WORKPLACE LAW -
Rights of Returning Service Members
Question:
One of my company’s employees enlisted in military service about three years ago. He recently contacted me and informed me that he was wounded while on active duty, and is back in the area and would like to come back to work. We filled his job while he was away. What are my obligations to re-employ him, and what do I do if his injury makes him unable to work?
Answer:
This is an issue more and more employers will face as military service members return to the workforce. According to the U.S. Department of Defense, as of February 2008, 30,960 military personnel serving in the Global War on Terror (combining Iraq, Afghanistan, and surrounding duty stations) have been wounded in action. Returning service members have specific legal rights relating to reemployment and accommodation of disabilities that employers need to be aware of.
Three different laws come into play when evaluating your obligations to an employee who is returning to work after military service. The Uniformed Services Employment and Reemployment Rights Act (USERRA), which is enforced by the U.S. Department of Labor (DOL), sets forth the requirements for reemploying veterans with and without service-connected disabilities. USERRA applies to all employers regardless of size, and prohibits employers from discriminating against employees or applicants for employment on the basis of their military status or military obligations. USERRA provides that an individual may be absent from work for military duty for five years and retain reemployment rights. There are exceptions that extend the five-year limit. The period an individual has to apply for reemployment or report back to work after military service is based on time spent on military duty.
Returning service members are to be reemployed in the job that they would have attained had they not been absent for military service, with the same seniority, status and pay, as well as other rights and benefits determined by seniority. USERRA also requires that reasonable efforts (such as training or retraining) be made to enable returning service members to refresh or upgrade their skills to help them qualify for reemployment. The law requires the employer to reemploy the returning service member in a different job if the service member cannot qualify for the position he/she would have attained absent military service. While an individual is performing military service, he or she is deemed to be on a furlough or leave of absence and is entitled to the non-seniority rights accorded other individuals on non-military leaves of absence.
USERRA also provides protection for disabled veterans, requiring employers to make reasonable efforts to accommodate their disabilities. Service members convalescing from injuries received during service or training may have up to two years from the date of completion of service to return to their jobs or apply for reemployment.
In addition to USERRA, California’s Fair Employment and Housing Act (FEHA), and the Americans with Disabilities Act (ADA), prohibit private and state and local government employers from discriminating against individuals on the basis of disability. These laws also require employers to provide reasonable accommodation for veterans with service connected disabilities, in the same manner as other disabled employees or applicants. The process of providing a reasonable accommodation will usually begin with a request from the employee. The request for accommodation is the first step in the interactive process between the employer and employee to identify and make reasonable accommodations.
The EEOC recently published a guide for employers entitled “Veterans with Service Connected Disabilities and the Americans with Disabilities Act” that contains a lot of useful information on this topic. You can access it at
http://www.eeoc.gov/facts/veterans-disabilities-employers.html.
Another good resource for USERRA information is the Department of Labor website,
http://www.dol.gov/vets/programs/userra/userra_fs.htm.
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