The federal Uniformed Services Employment and Reemployment Rights Act (USERRA) requires employers to reinstate employees who take military-related leave. It also prohibits job discrimination against military or ex-military personnel.
But a lesser-known USERRA provision deals with how employers must handle soldiers who return from active duty with injuries or other disabilities. USERRA is similar to the ADA in requiring you to 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 soldiers 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. If returning disabled military personnel can’t perform their former jobs, you must offer training and accommodations, or make every effort to qualify them for a position of equivalent seniority, status and pay. If they still cannot meet the position requirements, USERRA demands that you find a position they can perform that is as close as possible to their pre-deployment pay, status and benefits.
Better armor and medical advances mean more wounded soldiers are returning from the Iraq War than from any other war in history. For every soldier killed in the Iraq War, 16 soldiers return home wounded. Contrast that to Vietnam, where there were 2.6 wounded soldiers for every fatality, and World War II, which yielded fewer than two. More than 150,000 Iraq War veterans currently receive disability benefits. Many are National Guard members or reservists who hold private-sector jobs back home in the United States.
Soldiers returning from Iraq are suffering in unprecedented numbers from brain injuries, psychological trauma and multiple amputations. Losing their jobs on top of the stress of their disabilities has left many homeless.
The U.S. 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 or the U.S. Defense Department. They can also directly file suit in federal court.
How to comply
First, the law requires that you educate your employees about their USERRA rights. You can post an educational poster or distribute information via e-mail, your company intranet or your handbook. Some private companies sell the poster, but you don’t need to buy it. Simply download it from the Labor Department web site at www.dol.gov/vets/programs/userra_Federal.pdf#Federal.
Beyond poster requirements, employers should have a thorough understanding of how to comply with USERRA. If employees go on, you are required to re-employ them in the same or similar jobs, as long as the absence is less than five years and they reapply 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 former jobs. If your organization had to downsize or eliminate a job while the employee was on military leave, the employee has no right to reinstatement.
Accommodating disabled vets
Say one of your workers, Joe Soldier, returns from his year-long reservist duty in Iraq with a physical disability. Follow this three-part strategy:
1. If Joe’s injury limits his abilities 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 must 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 former 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 that is closest to his old position and for which he is qualified.
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