Employers’ Obligations Under USERRA

USERRA was enacted in 1994 to protect service members from being disadvantaged in their civilian careers due to serving in the uniformed services.  USERRA covers virtually every individual in the country who serves in or has served in the uniformed services.  Unlike many employment laws, USERRA applies to all employers in the public and private sectors, including federal employers, regardless of size.  It requires an employer to grant unpaid leaves of absence for employees called into military service.  Employees may elect to use accrued vacation pay, annual leave or other accrued paid leave during military leave, but an employer may not require them to use it during that time.  Upon returning from military service, USERRA grants eligble employees the right to reemployment.  USERRA provides protection for veterans with disabilities requiring employers to make reasonable efforts to acommodate the disability.

The rights provided under USERRA include:

• Non-discrimination based on military status;
• Reinstatement rights to the position and pay that the employee would have held had the employee remained continuously employed;
• Continuation of medical benefits for service under 30 days;
• Optional continuation of medical benefits;
• All seniority, rights and benefits upon return to work as if the employee had remained continuously employed; and
• Protection from discharge upon return to work, except for cause, for a period of time.

Exceptions under limited circumstances:

• Changed circumstances such as an intervening reduction in force that would have included the absent employee;
• The individual is no longer qualified, despite the employer’s reasonable efforts to qualify the employee; or 
• The employee was employed for a brief, non-recurrent period.

USERRA Enforcement

While individuals may file private lawsuits against employers under USERRA, they also may file a complaint with the U.S. Department of Labor (DOL).  If the DOL believes a complaint has merit, it tries to resolve the complaint with the employer voluntarily. If efforts toward a voluntary resolution fail, the DOL refers the complaint to the U.S. Department of Justice (DOJ).  If the DOJ is satisfied that the claimant is entitled to the rights or benefits being sought, it has authority under USERRA to appear on behalf of a claimant in a suit filed in federal district court.

The DOJ’s Civil Rights Division has given high priority to the enforcement of service members’ rights under USERRA.  This is evident in the number of lawsuits DOJ has filed in 2009.  As of July 2009, the DOJ has filed 18 lawsuits and obtained 18 settlements under USERRA on behalf of service members.  The number of lawsuits filed is up signficantly from 2007 and 2008, when seven and eleven lawsuits were filed, respectively.

The types of lawsuits brought in 2009 range from an employer’s failure to promptly re-employ service members who suffered injuries to an employer’s failure to afford the service member an opportunity for advancement.  In March 2009, a judge entered a $1.3 million judgment against an employer after a jury found the employer liable for constructively firing a reservist called to active duty after the 9/11 attacks. 

In light of the government’s increased focus on compliance with USERRA, employers who have employees entering or returning from service should make sure their policies and procedures incorporate the requirements of USERRA into them.  Employers should also ensure that they are also complying with additional state laws that may apply.   

USERRA Resources:

U.S. Department of Labor website
U.S. Department of Justice website
Equal Employment Opportunity Commission (EEOC) website

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In a survey conducted by SHRM from April 29 through May 5, 2009, 462 randomly selected HR professionals from SHRM’s membership, were asked, “What, if anything, is your organization doing or planning to do to reduce the spread of the H1N1 virus in the workplace?” Here are some of the top strategies:

• Monitoring the H1N1 virus situation by following the guidance from the Centers for Disease Control and Prevention (CDC), the World Health Organization (WHO), etc. = 70%
• Educating employees on flu prevention measures = 63%
• Developed an employee communication strategy related to the H1N1 virus  = 57%
• Making hand sanitizer, other disinfectants, masks and other flu prevention tools readily available across the organization = 54%
• Frequently disinfecting common areas in the office = 52%

With the possibility of a significant portion of the workforce being absent due to illness or caring for ill family members, it is important that employers be able to take care of their employees while continuing business operations.  Twenty-four percent of the respondents in the SHRM poll stated that they were planning on setting up telecommuting options for employees if there is an H1N1 outbreak in their local area/region.

Employers must balance their obligation to maintain a safe workplace with other legal obligations.  Employers must take into consideration that many employees will be eligible for FMLA leave, other contractually based leave rights, and protection under federal and state disability and benefit protections.  Whistleblower protections under benefit laws, safety regulations, and discrimination laws may be raised.

Additionally, swine flu may be compensable under state workers’ compensation laws if the employee’s job exposes him or her to a greater risk of contracting the condition than the risk to which the general public is exposed, and the employee’s job duties caused him or her to contract the condition. If an employee with swine flu believes that it is work-related, employers should have the employee fill out an accident report, the employer should promptly submit the information to its workers’ compensation carrier for further investigation. 

In order to avoid company liability during an H1N1 outbreak, managers on the front line will especially need the education and support of the executive team and human resources personnel to handle a much wider range of employment law issues.

As an employer, waiting until an H1N1 crisis occurs is waiting too long.  By waiting, an employer will miss the opportunity to take proactive preventative steps.  The time to prepare is now.

Online Resources on Swine Flu:

www.pandemicflu.gov/ one-stop access to U.S. Government avian and pandemic flu information
www.cdc.gov/ the Centers for Disease Control and Prevention website
www.who.int/  the World Health Organization website

Related posts:

1. Centers for Disease Control and Prevention Updates H1N1 Guidance for Businesses