Employer face new obligations to disabled veterans

By Elizabeth Semler

The Daily Record Newswire

According to the Equal Employment Opportunity Commission, 25 percent of new veterans report possessing a service-connected disability. While not all service-connected disabilities qualify as disabilities under the Americans with Disabilities Act, the ADA Amendments Act of 2008 expanded the definition of disability to encompass a broad range of conditions, many that may afflict veterans.

For example, the term "major life activities" now includes the operation of major bodily functions such as the brain and neurological system, so traumatic brain injuries and post-traumatic stress disorder (PTSD) likely qualify as disabilities under the ADA.

The ADA prohibits employers with 15 or more employees from discriminating against an applicant or employee in any aspect of employment because the employee has a disability, a history of having a disability, or because the employer perceives the employee as having a disability.

One practical application of the ADA in regard to veterans is that it is illegal for an employer to refuse to hire a veteran (or service member) because the veteran has PTSD or was previously diagnosed with PTSD, or because the employer assumes the veteran has PTSD.

Once hired, a veteran with a service-connected disability that constitutes a disability under the ADA is entitled to reasonable accommodation just like any other disabled employee. The ADA, however, requires that the veteran be otherwise qualified to do the job.

In contrast, the Uniformed Services Employment and Reemployment Rights Act places a higher standard for reasonable accommodation on employers.

USERRA prohibits employers with one or more employees from discriminating against applicants and employees on the basis of their military status or military obligations. Upon service members' return, USERRA generally entitles them to be re-employed in the job that they would have attained had they not been absent for military service (the "escalator" principle).

Under USERRA, if the returning service member has a service-connected disability, an employer must make reasonable efforts to accommodate the disability so the employee can perform the escalator position (the one the person would have held if the person had remained continuously employed).

Further, unlike the ADA, if the employee is not qualified for the escalator position because of the disability (even with reasonable accommodation efforts), the employer still must re-employ the employee in a position of equivalent seniority, status and pay, so long as the employee is qualified to perform the duties of the position, or could become qualified to perform them with reasonable efforts by the employer.

Put another way, USERRA obligates employers to assist returning service members to become qualified for a job, which could include training or re-training (regardless of whether the service member is disabled or simply unqualified to perform the equivalent position).

Finally, an employee who does not become qualified for the escalator position or an equivalent position must be re-employed in a position that, consistent with the circumstances of that person's case, most nearly approximates the equivalent position in terms of seniority, status and pay. Thus, USERRA expands employer obligations to accommodate service members and veterans with service-connected disabilities.

USERRA also has an impact on an employee's right to medical leave under the Family Medical Leave Act and Oregon Family Leave Act.

Typically, to be eligible to take medical leave, an employee must have worked for an employer for at least 12 months, and for at least 1,250 hours during the 12-month period preceding the start of the leave.

The Department of Labor and the Bureau of Labor and Industries have taken the position that employers are required to give a returning service member credit for time they would have been working, but for their military service. Thus, employers must count periods of military service toward the months-of-employment eligibility requirement for FMLA/OFLA leave.

Employers' obligations to employees in the military or returning from service, with or without service-connected disabilities, are complex. However, as the number of troops deployed overseas continues to decrease, and veterans and service members return to work, employers need to be prepared to re-employ, hire and accommodate these individuals.

Finally, employers need to recognize that veterans/service members are a "protected class" under USERRA and ORS 659A.082, and cannot be discriminated against on the basis of their military status or military obligations.


Elizabeth Semler is a member of Sussman Shank's business litigation group and chairwoman of its employment law group. Contact her at 503-227-1111 or lizs@sussmanshank.com.

Published: Fri, Jun 15, 2012