Question:

ne of my employees is returning from the war in Iraq. I have downsized my business considerably since she left to serve, and I don’t know if I have a position available for her. What are my obligations?

Answer:

With the return of soldiers from overseas, and the current state of the economy, many employers are facing your situation. The Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) protects soldiers wishing to return to the jobs they left, and provides the necessary guidelines to employers.

USERRA generally provides that a person absent from work due to service in the uniformed services is entitled to reemployment benefits if advance notice of service was given to the employer, the cumulative length of the absence does not exceed five years, and the person applies to return to work within a defined period of time. For example, someone who served more than 30 days but less than 181 days must notify the employer of an intent to return to work no later than 14 days after completion of the period of service. Someone who served for more than 180 days must submit an application for reemployment no later than 90 days after completing the period of service.

Terms of reemployment vary based on the amount of time served. The law states that individuals returning from duty must be placed in the position they would have held if their employment had not been interrupted, unless they are not qualified to perform the duties of that position after the employer makes reasonable efforts to qualify them, in which case they must be returned to the position they held when they left to serve. If an individual has served for more than 90 days, the same provisions apply except that the employer may place the individual in a position with like seniority and benefits.

Under USERRA, if the individual returning has a disability incurred during or aggravated by service and is not qualified to perform the position he or she would have held if employment had not been interrupted, the employer must try to reasonably accommodate the individual. If reasonable accommodation cannot be provided, the employer can reemploy the individual in any other position that is equivalent in seniority, status and pay, or a position that closely approximates those aspects of the position.

An employer is not required to reemploy the individual if circumstances have changed so much that reemployment is impossible or unreasonable, employing the person would impose an undue hardship, or the position the individual held was for a brief period and there was no reasonable expectation that it would continue. To show that reemployment is impossible or would cause undue hardship, an employer should have documentation of lay-offs, downsizing, and its financial condition.

In addition to USERRA, employers should note that California’s Fair Employment and Housing Act (FEHA) and the Americans with Disabilities Act (ADA) also apply to reemploying service members when they have suffered a disability and require employers to provide reasonable accommodations for veterans with service connected disabilities. You can review the full text of USERRA at
http://www.dol.gov/vets/programs/userra.
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