employee of the state, or any county, city, municipal corporation, school district, irrigation district, water district, or other district. While there is no express language providing whether Section 395.01 applies to public employees deployed for disaster and medical relief purposes, the broad definition of “temporary military leave” appears to encompass orders for the “uniformed services” of a NDMS deployment.
The California Military and Veterans Code limits its pay requirements to no more than 30 calendar days during any one military leave or during any one fiscal year unless the agency provides for more. Therefore, agencies should also check their memoranda of understanding and internal policies for further guidance.
California law also provides job-protected leave allowing employees to take time off to perform emergency duties or attend related training. Under California Labor Code sections 230.3 and 230.4, an employee who performs duties as a volunteer firefighter, as a reserve peace officer, or as emergency rescue personnel, and who works for an employer with 50 or more employees, shall be permitted to take temporary leaves of absence, not to exceed an aggregate of 14 days per calendar year, to engage in fire, law enforcement, or emergency rescue training.
If you have any questions about these issues, please contact our Los Angeles, San Francisco, Fresno, San Diego, or Sacramento office.