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NDMS Responders and the Uniformed Services Act (USERRA) Helen C. Miller MD Team Commander, NDMS DMAT OR2. Dept. of Health & Human Services.
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NDMS is the lead Federal agency for disaster medical response
Defines NDMS purpose to provide health services, health-related social services, appropriate human and auxiliary services to respond to the needs of victims of public health emergency
Be present for limited time where risk of public health emergency identified
Ongoing preparedness activities
Scope of appointment
Work Injury Compensation
Participation agreements for nonfederal entities
Employment and Re-Employment RightsPublic Law 107-188
‘‘(3) EMPLOYMENT AND REEMPLOYMENT RIGHTS.— ‘‘(A) IN GENERAL.—Service as an intermittent disaster response appointee when the Secretary activates the National Disaster Medical System or when the individual participates in a training program authorized by the Assistant Secretary for Public Health Emergency Preparedness or a comparable official of any Federal agency specified in subsection (b)(2)(B) shall be deemed ‘service in the uniformed services’ for purposes of chapter 43 of title 38, United States Code, pertaining to employment and reemployment rights of individuals who have performed service in the uniformed services (regardless of whether the individual receives compensation for such participation).
“All rights and obligations of such persons and procedures for assistance, enforcement, and investigation shall be as provided for in chapter 43 of title 38, United States Code.”
‘‘(B) NOTICE OF ABSENCE FROM POSITION OF EMPLOYMENT.—Preclusion of giving notice of service by necessity of Service as an intermittent disaster-response appointee when the Secretary activates the National Disaster Medical System shall be deemed preclusion by ‘military necessity’ for purposes of section 4312(b) of title 38, United States Code, pertaining to giving notice of absence from a position of employment. A determination of such necessity shall be made by the Secretary, in consultation with the Secretary of Defense, and shall not be subject to judicial review.”
Relatively new law
Practices prior to law
Has NDMS been activated?
Or is the event an authorized NDMS training?
If so, USERRA applies
NDMS responders have same employment leave/re-employment rights as military reservists under the Uniformed Services Act
NDMS responders and employers need to understand the law
Responders and employers need to know what to expect when law is violatedTwo Issues
[Merge Team Commander’s Name ]
[Merge Team Name]
[Merge Team Address]
[Merge City, State ZIP]
Dear [Merge Team Commander’s Name]:
By this letter, I certify that [Merge Team Member’s Name] is an intermittent Federal employee with the National Disaster Medical System (NDMS), which is part of the Federal Emergency Management Agency, Department of Homeland Security. This individual is a member of [Merge Team Name] which is an active team within the NDMS. As a member of this team, they are an integral part of our nation’s readiness to respond to public health emergencies.
Pursuant to the NDMS statute, 42 U.S.C. § 300hh-11(e)(3)(A), service as an NDMS intermittent Federal employee when NDMS is activated or when the individual participates in authorized training is considered to be “service in the uniformed services” for purposes of employment and reemployment rights under the Uniformed Services Employment and Reemployment Rights Act (USERRA), 38 U.S.C. §§ 4301 etseq.
USERRA, a Federal statute, was designed to minimize or eliminate employment problems that can result from reserve and other non-career military service. The NDMS statute extended USERRA to NDMS intermittent personnel. Under USERRA, employers are entitled to receive prior notice, either verbal or written, from their employees or their employee’s NDMS team commander of pending NDMS duty, although there may be instances where such notice is precluded by “military necessity,” which is expressly allowed under the NDMS statute. See 42 U.S.C. § 300hh-11(e)(3)(B). Employers must grant their employee’s request for absence without exception. Furthermore, employers may not condition permission to leave for NDMS duty upon presentation of written orders. Additionally, employers may not require NDMS personnel to use vacation pay or time saved to conduct their NDMS duty assignments. USERRA prohibits employer discrimination on account of an employee’s service or obligations as an NDMS team member. Employers may not retaliate against a person who attempts to enforce his or her rights under the law or testifies in court or assists in an investigation.
If employers have any questions about NDMS, you may contact us at 800-872-NDMS or you can visit the website at
http://ndms.fema.gov/. For a more detailed look at USERRA, employers may also review a publication entitled “A Non-Technical Resource Guide to the Uniformed Services Employment and Reemployment Rights Act (USERRA)” from the website of the U.S. Department of Labor, which administers USERRA. http://www.dol.gov/vets/whatsnew/userraguide0903.rtf. Additional information regarding USERRA may be found on the website of the organization Employer Support of the Guard and Reserve, http://www.esgr.org.
CAPT J. Gary Sirmons, Acting Chief
National Disaster Medical System Section
…because of work release issues
“My employer allows me to be deployed but does require me to use my vacation time. …I am a salaried professional and you would think they would be more willing to work with me. After the Guam deployment in 2002, I had to work New Years day because I had no time left to take. As it is, I don't have enough vacation to cover another deployment... I did request time off without pay for the deployment, pointing out the dictionary meaning of 'vacation' and stressing that deployments are not exactly ' a day at the beach'. “
“Our team is sponsored by one hospital group. The competing hospital group in this area will not allow any of their employees to join the team. Several have asked but have been told that "it would not be in their best interest." Also, one person on the team was downsized after two deployments in one year. They were originally hired by this group because of their civic involvement. After the first deployment they were greeted as a returning hero. After the second, they were scum and were let go soon after. Incidentally, this same thing also happened to an Air Force Reservist…who worked at the same facility. She was downsized after her deployment to Bosnia.”
“One area we have some difficulty in is with the police officers who are interested in security positions. Since most police departments are short handed normally, plus a lot of the officers are national guard or reserve also. More than anything, some don't want to commit for their people to be off for 2 weeks at a time.”
“One of our team members…insisted on a letter from the Department of Homeland Security as our ‘parent’ agency. The ambulance provider would not accept a letter from me (Team Commander), and despite my many attempts with DHS and NDMS to obtain such a letter, it never came. I called the Ambulance company's owner, and after speaking with her for over an hour, she decided to let our team member off for the field training exercise. However, she did not like the fact that our team member's position was protected under the Uniformed Service's Act for deployments and training, and she literally made his life miserable to the point where he quit. ”
“Although new to the NDMS system, my experience with my company has been 100% positive. They are very supportive of my participation and the only thing that may prevent future deployment would most likely be not being available when needed. I am offering to use vacation time for training and/or deployment, which is fine by me. I have tons every year; typically I don’t use it so I would lose it anyway. ”
No criminal penalty
No fine, no interest payment
When refused USERRA leave, responders usually make own effort using vacation or trade/make up shifts
Later employer can claim this was voluntary, and use it as a precedent for future trainings and deployments
Effective January, 2004 some NDMS teams must have rostered and present to duty station within 4-6 hours of notification.
How do we get help on this new time frame if an employer refuses work release under USERRA?
If the NDMS responder was flatly told they could not go on an authorized training or deployment (or were told to find their own coverage or vacation and were unable to), and thus were not released from work, is there any recourse?