USERRA Rights Expanded for National Guard and TRICARE and Affirmative Action Plans

The President is expected to sign a Conference Report approved by both the House and Senate to the National Defense Authorization Act for fiscal year 2012. The Conference Report addresses two issues important to employers.

I. EXPANDED USERRA RIGHTS.

First, the bill extends some USERRA right to members of the National Guard called up to conduct homeland security missions within the territorial United States. Current law does not extend the same protections enjoyed by National Guard members assigned overseas to members serving domestically. The amendment would exempt National Guard members assigned on such domestic homeland security assignments (often disaster emergencies) from USERRA’s 5-year limit on active military service, similar to the same protection for overseas assignments.

II. TRICARE AND THE OFCCP SCALED BACK.

Second, in December of 2010 the OFCCP  declared TRICARE providers to be government contractors or subcontractors subject to the OFCCP’s requirement to maintain an Affirmative Action Plan. The Conference Report contains a new section 715 which provides that:

“For the purpose of determining whether network providers under such provider network agreements are subcontractors for purposes of the Federal Acquisition Regulation or any other law, a TRICARE managed care support contract that includes the requirement to establish, manage, or maintain a network of providers may not be considered to be a contract for the performance of health care services or supplies on the basis of such requirement.”

TRICARE is a Department of Defense health care program for active duty and retired military and their families.