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USERRA: Know your duty to returning disabled reservists

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in Discrimination and Harassment,Employment Law,FMLA Guidelines,Human Resources

THE LAW. You may know that the federal Uniform Services Employment and Reemployment Rights Act (USERRA) requires employers to reinstate employees who take military-related leave, plus it prohibits job discrimination against military or ex-military personnel.

But a lesser-known USERRA provision deals with how employers must handle employee/reservists who return from active duty with injuries or other disabilities.

USERRA is similar to the Americans with Disabilities Act (ADA) in saying that you must make reasonable efforts to accommodate a returning employee's disability. But USERRA applies to all employers, while the ADA applies only to employers with 15 or more workers. Plus, USERRA offers returning disabled reservists more generous rights.

Specifically, employees who were injured on active duty have up to two years after their return to claim reinstatement to their jobs. Plus, if a returning disabled military person can't perform his old job, an employer may be required to provide training to help that person perform the job or a different job.

WHAT'S NEW. The ongoing Iraq War is causing more U.S. employers to face this issue.

So far, the war has left more than 7,000 service people wounded and not able to return to duty. Many are National Guard members or reservists who hold private-sector jobs back home in the United States.

The Bush administration is understandably sensitive about veteran's rights. The Labor Department recently launched a Web site that allows returning soldiers to electronically file USERRA complaints. (See www.dol.gov/vets.)

Expect an increase in USERRA complaints now that they're easier to file. Returning vets have the option of filing through the Labor Department, the Defense Department or they can directly file suit in federal court.

HOW TO COMPLY: First, make sure you are complying with the new law that requires educating employees about USERRA rights. You can post an educational poster or distribute information via e-mail, your company intranet or your handbook.

Some private companies are selling the poster, but you don't need to buy it. Simply download it from the Labor Department Web site.

Beyond poster requirements, employers should have a thorough understanding of how to comply with USERRA. If employees go on military leave, you are required to re-employ them to the same or similar jobs, as long as the absence is less than five years and he or she reapplies within the appropriate time limits.

While employees are on military leave, you don't need to leave their jobs open. You can hire replacements. But returning workers are entitled to their old jobs. If your organization had to downsize or eliminate the job while the em-ployee was on military leave, the employee has no rights to reinstatement.

Dealing with disabled vets. Say one of your workers, Joe Kilroy, returns from his year-long reservist duty in Iraq with a physical disability. Follow this three-part re-employment strategy:

1. If Joe's injury limits his ability at work, you must talk with him about reasonable accommodations that would allow him to perform the job's essential functions.

If he is no longer qualified for that same position because he lacks training, you are required to provide the training. If machinery, equipment or software has changed while he was serving in the military, you must provide training to bring him up to speed.

2. If, despite your accommodations and training efforts, Joe still isn't qualified for his old position, you must find an equivalent position in terms of seniority, status and pay for which he is qualified.

3. If Joe doesn't become qualified for that other "equal" position, you must employ him in a position closest to his old position for which he is qualified.

Online resources:

 

  • USERRA adviser. Visit the Labor Department's eLaws adviser (a "virtual bureaucrat" that provides guidance on the law) at www.dol.gov/elaws/userra.htm.
  • USERRA poster. To download a version to display in your workplace, go to www.dol.gov/vets/programs/userra/poster.pdf.

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