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Nearly 2 million service members have been deployed to Iraq and Afghanistan, and many are military reservists� citizen soldiers called to leave their civilian jobs to serve extended tours of combat duty. The heavy price these service members have paid for their country too often has included physical and/or mental injury. According to Department of Defense statistics, almost 20,000 service members have been physically injured during recent combat operations, and more than 12,000 more have suffered serious noncombat injuries and illnesses. In addition, the New England Journal of Medicine reports that about 30% of all veterans returning from Iraq and Afghanistan have suffered from at least one type of mental health problem, including depression, anxiety and/or post-traumatic stress disorder. As these injured and sometimes disabled veterans return to civilian life, their employers are confronted with a host of new legal challenges. While most employers are familiar with their obligations under the Americans With Disabilities Act (ADA), 42 U.S.C. 1201, the federal law generally prohibiting employment discrimination on the basis of disability, many employers are unaware that even greater protections may be available to impaired or disabled veterans under the Uniformed Services Employment and Re-employment Rights Act (USERRA), 38 U.S.C. 4301 et seq. USERRA is a federal law that applies to all public and private employers and that has as its purpose the protection of employees who leave their civilian jobs to serve in the uniformed services, including specifically their right to re-employment regardless of new limitations on their ability to work caused by service-connected injuries or illnesses. With few exceptions, USERRA requires employers to re-employ returning service members in the same or similar position they would have attained but for their absence for military service. On Dec. 19, 2005, in response to what has been the largest reserve activation since World War II, the U.S. Department of Labor (DOL), the federal agency with responsibility for enforcement of USERRA, published new regulations intended to clarify the act’s requirements, including those applicable to veterans who have suffered injuries or been otherwise impaired during a period of military service. While in many respects the protections afforded to injured or ill veterans under USERRA mirror those provided by the more familiar ADA, USERRA also goes well beyond the ADA. As an initial matter, unlike individuals asserting rights under the ADA, a returning veteran who is physically or mentally impaired need not establish that he or she has a “disability” as that term is defined under the ADA in order to be entitled to accommodation of his or her condition. Employers must make reasonable accommodations to re-employ a veteran whose physical or mental impairment affects his or her ability to return to work regardless of the severity or anticipated duration of the impairment. See Preamble to Final Rule, USERRA, 70 Fed. Reg. 75246, 75277 (Dec. 19, 2005). Reasonable accommodations USERRA requires an employer to make “reasonable efforts” to accommodate a veteran’s impairment even if it is not an ADA-recognized disability so that the veteran can perform the position he or she is otherwise entitled to under USERRA’s general re-employment provisions. If the veteran is unable to perform the essential functions of the job despite reasonable accommodations, USERRA requires that the veteran be re-employed in an “equivalent position” in terms of “seniority, status, and pay, the duties of which the person is qualified to perform or would become qualified to perform with reasonable efforts by the employer.” 38 U.S.C. 4313(a)(3)(A). Further, if the veteran cannot become qualified to perform even an equivalent position, he or she must be re-employed in a position that, consistent with the circumstances of the veteran’s case, is the “nearest approximation” to the equivalent position in terms of seniority, status and pay. Id. � 4313(a)(4). Significantly, in its recently published USERRA regulations, DOL emphasized that the “nearest approximation” may be a “higher or lower position, depending on the circumstances.” 20 C.F.R. 1002.225. An employer’s “reasonable efforts” are defined as actions “that do not place an undue hardship on the employer.” 38 U.S.C. 4303(9); 20 C.F.R. 1002.5(i). Here, USERRA is consistent with the ADA and defines “undue hardship” to mean an action requiring significant difficulty or expense, when considered in light of the overall financial resources of the employer, the size of the employer in terms of employees and facilities, the nature of the employer’s business operations and other factors. 