(b) Termination. A former employee's entitlement to reemployment terminates for:

(1) Failure to apply for reemployment within the time limit stated in paragraph (a) of this section;

(2) Resignation from tribal service without the joint consent, described in paragraph (a)(3) of this section, of the tribal organization and the Federal employer; or

(3) Failure to accept, within 10 calendar days of receipt thereof, an offer of reemployment made under § 352.706 which is determined by the employing agency or by the Merit Systems Protection Board on appeal to be a proper offer of reemployment.

§ 352.706 Agency response to reemployment application.

(a) Employee's right to reemployment. An employee is entitled to be reemployed by the reemploying agency as promptly as possible, and, in any event, within 45 calendar days after agency receipt of application.

(1) Within the competitive area the employee is entitled to reemployment in:

(i) The position held immediately before leaving the agency;

(ii) One in the same competitive level; or

(iii) Another position for which qualified and eligible at the same grade or level and in the same competitive area as the position the employee last held in the agency. The employing agency determines the position under paragraph (a)(1) (i), (ii), or (iii) of this section to which the employee is entitled.

Reduction-in-force procedures shall be applied where necessary in determining the position to which the employee has a right. In applying the reduction-in-force regulations, the applicant shall be considered an employee of the agency.

(2) Extending the area. Responsibility for reemploying an applicant is nation-wide within the agency. If the applicant is not placed under paragraph (a)(1) of this section, the agency must extend reemployment rights, based on the employee's availability, for assignment outside the competitive area. The employee is entitled to a position, for which qualified and eligible,

at the same grade or level as the position last held in the agency. Where necessary, reduction-in-force procedures shall be applied in determining the position to which the employee has a right. The applicant shall be considered an employee for the purpose of applying the reduction-in-force regulations.

(b) Employee option. Before the competitive area is extended under paragraph (a)(2) of this section, an employee who cannot be placed under paragraph (a)(1) of this section, in the competitive area at the same grade or level as the position last held is entitled, if the employee elects, to reemployment in a position at a lower grade or level identified under the same conditions and procedures as paragraph (a)(1) of this section.

(c) Agency option. At any stage in the process, the agency has the option to satisfy the employee's right to reemployment by offering a vacant position which, under reduction-in-force regulations, is in accord with the employee's rights. Also, with the employee's consent, right to reemployment can be met by placement in a vacant position, for which the employee is qualified according to agency determination, and available, outside the organizational or geographic area of entitlement, either at the appropriate grade or at a grade other than the one to which entitled.

(d) Basis for agency refusal to reemploy. An agency may refuse to reemploy when the employee was last separated from tribal employment for serious cause establishing unsuitability for reemployment.

(e) Basis for agency inability to reemploy. An agency may find it is unable to reemploy in the event no position can be found under procedures in this section.

§ 352.707 Employee appeals to the Merit Systems Protection Board.

(a) If an agency denies reemployment to a person claiming reemployment rights under this subpart, the agency shall inform the individual of that denial and of the reasons therefor by a written notice. In the same notice, the agency shall inform the employee of the right to appeal to the

Merit Systems Protection Board under the provisions of the Board's regulations. The agency shall comply with the provisions of § 1201.21 of this title.

(b) If an employee considers reemployment to be not in accordance with this subpart, the employee is entitled to appeal to the Merit Systems Protection Board under the provisions of the Board's regulations.

(c) Refusal of a tribe to hire a Federal employee is not appealable to the Merit Systems Protection Board.

(5 U.S.C. 7701, et seq.)

[44 FR 48953, Aug. 21, 1979]

Sec.

Subpart E-Restoration Rights of TAPER Employees

353.501 Rights of TAPER employees. AUTHORITY: 38 U.S.C. 2021, et seq., and 5 U.S.C. 8151, unless otherwise noted.

SOURCE: 40 FR 23836, June 3, 1975, unless otherwise noted.

Subpart A-General Provisions

§ 353.101 Scope.

This part sets forth rights and obligations of employees and agencies in connection with restoration following (a) military duty subject to the provisions of 38 U.S.C. 2021, et seq. (formerly section 9 of the Military Selective Service Act of 1967, as amended), and (b) employee injuries subject to the provisions of 5 U.S.C. chapter 81, subchapter I.

§ 353.102 Definitions. In this part:

(a) "Agency" means (1) any department, independent establishment, agency, or corporation in the executive branch, including the U.S. Postal Service and Postal Rate Commission, (2) the government of the District of Columbia, and (3) with respect to restoration following a compensable injury, any agency in the legislative and judicial branches or other employing organization listed in 5 U.S.C. 8101(1).

