As of January 2007, more than 55,000 U.S. National Guard and Reserve military personnel have been deployed to Iraq and Afghanistan. Since September 11, 2001, more than 390,000 members of the National Guard and Reserves have been released from service. The U.S. Bureau of Labor Statistics has reported that approximately one in five veterans discharged from active duty between 2002 and 2005 have significant disabilities connected to their military service—a number that undoubtedly has increased since then.
While large companies may have whole teams devoted to tracking all the varieties of leave issues that arise in the workplace, not many owners of small or medium-sized businesses have such a luxury. It’s understandable that they ask themselves about their obligations to returning soldiers—especially those who are disabled: Am I legally obliged to re-employ veterans in the positions they held before to being called to active duty? What if doing so displaces another employee or results in hardship for my business? When these men and women return from war expecting to be re-employed, what possible obstacles might they face?
Most employers want to treat returning veterans fairly and therefore should be clear about the state and federal requirements in this regard. This is particularly important for small to midsized businesses, for whom the legal and business obligations can prove most challenging.
Anyone who has been absent from work due to "service in the uniformed services" is protected by the Uniformed Services Employment and Re-Employment Rights Act of 1994 (USERRA), the Americans With Disabilities Act and the Veterans Benefits Improvement Act, enacted by Congress in 2004. When the employee’s service is over, he or she must provide the employer with a notice of intent to return to work. Under most circumstances, the employer must re-employ the applicant within two weeks. In addition, the re-employed veteran must be provided job protection by the employer for a minimum of 180 days up to a maximum of one year.
If a veteran returns to work with any type of physical disability, such as the loss of arms or legs, employers will be required in a timely manner to provide the veteran with reasonable accommodations in the workplace. Some examples of reasonable accommodations would include, but are not limited to: modifying the workplace entrance and exit so it is accessible; providing new desks to accommodate the disabilities; modifying employee bathroom facilities; and acquiring or modifying equipment or other required work-related devices to accommodate the disabled veteran.
Other employer requirements could include modifying the work schedule to enable employees to still perform the "core" content of the job for which they are qualified. Employers must keep in mind that these requirements for reasonable accommodation also apply to company-sponsored training programs and social events.
If a veteran returns to work suffering from post-traumatic stress problems or any other form of psychological disabilities as a result of military service, employers will be required to possibly modify the employee’s work schedule and to make appropriate medical treatment possible. Perhaps reasonable accommodation will require some form of job retraining.
The employer must also keep in mind that even though reasonable accommodations must be made to allow the employee the schedule flexibility to see various health care providers, the confidentiality of these matters in the workplace cannot be overstated. These matters must be treated with the highest level of confidentiality. At every level, the returning veteran employee must be given the same benefits and privileges of employment as those given to all other employees.
We believe that an employer has a moral obligation to re-employ each and every employee who has been called to active duty upon their return, in the absence of an extreme hardship appropriate under the law. Congress embodied that moral obligation in USERRA.
Some employers may be unwilling to hire people who have any disabilities. They may assume that an applicant with a disability will not be able to fulfill the duties and responsibilities of a job. This view, if applied to our military veterans when they return from the Iraq and Afghanistan wars, is not only inconsistent with public policy and the law, it is also morally wrong.
Now is the time for all employers to show their heartfelt respect for those who have answered the call to serve their country in these difficult times. They must step up and address the needs of those who have already returned, as well as those who will return from duty, by providing employment and proactively addressing the impact upon their businesses.
When these men and women do eventually come home, they will face considerable struggles in their effort to resume life as it was before they were called to fulfill their commitment to their country. Their battle is far from over—but they should not have to fight it in the nation’s workplaces.