On Veterans Day we self-reflect on the sacrifices of those who served our country, and express our appreciation to them. Veterans Day is also an opportunity for employers to self-reflect on their own policies and practices for military veterans. In honor of this holiday we will remind employers of some of their fundamental obligations to military veterans.
- Employers should always be aware of their obligations under the Uniformed Services Employment and Reemployment Act (“USERRA”), which both protects the job rights of individuals who “voluntarily or involuntarily leave employment positions to undertake military service of certain types of service in the National Disaster Medical System” and “prohibits employers from discriminating against past and present members of the uniformed services, and applicants to the uniformed services.” This legislation covers ALL employers, and gives employees a nearly absolute right to take a leave of absence for military service. Upon returning from USERRA leave, employees are entitled to job restoration under a complicated reemployment scheme called the “escalator principle.” Under this principle, “each returning service member [must] be reemployed in the position the person would have occupied with reasonable certainty if the person had remained continuously employed, with full seniority.”
- The Family and Medical Leave Act (“FMLA”), another federal statute, contains Military Family leave provisions that were added to the FMLA in 2008. These provisions cover “Qualifying Exigency Leave,” which cover “any qualifying exigency…arising out of the fact that the spouse, or a son, daughter, or parent of the employee is on active duty (or has been notified of an impending call or order to active duty) in the Armed Forces in support of a contingency operation,” and “Military Caregiver Leave,” which permits up to 26 workweeks of unpaid leave during a single 12-month period to care for an injured or seriously ill servicemember of veteran.
- In addition to USERRA and the FMLA, which are federal statutes, a number of states, such as California and Illinois, have laws protecting employees who are or were members of the armed forces. Aside from knowing and abiding by the applicable state law, it may be advisable for employers to address their military leave obligations in the employee handbook.
- Veterans suffering from a disability will likely be protected under the Americans with Disabilities Act (“ADA”), especially related to PTSD. According to the EEOC, “it is illegal for an employer to refuse to hire a veteran because[he or she] has PTSD, because [he or she] was previously diagnosed with PTSD, or because the employer assumes [he or she] has PTSD.” Employers are also limited under the ADA in the type of medical information they can obtain in regard to veteran disabilities. Finally, absent undue hardship, disabled military veteran applicants and employees are entitled to “reasonable accommodation to apply for jobs, to perform their jobs, and to enjoy equal benefits and privileges of employment.”
So with heartfelt gratitude we thank all who have served in any and all lines of duty for our country and wish everyone a safe and happy Veterans’ Day.
If you have any questions regarding USERRA or an employer’s obligations to members of the armed forces please contact the authors or your Seyfarth attorney.