38 U.S.C. 4303(15); 20 C.F.R. 1002.5(n). The burden is on the employer to show that an accommodation would impose an undue hardship. Reasonable accommodations that may be required to help a veteran qualify for a position include those identified as reasonable accommodations in the context of the ADA, such as modifying technology or equipment used in the job or removing nonessential job functions. In assessing their responsibility to make accommodations for a returning veteran who has suffered an injury or illness, however, employers must go beyond the usual ADA analysis. To illustrate, under the ADA, an employer is not required to displace another worker to accommodate a disabled individual, but, under USERRA, a disabled returning veteran may be entitled to “bump” another employee from his position if it is the only appropriate job for which the returning veteran can qualify. The DOL’s recently published USERRA regulations expressly provide that an employer “may not refuse to reemploy 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.” 20 C.F.R. 1002.139(a). Moreover, a number of courts interpreting USERRA and its predecessor statute have concluded that certain hardships fall within contemplation of the act, including the possibility that re-employment of the veteran may compromise the rights of other employees, displace other employees or even result in their termination. See, e.g., Nichols v. Dep’t. Veteran Affairs, 11 F.3d 160, 163 (Fed. Cir. 1993); Hembree v. Georgia Power Co., No. 77-1775A, 1979 U.S. Dist. Lexis 8187, at 11-12 (N.D. Ga. Dec. 4, 1979), aff’d, 637 F.2d 423 (11th Cir. 1981). These courts place the burden on employers to “tailor their workforces to accommodate returning veterans’ statutory rights to re-employment.” Nichols, 11 F.3d at 163. Collective bargaining Moreover, and dissimilar from the approach taken by courts under the ADA, even a collective bargaining agreement will not limit a disabled veteran’s re-employment rights. In Armstrong v. Baker, 394 F. Supp. 1380 (N.D. W.Va. 1975), a case decided under the Military Selective Service Act (MSSA), USERRA’s predecessor statute, the court considered whether the plaintiff, a disabled veteran whose injuries precluded re-employment in his prior job as a railroad brakeman, was entitled to a clerical position for which he was qualified. The railroad objected that placing him in the job would necessitate laying off an employee with greater seniority and would violate the collective bargaining agreement between the railroad and the employees’ union. Citing the “plain meaning” of the re-employment scheme for disabled veterans under MSSA, a scheme subsequently adopted by USERRA, the court held that re-employment was required, regardless of the consequences. The court noted that the veteran was suing “not simply as an employee under a collective bargaining agreement, but as a veteran asserting special rights bestowed upon him in furtherance of a Federal policy to protect those who serve in the Armed Forces.” Id. at 1387. These “special rights” could not be “overshadowed or defeated by reference to the artificial and inflexible [collective bargaining agreement].” Id. In another significant departure from the ADA, which excludes from protection individuals suffering only temporary conditions, USERRA’s special protections for disabled veterans apply even if the service-connected disability is not permanent. In its preamble to the new USERRA regulations, DOL states that a veteran with a temporary disability “may be entitled to interim re-employment in an alternate position [if] qualified for the position and the disability will not affect his or her ability to perform the job.” Preamble, 70 Fed. Reg. at 75277. The regulations also recite that, “[i]f no alternate position exists, the [employee is] entitled to reinstatement under a ‘sick leave’ or ‘light duty’ status until he recovers.” Id. Although the regulations provide no guidance on how long an employee may be placed in such status, presumably the employee is entitled to remain on light duty for a reasonable period if his condition is anticipated to improve to a point that will allow him later to be placed in an appropriate, permanent position. Veterans must be qualified In view of these requirements, USERRA’s focus on the ability of a veteran to be qualified for a position becomes particularly important. USERRA does not require an employer to reinstate a returning veteran who, after reasonable efforts by the employer, cannot become qualified to perform any appropriate job in the work place. See 20 C.F.R. 1002.226. USERRA defines “qualified” as “having the ability to perform the essential tasks of the position.” 