Has any employee in your waste services company been called to leave his or her job for combat duty in Iraq or Afghanistan?

Nearly 20,000 service members have been physically injured in combat operations and more than 10,000 have suffered serious non-combat injuries and illnesses, according to Defense Department reports. In addition, nearly a third of all returning veterans show some type of mental disorder, including post-traumatic stress and depression, according to the New England Journal of Medicine.

Employers beware! If you think your obligations under the Americans with Disabilities Act (ADA) to accommodate disabled workers are demanding, get ready for the possibility that you'll need to provide even greater protection for injured and impaired veterans who rejoin your workforce.

Under the Uniformed Services Employment and Reemployment Rights Act (USERRA), both public and private employers are required to guarantee re-employment to individuals who have served in the uniformed services — no matter how limited their ability to perform — if the limitations are due to a service-related injury or illness.

USERRA requires employers to re-employ returning veterans in the same or nearly the same position they would have had if they hadn't left for military duty. Late last year, the U.S. Department of Labor, which enforces USERRA, issued rules purporting to clarify what the act requires. In practice, the rules resemble employer obligations under ADA, but go much further.

For starters, an employer needs to accommodate an ADA claimant only if the worker can show that he or she has a “disability,” as defined by ADA. By contrast, an impaired returning veteran is entitled to re-employment with reasonable accommodations no matter how severe or long-lasting the impairment and no matter whether the employee's disability would be recognized under ADA. For example, while ADA does not protect individuals with temporary conditions, USERRA covers veterans whose service-connected disability is not permanent.

If, despite the accommodation, the veteran is still unable to perform the essential functions of the job for which he or she is otherwise entitled under USERRA, an employer must provide an “equivalent position” measured by “seniority, status and pay, the duties of which the person is qualified to perform.” Where an impairment or disability prevents the veteran from performing an equivalent position, an employer must find or create a position that is the “nearest approximation” to the equivalent position in seniority, status and pay.

Significantly, employers must go beyond accommodations they make for ADA claimants. Case in point: ADA does not force an employer to displace another worker to accommodate a disabled person, but USERRA prevents an employer from “refus[ing] to re-employ a returning service member [because] someone else was hired to fill [his] position during his absence, even if … reemployment might require the termination of the replacement employee.”

Although the injuries may have occurred in Iraq and Afghanistan, employers must understand that domestic civilian workplaces have been made part of the healing process.
— Barry Shanoff
Legal Editor
Rockville, Md.