(b) "Leave of absence" means military leave, annual leave, leave without pay, continuation of pay, or any combination of these.

(c) "Military duty" means a period of (1) active duty for training or for service in the Armed Forces of the United States, (2) inactive duty training in the Armed Forces of the United States, and (3) active duty in the Public Health Service that is covered by 38 U.S.C. 2024(b). For the purpose of this paragraph, full-time training or other full-time duty performed by a member of the National Guard under 32 U.S.C. 316, 503, 504, or 505 is considered active duty for training in the Armed Forces of the United States, and inactive duty training performed by a member of the National Guard under 32 U.S.C. 502 or 37 U.S.C. 206(a)

or 1002(a) is considered inactive duty training in the Armed Forces of the United States.

(d) "Injury" means a compensable injury sustained under the provisions of 5 U.S.C. chapter 81, subchapter I, and includes, in addition to accidental injury, a disease proximately caused by the employment.

(e) "Fully recovered" means compensation payments have been terminated on the basis that the employee is able to perform all the duties of the position he left or an equivalent one.

[40 FR 23836, June 3, 1975, as amended at 43 FR 2379, Jan. 17, 1978]

§ 353.103 Persons covered.

(a) The provisions of this part concerned with military duty cover each employee of an agency who enters on military duty from:

(1) A career or career-conditional appointment in the competitive service;

or

(2) An appointment without time limitation in a position outside the competitive service.

(b) Subpart E of this part covers the restoration rights of TAPER employ

ees.

(c) The provisions of this part concerned with employee injury cover the following persons:

(1) A civil officer or employee in any branch of the Government of the United States, including an officer or employee of an instrumentality wholly owned by the United States, who was separated or furloughed from a position without time limitation as a result of a compensable injury;

(2) An individual rendering personal service to the United States similar to the service of a civil officer or employee of the United States, without pay or for nominal pay, when a statute authorizes the acceptance or use of the service, or authorizes payment of travel or other expenses of the individual;

(3) An individual, other than an independent contractor or an individual employed by an independent contractor, employed on the Menominee Indian Reservation in Wisconsin in operations conducted under a statute relating to tribal timber or logging operations on that reservation;

(4) An individual employed by the Government of the District of Colum

bia;

(5) An individual appointed to a position on the office staff of a former President under section 1(b) of the Act of August 25, 1958 (72 Stat. 838);

(6) A Peace Corps Volunteer or Volunteer Leader; and

(7) Individuals enrolled in programs under title I of the Domestic Volunteer Service Act of 1973 (Pub. L. 93113) for periods of service of at least 1 year; but do not include

(i) A commissioned officer of the Regular Corps of the Public Health Service;

(ii) A commissioned officer of the Reserve Corps of the Public Health Service on active duty;

(iii) A commissioned officer of the Environmental Science Services Administration; or

(iv) A member of the Metropolitan Police or the Fire Department of the District of Columbia who is pensioned or pensionable under § 521.535 of title 4, District of Columbia Code.

§ 353.104 Agency action at time employee enters on military duty.

Each employee who enters on active duty with restoration rights under sections 2021 or 2024 (a), (b), or (c) of title 38, United States Code, shall be either separated or furloughed, at the option of his agency, when he enters on military duty, except that an agency may elect to place a member of a reserve component of the Armed Forces or a member of the National Guard on leave of absence, instead.

§ 353.105 Agency action when an employee sustains a compensable injury. Agencies should carry injured employees on leave without pay for at least the first year the employee is receiving injury compensation under 5 U.S.C. chapter 81. Extensions of such leave may be granted, if warranted, based on review of each individual case.

§ 353.106 Notification of rights and obligations.

An agency shall notify an employee who is separated, furloughed, or given leave of absence because of military

duty or injury, of his rights, obligations, and benefits relating to his Government employment.

§ 353.107 Maintenance of records.

Each agency shall identify the position vacated by an employee who is injured or leaves to enter on military duty. It shall also maintain the necessary records to assure that all such employees are preserved the rights and benefits granted by this law and this part.

Subpart B-Agency Action in Employee's Absence

§ 353.201 Personnel actions.

(a) Each agency shall consider every employee absent because of compensable injury or military duty for all promotions for which he would be considered were he not absent. A promotion based on this consideration is effective on the date it would have been made if the employee were not absent.

(b) An agency shall place an employee whose position is regarded upward during his absence due to injury or military duty, in the regraded position.

(c) An agency may not demote or separate an employee absent on military duty. If the employee's position is abolished during his absence, the agency shall reassign him to another position of like seniority, status, and pay.

(d) An employee absent because of injury is subject to the same terms and conditions of employment as though he had not been injured.

§ 353.202 Transfer of function to another agency.

