by Many employers are revamping their reasonable accommodation procedures to ensure compliance with recent changes in federal and state laws regarding accommodations based on pregnancy and religion. At the same time, they may want to include procedures to address the unique accommodation requirements under the Uniformed Services Employment and Reemployment Rights Act (USERRA).
Human resources professionals readily recognize USERRA as the federal law prohibiting employers from discriminating against employees or applicants because of their military status or obligations. Companies often encounter USERRA compliance in applying its reemployment rights of individuals who leave their civilian jobs to serve in the military. Employers are less familiar with how USERRA can require them to go further than is required under the Americans with Disabilities Act (ADA) in assisting a veteran with disabilities return to work.
Under USERRA, an employer must make reasonable efforts to accommodate the needs of returning veterans with disabilities incurred or aggravated during military service. This obligation goes beyond what is required under the ADA. First, the definition of disability covered under USERRA may be more inclusive than the definition of disability covered by the ADA. A disability covered by USERRA does not need to meet the ADA requirement of substantially limiting one or more major life activities.
Second, an accommodation under the USERRA may be more expansive than an accommodation required under the ADA. The employer must return the service member to the position they would have had if they had not left the job for military service. Service members are entitled to reemployment not just in their original job but in the position they would have obtained with reasonable certainty if not for the absence due to military service. Known as the escalator job, the position may be a progressive position or promotion that an employee would have been expected to achieve if they had been continually employed. Suppose the service member is not qualified to perform the escalator position due to a disability that was incurred during military service. In that case, the employer must make reasonable efforts to accommodate the obstacles created by the disability so that the employee may become qualified to perform a job with equivalent seniority and pay of the escalator position.
Other differences between USERRA and the ADA include:
- No state or federal agency complaint is required before filing a lawsuit under USERRA.
- USERRA has no statute of limitations and prohibits courts from applying a state statutory limitations period.
For more information on USERRA rights, including escalator positions, reasonable accommodation obligations and more, see https://www.dol.gov/agencies/vets/programs/userra/USERRA-Pocket-Guide#ch15.
