ADA, USERRA provide job-related protection for disabled vets

Many military service members have returned to civilian life and civilian jobs, and many more will follow. Some of these returning veterans may have service-related impairments. These individuals may have rights under the Americans with Disabilities Act (ADA), the Uniformed Services Employment and Reemployment Rights Act (USERRA), or both. Employers should understand how these two laws apply.

USERRA applies to all employers, regardless of size, while the employment provisions of the ADA apply to employers with 15 or more employees.

The two laws have similar but different provisions when it comes to military service members with disabilities. The ADA prohibits employers from discriminating against applicants or employees because of a disability, and this includes not making reasonable accommodations to their known physical or mental limitations. Employers, however, do not need to provide an accommodation that would impose an undue hardship on the operation of the business. USERRA, on the other hand, has requirements for reemploying veterans with and without military service-connected disabilities.

Both USERRA and the ADA require employers to make certain adjustments — reasonable accommodations — for veterans with disabilities. USERRA, however, requires employers to go further than the ADA by making reasonable efforts to assist a veteran who is returning to employment to become qualified for a job, whether or not the veteran has a service-related disability.

USERRA entitles a returning employee to be reinstated to what’s called the “escalator” position. This is the position that the employee would have attained with reasonable certainty if not for military leave. For example, if an employer is fairly certain that an employee would have been promoted if he or she hadn’t taken military leave, the employee would return to the promoted position. The employer needs to consider such factors as the employee’s length of employment with the company, the employee’s qualifications, and the employee’s disability (if applicable).

The returning employee must be qualified for the reemployment position. In some situations, a returning employee may need some brushing up on job skills or requirements. The employer must make reasonable efforts, such as training or retraining, to help the employee become qualified for one of the following positions:

A position that is equivalent in seniority, status and pay to the escalator positions; or

A position that is the nearest approximation to the equivalent position, consistent with the circumstances of the employee’s case, in terms of seniority, status and pay. This position may be a higher or lower position, depending upon the circumstances.

Employees also have extra time to reapply for their employment position under USERRA, if they are hospitalized for or convalescing from a service-related illness or injury. In such a situation, they have up to two years after military service to submit an application for reemployment. This recovery period must be extended by the minimum time needed to accommodate circumstances beyond the employee’s control that make reporting within the period impossible or unreasonable.

To help illustrate, consider this example: Marissa was wounded while serving in Iraq and was ready to return home to her civilian life and job. She needed about eight months, however, to recuperate. Her military service ended in March, so she had until November to reapply for her job. By the time she was ready to return to work, her job skills as a welder needed refreshing, and her certification had lapsed while she was in the military. She talked to Cal in the company’s human resources department about her plans to return to work. Cal indicated that the company would help her get her certification current and began to look at which position Marissa would have been in if she had not gone on military leave. Cal noticed that Marissa was pursuing a welding inspector certification before she left, and he decided to talk to Marissa to see if she still wanted to pursue that and what training she would need. Marissa told Cal that she was interested in the inspector certification, particularly since her disability would be better accommodated in such a position. In response, Cal said he would work with Marissa to help her obtain the inspector certification.

It’s worthy to note that USERRA also provides for protection from termination except for cause. If an employee’s military service was more than 30 days but less than 181 days, the employee cannot be discharged for 180 days after reemployment. If the employee’s military service was more than 180 days, the employee cannot be discharged without cause for at least one year after re-employment.

Darlene M. Clabault, PHR, is a senior editor and human resources expert at J. J. Keller & Associates Inc., a nationally recognized compliance resource firm. For information, visit www.jjkeller.com and www.prospera.com.

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