Number 71, April 2003 (Web site only):
Paid Leave for Federal Employees Performing PHS Service

By CAPT Samuel F. Wright, JAGC, USNR*

Q: I always read your Law Review articles, and have found Law Review 46, about coverage of the Public Health Service (PHS) Commissioned Corps, and Law Reviews 33 and 62, about the right of federal employees to paid military leave when performing Reserve or National Guard service, particularly useful. Last year, I left a civilian job at the U.S. Department of the Interior (DOI) to enter active duty in the PHS Corps. I expect to leave active duty after four years of service. Will I have re-employment rights at the DOI? Is DOI required to pay me for the 120 hours of paid military leave that I accrue each year?

A: The Uniformed Services Employment and Reemployment Rights Act (USERRA), 38 U.S.C. 4301-4333, applies to any person who leaves a civilian job (federal or otherwise) to perform "service in the uniformed services." USERRA has its own definition of "uniformed services," and that definition specifically includes the PHS Corps. See 38 U.S.C. 4303(16). You will have re-employment rights under USERRA if you meet that law’s eligibility criteria as to prior notice to the civilian employer, duration and character of service, and timely application for re-employment. Those criteria are summarized in Law Reviews 5-7. USERRA does not require your employer to pay you while you are away from work performing service.

You are not entitled to paid military leave under 5 U.S.C. 6323, which is discussed in detail in Law Reviews 33 and 62. That section applies to service "as a Reserve of the armed forces or the National Guard." [5 U.S.C. 6323(a)(1).] Section 6323 does not define those terms, so we must look elsewhere in the United States Code. The term "armed forces" includes only the Army, Navy, Marine Corps, Air Force, and Coast Guard. See 10 U.S.C. 101(a)(4). The term "uniformed services" includes the armed forces plus the commissioned corps of PHS and the commissioned corps of the National Oceanic and Atmospheric Administration. See 10 U.S.C. 101(a)(5). The PHS corps is a "uniformed service" but not an "armed force." I explained in Law Review 46 that PHS officers and former officers have some but not all of the legal rights of persons who are serving or have served in the armed forces. A statutory amendment would be required to give you the right to paid military leave during your PHS service.