38 U.S.C. 4303(9); 20 C.F.R. 1002.5(h) & 1002.198. The new USERRA regulations effectively adopt the ADA’s approach to determining whether a task is an essential function, an analysis that requires consideration of a variety of factors, including, but not limited to, the employer’s judgment as to which functions are essential, pre-existing written job descriptions, the amount of time on the job spent performing the function, the consequences of not requiring the individual to perform the function, the terms of a collective bargaining agreement, the work experience of past incumbents in the job and the current work experience of incumbents in similar jobs. See 29 C.F.R. 1630.2(n) (ADA); 20 C.F.R. 1002.198 (USERRA). Ultimately, the essential tasks must be the fundamental job duties of the position. See Preamble, 70 Fed. Reg. at 75274. An employer may not decline to rehire a veteran simply because he or she cannot perform an enumerated, but marginal, function of the position. Id. USERRA also exceeds the requirements of the ADA by imposing a time limit within which an employer must resolve issues attendant to an employee’s physical or mental restrictions. While the ADA does not establish a deadline for accommodating a disabled person, USERRA provides that, when a disabled veteran seeks re-employment, the employer must act “promptly” to re-employ the veteran in an appropriate position. 38 U.S.C. 4313(a); 20 C.F.R. 1002.181. The new USERRA regulations define “prompt” as “as soon as practicable under the circumstances.” 20 C.F.R. 1002.181. More particularly, the regulations provide that, absent unusual circumstances, a veteran must be re-employed within two weeks of submitting an application for re-employment. Id. There may be no particular challenge to promptly re-employing the nondisabled service member, but re-employing a disabled veteran may be a more complicated process. A proper re-employment determination may require an assessment of medical records and further physical or mental examination of the veteran. Further, if the veteran cannot qualify for the position to which he or she is otherwise entitled, the employer must identify the “nearest approximation” to that position and ascertain whether the veteran’s limitations are consistent with the essential functions of the alternate position. Finally, if the veteran will displace another employee, the employer will need to reassign or give notice of termination to that employee. The regulations recognize that some situations may require more time, but it is unclear how much delay associated with the effort to accommodate a disabled veteran will be tolerated, and equally unclear whether the veteran is entitled to back pay and benefits during the period in which the employer struggles to meet its USERRA obligations. If light duty consistent with the veteran’s limitations is available in the interim, it should be considered as an option to meet the prompt re-employment obligation while the employer searches for the most appropriate accommodation. Another noteworthy consideration for employers is the interplay between USERRA and the Family Medical Leave Act (FMLA), 29 U.S.C. 2601, et seq. In most circumstances, a disabled veteran will be eligible for up to 12 weeks of family medical leave if his or her condition constitutes a “serious health condition” as defined by the FMLA, notwithstanding the probability that the veteran has been absent from the workplace for an extended period. Ordinarily, the FMLA requires an employee to have worked for the employer at least 12 months and at least 1,250 hours during the 12-month period prior to the start of an FMLA leave in order to qualify for it. Id. � 2611(2)(A). In 2002, DOL modified this general requirement for returning veterans when it published an opinion memorandum concluding that time spent away from work to perform military service must be counted in meeting both the 12-month and the 1,250-hour thresholds. See Protection of Uniformed Service Members’ Rights to Family and Medical Leave, Op. Solicitor of Labor (July 22, 2002). For more than 60 years, the courts have liberally construed USERRA and its predecessor statutes to benefit those who leave private life to serve their country in the uniformed services. As military reservists return to civilian life burdened with physical and mental impairments in increasing numbers, it is critical for employers to understand their unique obligations owed to these veterans. It is especially important that they recognize that, although there are many similarities between USERRA and the ADA, USERRA is more far reaching and provides a number of protections to injured or disabled veterans that would not be available to an employee with an identical impairment or disability who had not recently returned from military service. Lisa H. Cassilly represents management in the area of employment law as a partner at Atlanta’s Alston & Bird. Matthew J. Gilligan, an associate at the firm, and a lieutenant colonel and judge advocate in the U.S. Army Reserves, also practices employment law.

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