DODGING THE MINEFIELD OF USERRA DISABILITY REQUIREMENTS

With the wars in Iraq and Afghanistan winding down, and more and more wounded veterans of those conflicts returning to the workforce, employers would be well advised to familiarize themselves with their responsibilities to disabled veterans.  While most employers are familiar with the requirements of the Americans with Disabilities Act (ADA), you should also be aware of the similar, but sometimes more stringent, provisions of the Uniformed Services Employment and Reemployment Rights Act (USERRA).  Although both acts impose requirements on employers to accommodate those with disabilities, there are a few differences.

First, while the ADA only applies to employers with fifteen or more employees, USERRA applies to all employers, regardless of size.  USERRA, however, will only come into play in the disabled veteran context if you have a former employee who left for uniformed service and is now exercising his reemployment rights and has a disability that was incurred or aggravated during that service.

Moreover, although USERRA doesn’t adopt the ADA’s definition of “disability,” it also doesn’t define the term itself.  The Department of Labor, which enforces USERRA, has interpreted the term to mean “any injury or disease (to include psychological conditions) that would substantially interfere with an individual’s ability to perform the functions of his or her job.”  Therefore, a person may be disabled under USERRA even though he or she would not be disabled under the ADA.

Finally, what is probably the biggest difference between the ADA and USERRA is the employer’s responsibility to make reasonable efforts to assist a disabled veteran in qualifying for a job.  Both the ADA and USERRA require employers to make reasonable accommodations to an employee’s disability.  Under the ADA, that is the end of the employer’s responsibility.  If the employee is not qualified for the job, despite the employer’s reasonable accommodations, the employer is neither required to hire or keep the employee, nor to assist the employee in becoming qualified for the job. 

Under USERRA, however, a returning veteran (even one without a disability) must be placed in the position the veteran would have held if he or she had not left for military service.  Suppose, for example, that an employee left for a four-year active duty stint, and during that four years it was likely that the employee would have advanced to a different position.  When the employee returns, the employer is obligated to put the employee not in his or her previous position, but in the position he or she would have held absent the military service.  This is known as the “escalator” position.

Now, suppose that because of a disability incurred or aggravated during that service, the employee is not qualified for the escalator position.  You must not only offer reasonable accommodations to the employee’s disability, but you must also make reasonable efforts to assist the employee in becoming qualified for the position.  This might include providing assistive devices or training.

But what if, despite your reasonable accommodations and reasonable efforts, the disabled veteran is still not qualified for her escalator position?  In that case, the employer must place the employee in a position of “equivalent seniority, status, and pay” if the employee is qualified for that position, or can become qualified with reasonable efforts by the employer.  If the employee cannot become qualified for the equivalent position, then the employer is required to place the employee in a position that “most nearly approximates” the equivalent position.  This could be a higher or lower position, depending upon the circumstances.

As you can see, although employer obligations under USERRA are similar to those under the ADA, there are just enough differences that you might accidentally run afoul of USERRA’s more stringent requirements.  If you have veterans, disabled or not, returning to your workforce after military service and you have any questions about your rights or obligations, you should consult a legal professional before making a personnel decision that could land you in a legal minefield.

Mark Jeffries focuses his practice in the area of labor and employment law. He has represented employers in wrongful discharge and discrimination cases in state and federal court, as well as before the West Virginia Human Rights Commission and the U.S. Equal Opportunity Commission.
 
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