Vol. 10No. 2
Winter
2007
INSIDE
Health Care Crisis
Latest Update
Reemploying Returning Veterans
DHS Immigration No-Match Rule on Hold
Aging Workforce - Employer Issues
Employer Briefs |
Braun Consulting News
News on Personnel, Labor Relations and Benefits
See our Archive Pages for Back Issues of Braun Consulting News!
 Reemploying Returning Veterans |
USERRA Overview
More USERRA Obligations
Disabilities
Post Traumatic Stress
Exceptions
Links for More Information
All employers in the United States have an obligation to their employees who are in the uniformed services and are called up to leave the workplace and serve their country. This obligation is both moral and legal.
In this article we will review key parts of the legal obligation employers have towards returning employees who have been absent for duty.
Most employers want to do the best they can to treat returning veterans fairly, so it is helpful to be educated about what must be done, and what the legal requirements are. In some cases this may be difficult, or even impossible, and we will discuss those situations here as well.
In thanks for their service it is important to treat our returning veterans' fairly upon their resumption of work at the jobsite. The legal requirements set down by our government help define what is proper and what is legally necessary to insure fair and just treatment for everyone involved.
 USERRA Overview |
Any employee who has been called up by our government to "service in the uniformed services" is protected by the Uniformed Services Employment and Re-Employment Rights Act of 1994 (USERRA), the Americans With Disabilities Act and the Veterans Benefits Improvement Act, enacted by Congress in 2004.
All employers are required to meet the obligations of USERRA.
USERRA in general applies to members of the "uniformed services". These include the Armed forces, the Army National Guard, the Air National Guard, the commissioned corps of the Public Health Service, and any other category of persons designated by the President in time of war or national emergency when performing service voluntarily or involuntarily, including active duty, active duty for training, inactive duty training, and full-time National Guard duty.
Service also includes services performed as an intermittent disaster-response appointee upon activation of the National Disaster Medical System or participation in an authorized training program, even if the individual is not a member of the uniformed services.
Employees who are called to service or training have the right to be reemployed in a civilian job. The employer is required to either hold their jobs open or re-employ them in similar positions when they return from their military duties.
The employee must provide the employer with advanced written or verbal notice of their upcoming service, unless the employee cannot give notice due to military necessity, impossibility, or unreasonableness.
When the employee's service is over, they must provide the employer with a notice of intent to return to work. Under most circumstances, the employer must re-employ the applicant within two weeks.
Also, the returning veteran must be provided job protection by the employer for a minimum of 180 days up to a maximum of one year.
At the employee's request, USERRA requires that health benefits continue for the employee and his or her dependents for up to 24 months while in the military.
The Department of Labor's, Veterans Employment and Training Service is authorized to investigate and resolve complaints of USERRA violations.
| More USERRA Obligations |
USERRA requires that re-employment of returning service members must be in the same seniority, status and pay that the employee would have achieved if they had not been called to active duty and remained continuously employed with their employer.
The employer must award any pay increases and promotions that the employee would have received, and these must be applied retroactively. That is, they would be effective as of the date they would have been made had the employee not been required to report to active duty.
Any military reservists must not be required to use their vacation time when deployed or in training for any branch of the U.S. military.
And finally, USERRA also affords protection to re-employed service members relative to pension benefits. The employer must not treat the employee as if there had been a break in service - military leave must be treated as service with the employer for pension vesting and benefit accrual purposes.
| Disabilities |
The U.S. Bureau of Labor Statistics has reported that approximately one in five veterans discharged from active duty between 2002 and 2005 have significant disabilities connected to their military service. That number is likely to have grown even higher over the last two years.
Employers should assist returning veterans in assessing whether they will need any type of accommodation in order to meet job requirements and the expected level of performance.
The employer will be required to provide the veteran with "reasonable accommodations" in the workplace if a veteran returns to work with any type of physical disability. This accommodation must be done in a timely manner.
Some examples of reasonable accommodations would include, but are not limited to:
Employers should know that these requirements for reasonable accommodation also apply to company-sponsored training programs and social events, and that employees who supervise other workers are required to receive training related to persons with disabilities.
| Post Traumatic Stress |
One of the most challenging situations for employers is when a returning veteran suffers from post-traumatic stress disorder or other psychological disabilities as a result of their military service.
According to the Anxiety Disorders Association of America, symptoms of PTSD can include:
Symptoms usually begin within three months of a trauma, although there can be a delayed onset and six months can pass between trauma and the appearance of symptoms. In some cases years can pass before symptoms appear. In this case the symptoms are often triggered by the anniversary of the trauma, or with the experience of another traumatic event. Symptoms may vary in frequency and intensity over time (Anxiety Disorders Association of America, n.d.).
If a veteran suffers from PTSD the employer may be required to modify the employee's work schedule and policies to facilitate appropriate medical treatment. It may also be necessary to provide some kind of accommodation through "job retraining."
Here is an example of how this process might unfold in the case of a veteran who has returned to work and is now an office employee. He has PTSD and anxiety issues since returning to work, and is easily frightened when being approached unsuspectingly. Since he works in a structured cubicle environment with his back to the cubicle entrance he feels vulnerable and wishes to be alerted when a coworker or supervisor approaches him while entering the cubicle behind him.
In this case the solution might be to use a monitor-mounted mirror so that the employee could see the entrance behind him. Another possibility is to place a sensor mat at the entrance of the cubicle which will make an audible alert when someone steps on it. These are the types of accommodations that may be necessary to work with an employee who has PTSD.
It is important to remember that confidentiality is an absolute right that the employee has regarding these issues, and must never be violated.
| Exceptions |
There are very few exceptions to USERRA obligations for employers.
Here are a few:
"Impossibility" may apply to situations such as reductions in force, but not in situations where an employer could reassign current employees to be able to re-employ the veteran.
"Undue hardship" is defined by USERRA as an action requiring significant difficulty or expense, when considered in light of the nature and cost of the action needed.
To receive exemption for undue hardship an employer must prove that the returning employee is unable to perform the job he or she held prior to being called to active duty. However, this can happen only after the employer has made a reasonable good-faith effort to re-employ the veteran in a job that is comparable to the former position in both job responsibilities and compensation.
Factors that figure into the determination of undue hardship may include:
Be careful about utilizing any exceptions, and consider seeking professional assistance if you are required to do so.
| Links for More Information |
The full text of the USERRA Act can be found at www.dol.gov/vets.
A good summary of USERRA can be found here:
More information on exceptions:
Read our previous articles in Braun Consulting News
"USERRA Update: Amendment Signed Into Law"
Sacrifice All Around: Impact of Military Reserves Activation on Employers
National Guard & Reserve Leave. (A complete overview of USERRA included.)
http://www.esgr.org/userra.asp?p=summary
http://nvti.cudenver.edu/userracd/Exceptions.htm
(S. 2486 Veterans Benefits Improvement Act of 2004)
DHS Immigration No-Match Rule on Hold
The Contents of this News Letter are intended for general information and should not be construed as legal advise or opinion. Click Here to view our Web Site Disclaimer Page. *
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