If you have ever employed or thought about employing a veteran or member of the military, this article is for you. As armed conflicts continue around the world, every employer can expect to encounter employees who have served, are serving or will serve in a branch of the United States Armed Forces. So it is a good idea to take a few minutes to review the federal laws specifically applicable to these service members.
The Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) is a federal law prohibiting employers from discriminating against employees or applicants for employment on the basis of their military service or obligations. Unlike many other federal statutes, USERRA applies to all employers, regardless of size. It also protects the reemployment rights of individuals who leave their civilian jobs (whether voluntarily or involuntarily) to serve in the uniformed services, including the U.S. Reserve and state National Guards.
At its most basic level, USERRA provides that returning service members must be reemployed in the job that they would have attained had they not been absent for military service (commonly called the “escalator position”), with the same seniority, status and pay that they would have had if they had not left. What does that mean? If an employee returns and asks to take a test for a promotion that he missed while he was gone, you should promptly grant that request. If employees bid on jobs based on seniority with the company, the service member’s bid seniority should not be reduced based on military service. 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. And, unlike some other federal laws, the right of a veteran to reemployment is not contingent on the existence of a vacancy. You must employ them, even if every position in your company is full.
Similar to the Americans with Disabilities Act (ADA), USERRA also provides for alternative reemployment positions if the service member cannot qualify for the “escalator” position. However, the USERRA requirement is more stringent: if a veteran cannot resume the pre-service position he or she left due to a service-related disability, USERRA requires the employer to provide a position for injured returning veterans that is equivalent in seniority, status and pay, or – if an equivalent position does not exist – in the nearest approximation to an equivalent position. In some circumstances, the employer is required to provide training or retraining for the position. If you are ever faced with a situation where an employee is unable to return to his or her prior position, I recommend that you contact your employment law counsel of choice. Figuring out what the “equivalent position” or “nearest approximation” is a deceptively complex, fact-specific analysis. You will want to be confident you are handling the service member’s reemployment properly, since the failure to do so can result in a court order directing you to reemploy them in another position, pay for lost wages and benefits, and liquidated damages (double the amount of the other money awarded).
A service member who is called to active duty does have certain obligations to his or her employer. She should give her employer notice before her deployment, typically as far in advance as is reasonable. Further, the service member is required to notify her employer upon her return within a certain timeframe, which varies depending on how long she was deployed.
Under the Americans with Disabilities Act, private employers with 15 or more employees may not discriminate against anyone on the basis of a disability. The ADA also requires that an employer provide reasonable accommodations that allow an employee to perform the essential functions of his or her job. It also requires confidentiality of medical information and limits the medical information that an employer can request during the hiring process and after employment begins.
Many veterans have suffered physical and mental injuries during or as a result of their military service. Thus many veterans with service-related injuries will meet the broad definition of “disabled” under the ADA. Assuming a veteran meets the other requirements of the ADA, employers should be prepared to engage in an interactive process with veterans who request an accommodation. The interactive process is simply a dialogue about reasonable accommodation options with an employee who has a disability. The discussion can be a literal in-person meeting (that you document thoroughly), or it can be done through phone calls, emails or letters. The point is that it should be a conversation directly between the employer and the employee, discussing what accommodation might exist that would allow the employee to do the job.
In 2008, Congress amended the Family and Medical Leave Act (FMLA) to provide additional leave for the family of service members in certain circumstances. While we most commonly think of FMLA leave as being used for the serious health condition of an employee or a family member, “military caregiver leave” entitles an eligible employee who is the spouse, son, daughter, parent or next of kin to take up to 26 workweeks of unpaid leave to care for a “covered service member” with a serious injury or illness incurred in the line of duty or aggravated by military service.
Further, the FMLA allows eligible employees to take up to 12 weeks of FMLA leave per 12-month period for any “qualifying exigency” arising from the foreign deployment of the employee’s spouse, son, daughter or parent. Qualifying exigencies include things like making alternative childcare arrangements for a child of the deployed military member, attending certain military ceremonies and briefings, or making financial or legal arrangements to address the military member’s absence.
Not every employer is covered by FMLA, and not every employee will be eligible for FMLA leave. For coverage, the employer must have at least 50 employees. (Note: If a facility of a covered employer has fewer than 50 employees in a 75-mile radius, then the employees are not eligible for FMLA leave – unless they are deemed to “report to” a facility that does meet the 50-employee minimum.) In addition, an employee must have worked for the covered employer for at least 1,250 hours in the preceding 12 months before the leave would begin. Calculating FMLA leave – and particularly the 26-week military caregiver leave – is very complex, and employers should consult with employment counsel before doing so.
Finally, if you are a federal contractor, be aware that you may have additional obligations to hire and promote veterans.
The Bottom Line
In short, veterans are carefully protected by federal law. If you have an employee who is called to active duty (or volunteers to go), you must allow them to go without undue hassle. Once they come back, you must welcome them back into the workforce as if they never left. If they need help reentering the workforce, you must provide assistance. If they ask for an accommodation, you must discuss that with them in good faith. Further, you should be cautious and consult your counsel when disciplining or terminating a service member, as USERRA provides certain protections that endure long after the deployment is over.
Military service members and veterans can be a valuable part of your team. If you keep these federal laws in mind, you will be well on your way to building a positive (and lawful) workplace for them. TR
This column is made available by the lawyer and publisher for educational purposes only, to give you general information and a general understanding of the law, not to provide specific legal advice or to establish an attorney-client relationship. This column should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.
Susan Bassford Wilson is an employment attorney in the Midwest with the nationwide firm of Constangy, Brooks, Smith & Prophete, LLP. She can be reached at [email protected] or on Twitter at