#userra

USERRA

  USERRA is the primary federal statute governing the reemployment rights of returning veterans. Returning employees need to only submit a timely reemployment application (typically within 14 or 90 days, depending on their length of service) and otherwise establish that they were discharged from duty under honorable circumstances.

  Upon receipt of the application, an employer must reinstate uniformed service members (typically within two weeks) to the position they would have held if they had never taken military leave (their “escalator” position) in the first place. Before you decide whether or not they are qualified to return to their escalator position, you must provide refresher as well as any other training that would have been furnished during their leave of absence.

  Exemptions from this reemployment obligation are few and far between. An example would be where the circumstances have changed so significantly, such as an intervening reduction in force, that reemployment would be impossible or unreasonable under the circumstances. Following reemployment, the returning veteran can only be terminated “for just cause” for 180 days (if their deployment was for more than 30 but less than 180 days), or for one year following reemployment (if the length of deployment exceeded 180 days). USERRA also restricts employers from discriminating against employees on the basis of military service, or from retaliating against those who pursue enforcement assistance.

  FMLA

  The FMLA was recently revised to provide both “military caregiver” and “qualifying exigency” leave to close family members (i.e., the spouse, child, parent or “next of kin”) of covered servicemembers. Military caregiver leave allows eligible employees to take up to 26 workweeks of unpaid leave during a 12-month period to care for close family members who have sustained serious injuries or illnesses in the line of active duty. FMLA also allows eligible employees to take up to 12 workweeks of qualifying exigency leave each year to tend to certain “exigencies” (i.e. attending military ceremonies, arranging for alternative childcare arrangements, etc.) brought about by their close family member’s federal active duty commitment.

  In other words, FMLA applies only in those circumstances where your employee is affected by virtue of their relationship to a uniformed servicemember. When the employee actually is a uniformed servicemember, USERRA will outline your legal rights and obligations.

  ADAAA

  USERRA outlines a bottomline for employer’s legal responsibilities to returning veterans. You may also be operating under additional obligations imposed by laws such as the ADAAA (and any state law counterparts). The ADAAA prohibits employers from discriminating against qualified employees who are known, regarded as, or have a history of being disabled.

  Full compliance with USERRA will not eliminate the need for additional obligations in the form of reasonable accommodation for any known, service-connected physical or mental impairments that significantly restrict the ability to perform one or more major life activities.

  Excluding undue hardship, employers must provide reasonable accommodation to disabled veterans to aid them in performing the essential functions of their pre-duty positions, and to allow them to enjoy equivalent benefits and privileges of employment (including access to sponsored training programs, break areas, social events, etc.).

  With recent amendments widening the extent of the term, “disability,” the ADAAA has cast a wide net around this concept, covering millions of Americans in statutory protection. As a result, it is more important than ever to properly engage in the process with regard to service-connected injuries such as mobility, cognitive, sensory, and psychiatric impairments.

  Unique Challenges Presented By Mental Impairments

  Around 25% of all veterans serving in the middle east conflict have returned home from active duty with physical disabilities. Due to the nature of the conflict, nearly 20% of them are returning with diagnoses consistent with Post-Traumatic Stress Disorder (PTSD) or depression as well as traumatic brain injuries.

  It is also fair to assume that a significant number of veterans are returning with symptoms that have yet to be formally diagnosed, perhaps due to an unwillingness to acknowledge or disclose the disorder. While most will return fit to immediately undertake the essential functions of their positions, others may require a period of adjustment that calls for a gradual reintegration.

  Public Resources Are Available

  A number of public resources are available to assist in the readjustment process, including the ESGR, a federal ombudsman service devoted to Employer Support for the Guard and Reserve, the Disability Management Employer Coalition, the Veterans Administration, and a host of private third-party programs. The Society for Human Resource Management has even recently partnered with the U.S. Army to provide additional resources to facilitate the reemployment process.

The ADAAA suggests evaluating each reintegration on a case-by-case basis when it comes to accommodating returning veterans and other disabled employees. Accommodating for those afflicted with impairments such as PTSD can often be implemented for a relatively small expense. However, in other cases, enhanced supervisory training may be required to help ensure that the return-to-work transition is a smooth one.