As the United States’ various engagements in the Middle East wind down, military service members are returning home in growing numbers. According to the Equal Employment Opportunity Commission (EEOC), three million veterans have returned from military service over the past ten years, and another million are expected to return to civilian life over the next five years. Many of these returning service members will be joining, or re-joining, the civilian workforce.
An array of federal laws exist that protect veterans’ rights to employment and reemployment. Below is a brief summary of the key laws and regulations that employers should keep in mind.
- The Uniformed Services Employment and Reemployment Rights Act (USERRA) USERRA applies to all veterans, and to all employers, regardless of size. It prohibits employers from discriminating against job applicants or employees on the basis of their military status or military obligations. It also protects the reemployment rights of employees who leave their civilian jobs to serve in the armed forces, including service with the National Guard or Reserves. This means that in most cases, employers must restore a returning veteran to his or her former job when possible, including restoration of seniority, benefits, and pay.
Under USERRA, employers must make "reasonable efforts" to help veterans returning to employment become qualified to perform the duties of their job position. This may include providing training or retraining for the returning service member.
Additionally, USERRA provides service personnel with the right to continued health insurance coverage for up to two years while they serve in the military. If an employee’s military service lasts fewer than 31 days, then his or her health care coverage must be provided as if the employee never left the workplace.
- The Americans with Disabilities Act (ADA) The ADA prohibits discrimination against a job applicant or employee because he or she has a disability, has a history of having a disability, or because the employer regards the individual as having a disability. Practically speaking, in the context of hiring veterans, that means an employer cannot to refuse to hire a veteran simply because he or she has Post-Traumatic Stress Disorder (PTSD), was previously diagnosed with PTSD, or because the employer presumes the veteran has PTSD. Additionally, the ADA limits the medical information that employers are permitted to obtain about an applicant or employee, and prohibits disability-based harassment and retaliation.
In order to comply with the ADA, covered employers (those with 15 or more employees) must provide disabled veterans with “reasonable accommodations” that enable those individuals to perform their job duties, and to enjoy equal access to the benefits and privileges of employment. This may involve, for example, providing a different kind of desk or computer equipment to an employee in a wheelchair, or ensuring that an employee is physically able access employer-sponsored training or social events. Employers are also required to provide reasonable accommodations for disabled veterans who are applying for jobs.
Providing reasonable accommodations for disabled veterans is mandatory, unless providing a given accommodation would cause an undue hardship for the employer.
On February 28, 2012, the EEOC released two new publications related to disabled veterans in the workplace. The new publications, which are available on the EEOC’s website, are designed to reflect changes in the law brought about by the ADA Amendments Act of 2008, including new protections for veterans with PTSD or traumatic brain injury (TBI). One of the publications is a guide for employers that explains how legal protections for veterans with disabilities differ under USERRA and the ADA. The guide also discusses how employers can prevent disability discrimination and provide appropriate accommodations for disabled veterans in the workplace.
- The Family Medical Leave Act (FMLA) The FMLA covers employers with 50 or more employees. It explicitly provides for two types of military-related leave for employees: military caregiver leave, and qualifying exigency leave.
Under the military caregiver provisions of the FMLA, employers must provide employees with up to 26 weeks of unpaid leave during a single 12-month period to care for a spouse, child, or parent of a military service member (including members of the National Guard and Reserves) who has a serious illness or injury caused while the service member was working in the line of duty. This provision also applies to employees who are next of kin to an injured or ill service member. Eligible employees must be allowed to take military caregiver leave for up to 5 years after the covered service member leaves the military.
Under the qualifying exigency leave provisions of the FMLA, employees have the right to take up to 12 weeks of unpaid leave in a 12-month period if a child, parent, or spouse of the employee is on active duty with the National Guard or Reserves, or has been called to such active duty, in a foreign country in support of a “contingency operation.” Qualifying exigencies include short notice deployment; certain military events and related activities; certain childcare activities related to the service member’s active duty or call to active duty; making or updating certain financial and legal arrangements related to a service members absence; attending certain types of counseling; spending time (up to 5 days) with a service member who is on short-term rest and recuperation leave during deployment; attending certain post-deployment activities; and any other event that the employer and employee agree is a qualifying contingency.
Covered employers are required to provide employees with military- related leave pursuant to the FMLA, and are prohibited from restraining or denying the exercise of these rights by employees. Employers also are prohibited from discharging or discriminating against any individual for exercising their rights under the FMLA, or because of their involvement in any proceeding related to the FMLA.
- Vietnam Era Veterans’ Readjustment Assistance Act (VEVRAA) VEVRAA requires businesses with 50 or more employees and a federal contract or subcontract of $100,000 or more to take affirmative action to employ and advance qualified veterans. Federal contracts or subcontracts of $25,000 or more are also covered by the law if those contracts were entered into before December 1, 2003. As a part of this affirmative action requirement, covered businesses are required to list their employment openings with the appropriate Employment Service office as established under the Wagner-Peyser Act.
In addition to complying with VEVRAA’s affirmative action requirements, the Act also prohibits covered federal contractors and subcontractors from discriminating against veterans.
Under VEVRAA, there are several categories of veterans who qualify for the law’s protections. First, it covers veterans who served on active duty in the armed forces for more than 180 days between August 5, 1964 and May 7, 1975, as well as veterans who served in the Republic of Vietnam between February 28, 1961 and May 7, 1975. Second, it covers veterans who are entitled to compensation under laws administered by the Department of Veterans Affairs for a disability rated at 30 percent or more, service members who were discharged or released from active duty because of a service–connected disability, and veterans who served on active duty in the U.S. armed forces and are entitled to disability compensation. Third, VEVRAA covers any other veteran who served on active duty in the U.S. armed forces during a war, or in a campaign or expedition for which a campaign badge has been authorized.
Covered employers are required annually to submit a form to the government that reports, among other things, the number of current employees who are veterans covered by the Act
With so many veterans returning to work, it is likely that an increased number of veteran-related claims will be filed with the EEOC over the next few years. We can also expect that the EEOC might step up its focus on discrimination against veterans under the ADA, and that the Department of Labor might focus its attention on violations of USERRA and the FMLA’s military leave provisions.
Additionally, some members of Congress are proposing new legislation designed to further protect the rights of veterans in the workforce. Take, for example, the Disabled Veterans Employment Protection Act (H.R. 3524). Introduced in the House of Representatives in November 2011 by Iowa Democrat Bruce Bailey, this proposed law would amend USERAA to provide even more expansive reemployment rights to disabled veterans returning to the workplace.
Employers need to be prepared for the coming influx of returning veterans. Part of this preparation should include making sure they understand the nuances of the laws and regulations that apply when veterans apply for employment or request reemployment.