NDMS Responders and the Uniformed Services Act (USERRA) Helen C. Miller MD Team Commander, NDMS DMAT OR2

1. NDMS Respondersand theUniformed Services Act(USERRA)Helen C. Miller MDTeam Commander, NDMS DMAT OR2

2. Dept. of Health & Human Services • Until transition to Dept. of Homeland Security in 2003, NDMS responders served on intermittent temporary federal appointments to the US Public Health Service under DHHS

3. NDMS NDMS is the lead Federal agency for disaster medical response • Natural Disasters • Technological Disasters • Major Transportation Accidents • Acts of Terrorism including Weapons of Mass Destruction Events

4. NDMS transferred to DHS March 1, 2003. • The NDMS subsequently tasked as a Section under the Federal Emergency Management Agency • The NDMS Section continues to serve as the Lead federal agency for disaster medical response

5. Mortuary (DMORT) Veterinary (VMAT) Medical (DMAT) Specialty DMATs NMRT International Burn Pediatrics Mental Health Field Care Triage and Patient Movement Definitive Care Facility Augmentation Staging Public Health support Specialty Care NDMS Disaster Responders

6. The Post 9/11/01 Era • Clear statutory recognition of NDMS and the role of NDMS responders as healthcare reservists was clarified

7. Public Law 107-188 • Public Health Security and Bioterrorism Preparedness and Response Act • Signed into law in June, 2002 • Began as HR3448 in 2001 • www.mediccom.org/public/NADMAT/default.htm

8. Defines the NDMS 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 Intermittent appointments Liability Scope of appointment Training Work Injury Compensation Participation agreements for nonfederal entities Employment and Re-Employment Rights Public Law 107-188

9. PL107-188 ‘‘(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).

10. PL 107-188 “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.”

11. PL 107-188 ‘‘(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.”

12. USERRA • Recognition of the rights and responsibilities established by USERRA will facilitate re-entry into the workforce by those who stood ready to serve our nation • Under USERRA, a person who is re-employed is entitled to the rights and benefits s/he would have attained if s/he had remained continuously employed.

13. Uniformed Services Act (USERRA) • www.dol.gov/vets/usc/vpl/usc38.htm • www.esgr.org • www.mediccom.org/public/NADMAT/default.htm

14. It’s the law, so what’s the problem?

15. PL 107-188 Relatively new law Practices prior to law Has NDMS been activated? Or is the event an authorized NDMS training? If so, USERRA applies USERRA 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 violated Two Issues

16. Training Notification Scheduling Work Release Penalty Types of Training allowed Unique trainings ie smallpox vaccination Response Alert Status Rapid Deployment Length of Mission Missions tasked via other agencies Ongoing Work Release Issues

17. NDMS is not visible NDMS is not a regulatory agency Teams not always provided timely training, alert or activation order Proactive letter to employers Activity-specific letters NDMS performance criteria apply whether or not USERRA applies Obstacles for Teams

18. April 5, 2004 [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.  Sincerely, CAPT J. Gary Sirmons, Acting Chief National Disaster Medical System Section DHS, FEMA

19. EXAMPLES

20. DMAT Personnel Unable to • join a DMAT team • commit to alert roster • attend field training • attend NDMS required courses • be immunized against smallpox • deploy on a disaster mission …because of work release issues

21. “ I wind up paying all of them back in time or money.  Most deployments cost me at least a couple of thousand dollars in funds or time spent in payback.  Orange alert in Feb '03 cost me $6K, and about 8 extra shifts.  Most think that I'm off on some junket and have no clue what it's really all about.  It doesn't matter how much information I give them, or how many times I explain, they don't get it.  The typical reply is “(name), what if we all did something cool?  There'd be no one left to staff the ED."  Or "I've never heard of such, are you sure that this is real?”

22. “Initially (employer) tried their best to keep me off deployments  and actually threatened my job a couple of times.  After allowing the group attorneys to view the law, they changed their tune slightly.  Now they have grudgingly give(n) me time off for (DMAT) deployments.  It is not counted as leave or vacation.  I have to make up my shifts when I get home.  This usually means that my days off are spent paying back my time spent on deployment.” 

23. “ There is really an array of situations on the (DMORT) teams. Some people work for small businesses and some work for large corporations. Some have their own practice and some work in someone else's practice. It's a different situation every time…a union member had to go up against the employer when they tried to make her use her vacation time for a two-week deployment. Her union, who was representing her, told her that it was probably a lost cause, but I wrote a letter of support and they relented and gave her her vacation time back.”

