mployers are facing the largest re-employment of "citizen soldiers" in our nation’s
history. Companies must prepare now to address the impact of returning military
employees on the business organization, especially on the owners of small and medium-sized
businesses, for whom employees’ extended tours of duty abroad have been unanticipated.
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.
Workforce Management Online, October 2007 -- Register Now!
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