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Federal Register / Vol. 86, No. 208 / Monday, November 1, 2021 / Rules and Regulations As part of the continuing response to coronavirus disease 2019
COVID19, DoD has revised the Code of Federal Regulations CFR to aid civilian employers in more quickly identifying key employees so the Department can better understand the capacity and capability available to support the response to the current pandemic and to avoid military-civilian manpower conflicts in future Declarations of National Emergency or in military mobilizations.
DATES: This final rule is effective on December 1, 2021.
FOR FURTHER INFORMATION CONTACT:
CAPT Richard Howell, 703 6973837.
SUPPLEMENTARY INFORMATION: DoDs internal policy, DoD Directive 1200.07, Screening the Ready Reserve available at https www.esd.whs.mil/
Portals/54/Documents/DD/issuances/
dodd/120007p.pdf establishes requirements for Federal Government employers and the rule parallels those requirements for application to nonFederal employers, i.e., all employers not of the Federal Government State, local, non-profit, private, self-employed, etc., hereafter referred to as employer.
SUMMARY:

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Legal Authority Title 10 U.S.C. 12302 authorizes the President to recall up to 1 million reservists for up to 2 years in times of national emergency. Title 10 U.S.C.
10149, Ready Reserve: continuous screening requires the Secretary to provide a system of continuous screening of units and members of the Ready Reserve to ensure:
1 No significant attrition of those members or units during a mobilization.
2 a proper balance of military skills.
3 those with military skills for which there is an overriding requirement, members having critical civilian skills are not retained in numbers beyond the need for those skills.
4 recognition will be given to participation in combat and national security and military requirements.
5 members whose mobilization in an emergency would result in an extreme personal or community hardship are not retained in the Ready Reserve.
Background The Ready Reserve is the category of reservists most often called to active duty. It consists of three subcategories:
Selected Reserve, Individual Ready Reserve IRR, and Inactive National Guard.
The Selected Reserve are the first to be activated. Most reservists are in this category.

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The IRR is made up mainly of those who have had training and served in an Active Component.
The Inactive National Guard are those who leave active drilling status in the Army National Guard before completing their enlistment and will be put in this category unless they specifically request a transfer to the IRR. Only the Army maintains an Inactive National Guard.
If a reservist is unable to meet the requirements to be recalled, the respective Military Service shall discharge, retire, or transfer the member to the Standby Reserve. The Standby Reserve are reservists who maintain their military affiliation but are not members of the Ready Reserve. This may include reservists who fill key Federal positions as well as members whose civilian employers designate their job as crucial to national security.
Title 10 U.S.C.12302 also states recall consideration will be given to:
1 The length and nature of previous service, to assure such sharing of exposure to hazards as the national security and military requirements will reasonably allow;
2 family responsibilities; and 3 employment necessary to maintain the national health, safety, or interest.
For example, if a health care professional can do society more good as a civilian, that individual may be exempted from recall. If reservists have serious family responsibilities, they may be exempted. The law may also exempt veterans with some disabilities, medical conditions, or certain separation codes from any involuntary recall.
On March 27, 2020, Executive Order 13912, National Emergency Authority To Order the Selected Reserve and Certain Members of the Individual Ready Reserve of the Armed Forces to Active Duty available at https
www.federalregister.gov/documents/
2020/04/01/2020-06985/ nationalemergency-authority-to-order-theselected-reserve-and-certain-membersof-the-individual was issued. While other authorizations are available for recall of the Ready Reserve, this Executive order was required to allow the Secretary of Defense the maximum flexibility for this national emergency to call up Ready Reserve members to help in the countrys response to COVID19.
On April 2, 2020, the Secretary of Defense issued Guidance on Activating the National Guard, Reserve, and Individual Ready Reserve for Coronavirus Disease Response available at https
prhome.defense.gov/Portals/52/
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for%20COVID-19%20OSD00353920%20RES%20Final%201.pdf describing how the Military Services can activate the National Guard and the Ready Reserve to support the domestic response to COVID19.
Expected Impact of the Changes Finalized by This Rule DoDs revisions support military mobilization without diminishing the civilian national coronavirus response.
The rule is meant to enhance civilian employer awareness of the need to provide early identification of critical civilian positions within their organizations and, in coordination with the Military Services, allow the Service member to be considered for service not as a Ready Reserve member who is factored into military mobilization planning.
This rule only discusses employee and employer actions before a mobilization. After a mobilization is ordered, no deferment, delay, or exemption from mobilization will be granted because of civilian employment.
The Uniformed Services Employment and Reemployment Rights Act USERRA, 1994, Public Law 103353, as amended at 38 U.S.C. 43014335, affords reservists and employers various rights and responsibilities regarding reemployment of their civilian position.
Employers must ensure key position determinations are not undertaken in a manner that would violate USERRA, its implementing regulations at 20 CFR part 1002, or other Federal statutes and regulations.
Civilian employers, usually through their onboarding programs, identify key employees to ensure the Military Services have an accurate assessment of Ready Reserve members. This assessment of employees who have a Ready Reserve affiliation is meant to preclude conflicts between a members mobilization requirements and nonFederal civilian employment obligations during times of war or national emergency. Ready Reserve members with critical civilian skills should work with their employer before mobilization.
The efforts of civilian employers and their employees pre-mobilization will help identify employees who are required for the ongoing civilian response to the pandemic. While Ready Reserve members are already required to be screened by their respective Military Service per 10 U.S.C. 10149 and to work with their employer to ensure those with critical civilian skills are identified, these updates to the CFR will ensure a more accurate accounting of capability and capacity of the specialties required for COVID19 response.

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