24. “…never encountered any problems until we deployed to Hurricane “X”…I was called into (the mayor’s) office, and the chief and assistant chief were in there. He told me to get used to the fact that I would not always be able to deploy with "this group you belong to" so get used to that fact. I do not plan on letting his statement keep me from deploying, but I have been told that I always have to notify everyone up the chain of command and that I must get my (own) shifts covered. During our last alert, I covered my shifts prior to notifying the chief, because in the past he has told people they could not cover for me. So I have a few roadblocks, but I will deploy. ”

25. “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'. “

26. “…I advised (my immediate boss) I'd be leaving that Saturday (it was Thursday morning) and he thanked me for letting him know…within about 10 minutes I received a call from my regional manager saying," I understand you've got to leave...what if I told you you can't go?“ I asked him if there was a reason that he would ask that and if there was something that had changed when I had advised them over three weeks earlier. He replied that he didn't think it was important that I go and asked,"..how would you feel if I said that if you go, you'd be fired?“…I had called HR to let them know that morning as well. They gave me the okay and their blessing....and thanks. That infuriated him and he hung up on me.…When I returned (they waited about 4 weeks) and I was called into the office and asked if I was 'happy ' there. I asked why it was thought otherwise. I was advised by my immediate boss that he received a call for the regional manager who was angry that I called HR and got their okay....so he told my immediate boss to find a reason to get rid of me.I figured that I'd be better off getting out on my terms since I hadn't seen very much enforcement by NDMS of any kind over the years (with or without a legal law) and since there was never any FULL declaration by NDMS of their commitment to support anyone, leaving on my terms was politically correct. I found that my immediate boss was fired about a week later by the regional boss ...rumor has it that I wasn't supposed to quit...I was supposed to be fired..…”

27. “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.”

28. “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.”

29. “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. ”

30. “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. ”

31. “Some hospitals required DMAT smallpox vaccinees to take three weeks vacation postvaccination. One wouldn’t even let you come on the premises. Others let you work non-clinical duties for 3 weeks, but then also required any “missed” clinical shifts scheduled during the postvaccination period to be made up. We were promised reassignment to non-clinical duties with pay, but that didn’t happen. If you couldn’t find your own trade coverage for all those shifts and agree to make them all up later in addition to your regular schedule or use your own vacation time to cover it, you could not be immunized.”

32. “The new law does not cover federal employees (civil service and uniformed service) for some reason… team members have been officially and unofficially reprimanded and hassled over the years, and I believe that these stories have significantly hurt our recruitment abilities”

33. “Mr. X was deployed to a hurricane, and did such a good job that he was placed as Deputy MST Commander and asked to stay an extra 2 weeks (one month total). When he returned to his office, somebody else was occupying it, his belongings had been boxed up, and his desk was sitting in the hallway ready to be surplused. He was told that he needed to find another position. ”

34. “LCDR Y was deployed to a hurricane, and even received express written permission via email from his supervisor beforehand to do so. He sensed quite a bit of support, so thought nothing of deleting that email. Upon returning to work after deployment, the same supervisor claimed that permission had not been granted and wrote him up as AWOL.”

35. “Ms. Z was scheduled to deploy to a hurricane, and her supervisor would not release her from clinical duties without express written permission from the head of nursing at the hospital. This forced us to wake up the head of nursing at 1 am. Although the member received verbal approval at 1 am, written approval was delayed until 3 pm. If it had not been for a delay in the military flight, we would have been one nurse short for the deployment.”

36. “…Members from our team have used personal leave both for training and deployments. We were recently told that for the uniformed services, personal leave is NOT authorized because an officer would not be covered by FTCA (Federal Tort Claims Act) while off duty.”

37. Some employers have learned there is little or no penalty for violation of USERRA 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

38. Alerts • Teams required to roster 35 specific positions rapidly • Timeline reduced from >24 hours to 18 hours, now to 4-6 hours • Require 14 day availability • Sequential availability may require up to 6 weeks readiness of roster personnel

39. Alerts • For Alert Status, there is no mission order and it has not been answered if NDMS is considered activated • Required Alert tasks such as loading trucks, rostering personnel, confirming pharmacy cache availability must occur rapidly, often during work hours

40. Alerts • Entire teams stood down if employer only allowed 1 week availability instead of 2 • No mechanism of support for team to interface with employer rapidly to solve issue • Some teams operational status in the NDMS system demoted based upon alert rostering time issues related to work release

41. Smallpox Vaccination • Context of federal training with federal work comp provided • Willing, eligible personnel • Some teams also on formal Alert status • National guidelines by CDC and USDOL

42. Access to vaccine Access to training as vaccinators State rules not congruent with federal guidance Employers who refuse to follow national CDC guidelines Employers who refuse to follow Labor Department guidelines Employers not following their own policies DMAT Smallpox Vaccination Issues

43. New missions under FEMA • May include international response or staging missions that may not be a domestic emergency declaration • Iran Earthquake • Pacific Typhoons • Guam NICU support

44. Key Questions 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?

45. Key Questions 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?

46. Key Questions • If an NDMS responder has suffered a violation of USERRA, who should team commanders advise that they contact? • ESGR Ombudsman? • US Dept of Labor-VETS office in their state? • NDMS? • FEMA General Counsel? • DHS?

47. Key Questions • What is the time limitation on making a USERRA claim? • What documentation is needed? • Does each individual need to make a claim, or can the team request investigation when multiple team members are involved? • Can personnel in different departments at the same institution be treated differently?