When the wars in Iraq and Afghanistan began, employers faced many issues with employees departing for military service. Now that soldiers are returning in greater numbers and coming back to their jobs, are you keeping in mind all of the requirements under federal law, including USERRA and the FMLA – and even the ADA?
Suppose your employee returns from deployment and requests her former job back. But you’ve hired someone to fill the job for the substantial time she’s been away. The replacement is really good at the job – better, in fact, than the person who left. What can you do? Well, you cannot just deny the job to the returning military member. The employee who left for military service is entitled to her job back under USERRA – period. If you can’t afford to employ both of them (maybe you could move the replacement into a different position, or give the deployed employee a promotion), then you have to let the replacement go. Small business owners, this means you too. USERRA applies to every employer, no matter how small.
How about an employee who has a spouse who was injured in Afghanistan? You don’t have to worry about him, right? Well, that depends. If your employee needs to take time off to care for her spouse, she may be entitled to up to 26 weeks off under the FMLA to do so – more than double the 12 weeks provided by the FMLA in most other situations. You don’t have to pay her while she is not working, but you have to let her take the leave, and she has a right to reinstatement when the leave is done. The FMLA has many traps for the unwary.
Imagine your employee comes home from Iraq. He’s not injured – whew! You give him his job back following the “escalator” principle required under USERRA: the job he would have had or moved into if he had been working the whole time. But right after he starts back he asks for time off to attend a military ceremony related to his deployment. It happens to be on the busiest day of the year for your company. Is this reasonable? Maybe not, but you probably have to let him go. This likely falls under the FMLA’s qualified exigency leave, which also includes many other situations related to military service.
Finally consider the situation of a computer data entry employee back from Afghanistan. She lost a hand saving another soldier from a grenade. She’s back, and she’s taken the medical leave she needed under the FMLA. She just called, and notified you that she’s ready to come back to work. You wonder how she’s going to be able to do her job, which requires lots of typing and data entry. This is the perfect storm of USERRA, FMLA, and ADA issues. Luckily, you’ve done right so far by providing FMLA leave. USERRA requires that you give this employee her job back. The ADA also requires that you engage in the interactive process so that you can determine how and if you can accommodate her disability so that she can perform the essential functions of her job.
These are only some obvious, hypothetical examples of the issues presented by soldiers returning to the workforce. Since these returns aren’t routine, taking time and acting with care (and knowing the law) will help you handle this situation properly. It is in everyone’s best interest – the employer, the employee and the entire community.