Did you know?
The Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) contains much broader disability provisions than the Americans with Disabilities Act (ADA). First, USERRA applies to virtually ALL employers, regardless of size. Therefore, when reemploying a servicemember the employer should be aware that reasonable accommodations may be necessary even though it may be exempt from providing accommodations under the ADA.
Second, under USERRA even if the employee is unable to perform the essential functions of the reemployment position (the “escalator” position) after reasonable accommodation, the employer will be required to consider reemploying the servicemember in an alternative position, even if that position is already filled by another employee.
Third, the regulations specifically provide that if the disability is temporary the employer may be required to place the employee/servicemember on a light-duty status if he/she is unable to perform the essential functions of the job.
Finally, if the reemployed servicemember is later determined to be unable to perform the essential functions of the job due to a disability (such as PTSD/PTSI discovered after reemployment) the employer may be prohibited from terminating the servicemember, even if it believes the termination would be “for cause”. Instead, there is authority that the employer must start the reemployment process over again in light of the disability. This situation may arise when a servicemember’s PTSD/PTSI disability manifests itself after reemployment, and the employer is unaware of its obligations to accommodate this disability.
When dealing with possible service-related disabilities, employers should be careful in how they reemploy the returning servicemember. The Department of Labor has explicitly refused to adopt many of the definitions, procedures and other regulations under the ADA. Given the increasing prevalence of returning servicemembers with PTSD/PTSI or TBI issues, employers should seek guidance when dealing with such issues.
Mathew M. Meyer, Esq., Cornell Law ’95, is a business law, regulation, and commercial litigation attorney in the Twin Cities area. A Marine Veteran, Mr. Meyer is a long-time volunteer and mediator with the Department of Defense ESGR program. He is the Minnesota ESGR Assistant Ombudsman Director and Military Liaison to local Marine and Navy Reserve units, and frequently advises servicemembers and employers regarding USERRA legal issues. All opinions, comments, and analysis are his alone, and do not reflect those of the Department of Defense ESGR program, or any other organization.