With the passage of Public Law (P.L.) 116-315, Johnny Isakson and David P. Roe, M.D. Health Care and Benefits Improvement Act of 2020 (P.L. 116-315), the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) protections apply to members of the National Guard while in a state funded State Active Duty (SAD) status under certain conditions, as of January 5, 2021.

As a federally funded program, ESGR can provide education for state funded uniformed service, however ESGR cannot expend resources mediating State Active Duty related disputes. To help Service members and employers understand how this change to USERRA affects them and how to get assistance, ESGR has provided five frequently asked questions with responses below. 

How do employers, servicemembers and Ombudsman know if service qualifies for USERRA protections under the new Public Law 116-315?

Pursuant to P.L. 116-315 “Veterans Health Care and Improvement Act," USERRA coverage was extended to National Guard members serving on State Active Duty when they meet “ANY” of the following criteria:  a.) for a period of 14 days or more, or b.) in support of a national emergency declared by the President under the National Emergencies Act, or c) in support of a major disaster declared by the President under section 401 of the Stafford Act.  Recommend that the inquirer check the authority and purpose cited on the orders to see if it meets the criteria for USERRA coverage, and follow-up with the issuing authority, if needed.
Reference:  USERRA, 38 USC Section 4303(13), (15); P.L. 116-315

Are there prerequisites that must be met to be eligible for USERRA coverage?

Yes, Pursuant to P.L. 116-315 “Veterans Health Care and Improvement Act" National Guard members on State Active Duty are covered by USERRA when they meet “ANY” of the following criteria:  a.) Serving for a period of 14 days or more, or b.) in support of a national emergency declared by the President under the National Emergencies Act, or c.) in support of a major disaster declared by the President under section 401 of the Stafford Act.
Reference:  USERRA, 38 USC Section 4303(13), (15); P.L. 116-315

Who should I contact for assistance with State Active Duty (SAD) related issues with my employer?

For questions regarding State Active Duty related employer issues you may contact: 

1. Your National Guard TAG office;
2. Employer Support of the Guard and Reserve (ESGR): ESGR can be reached M-F 8am-6pm EST by calling 800-336-4590 or at https.www.ESGR.mil. 
3. Department of Labor Veterans, Veterans Employment and Training Service (DOL VETS): a list of DOL VETS points of contact in each state can be found at https://www.dol.gov/agencies/vets/about/regionaloffice

What happens when State Active Duty orders convert to Title 32 or vice versa?

Service under Title 32 is already covered by USERRA. In this case, State Active Duty performed on or after January 5, 2021, for a period of 14 days or more, or in support of a national emergency declared by the President under the National Emergencies Act, or in support of a major disaster declared by the President under section 401 of the Stafford Act will be covered by USERRA as well, regardless of whether it is later converted to service under Title 32.
Reference:  USERRA, 38 USC Section 4303(13), (15); P.L. 116-315

What is State Active Duty for the purpose of USERRA protections?

State Active Duty means National Guard training or other duty, other than inactive duty, performed under the authority of the Governor of a state.  It does not include duty performed under federal authority (such as Title 10 or Title 32), nor duty for which the National Guard member is entitled to pay from the Federal Government.
Reference:  USERRA, 38 USC Section 4303(13), (15)