If the function with which an employee absent because of injury or military duty was associated at the time of his departure, is transferred to another agency and if the employee would have been transferred with the function under Part 351 of this chapter if he were not absent, the gaining agency shall retain the employee in his position or assign him to a position of like seniority, status, and pay. It shall also assume the obligation to re

store the employee in accordance with law and this part.

§ 353.203 Abolishment of agency.

If an agency is abolished and its functions are not transferred to another agency, it shall furnish OPM a list of its employees absent because of injury or military duty. For each employee, the list shall state the employee's name, date of birth, position, grade, and pay, and the name of the organizational unit in which his position was located. The agency shall note in each employee's Official Personnel Folder that notification was made under this section.

Subpart C-Agency Obligation To Restore

§ 353.301 Extent of agency's obligation and how discharged.

When an employee is entitled to restoration under section 2021 or 2024 (a), (b), or (c) of title 38, United States Code, or to restoration or priority consideration under 5 U.S.C. 8151, the agency shall follow the requirements of this subpart.

[43 FR 2379, Jan. 17, 1978]

§ 353.302 Time limit for restoration.

(a) An employee returning from military duty is entitled to be restored as soon as possible after his application for restoration, filed in accordance with the requirements in law, is received in the agency but, in no event, later than 30 days after his application is received.

(b) An employee who has fully recovered from an injury or disability within 1 year after the date of commencement of compensation, or from the time compensable disability recurs if the recurrence begins after the injured employee resumes regular fulltime employment with the United States, is entitled to resume his or her former position (or an equivalent one) immediately upon cessation of compensation.

[40 FR 23836, June 3, 1975, as amended at 43 FR 2379, Jan. 17, 1978]

§ 353.303 Position to which restored.

An employee is entitled to be restored to employment in the following order, unless the position is occupied by an employee in a higher retention subgroup under Part 351 of this chapter:

(a) To the position to which promoted while he was injured or on military duty, or, if that position is not available, to a position of like seniority, status, and pay;

(b) To the position he left because of injury or military duty, or, if that position is not available, to a position of like seniority, status, and pay;

(c) To the next best available position for which he is qualified. For purposes of this paragraph, the next best available position is one that most nearly approximates in seniority, status, and pay the position to which an employee is entitled under either paragraph (a) or (b) of this section. §353.304 Physical disqualification.

(a) A returning employee who, because of a disability sustained during military duty, is disqualified for a position to which he has restoration rights, is entitled to be restored to another position in the agency for which he is qualified that will provide him like seniority, status, and pay, or the nearest approximation thereof consistent with the circumstances in his case.

(b) An employee who, because of compensable injury or disability, is disqualified for a position to which he has restoration rights (including an equivalent position) is entitled, within 1 year of the date he began receiving compensation, to be restored to another position in the agency for which he is qualified that will provide him like seniority, status, and pay, or the nearest approximation thereof consistent with the circumstances in his case.

§ 353.305 Conflicting rights.

If two or more employees are entitled to be restored to the same position, the employee who left his position first is entitled to the prior right of restoration. Each other employee is entitled to be restored in accordance with the provisions of §§ 353.303 and 353.304.

§ 353.306 Partially recovered injured employees.

Agencies must make every effort to restore, according to the circumstances in each case, an employee or former employee who has partially recovered from a compensable injury and who is able to return to limited duty.

[44 FR 56683, Oct. 2, 1979]

§ 353.307 Injured employees who take longer than 1 year to recover.

An employee who was separated because of a compensable injury and whose recovery takes longer than 1 year from the date compensation began (or from the time compensable disability recurs if the recurrence begins after the injured employee resumes regular full-time employment with the United States), is entitled to priority consideration for restoration to the position he or she left or an equivalent one provided he or she applies for reappointment within 30 days of cessation of compensation. (See parts 302 and 330 of this chapter for more information on how this may be accomplished for the excepted and competitive services, respectively.)

[43 FR 2379, Jan. 17, 1978]

§ 353.308 Notice of right of appeal.

(a) When an agency refuses to restore, or determines that it is not feasible to restore an employee under the provisions of law and this part, it shall notify the employee in writing of the reasons for its decision and of his or her right to appeal to the Merit Systems Protection Board under the provisions of the Board's regulations. The agency shall comply with the provisions of § 1201.21 of this title and shall forward a copy of the notice to the Board.

(b) When an agency restores an employee it shall notify the employee that he or she is being restored in accordance with the requirements of § 353.303. The agency shall also inform the employee that he or she is entitled to appeal to the Merit Systems Protection Board under the provisions of the Board's regulations. The agency shall comply with the provisions of § 1201.21 of this title.