Tag Archives: USERRA

Happy Memorial Day! A Quick Guide for Affirmative Action Programs for Hiring Veterans with Disabilities

Contributed By Allison P. Sues, May 26, 2021

With the upcoming Memorial Day holiday offering an opportunity to acknowledge and appreciate the sacrifice made by military families, it seemed a fitting time to revisit the legal nuances of providing preference in hiring veterans with disabilities. Veterans report high instances of service-connected disabilities, including blindness, deafness, missing limbs, major depressive disorder, and post-traumatic stress disorder. Some laws require employers to provide preference to disabled veterans. Some employers voluntarily create affirmative action programs for veterans with disabilities. Here is what employers should know. 

Can an employer give preference in hiring to a veteran with a disability?

Yes. There is no law that prevents an employer from voluntarily creating a program that gives preference in hiring to qualified veterans with disabilities. Moreover, there are various laws in place that may require an employer to provide affirmative action to veterans. For example, the Vietnam Era Veteran’s Readjustment Assistance Act (VEVRAA) requires all business with a federal contract or subcontract exceeding $100,000 to take efforts to employ and advance veterans with disabilities. The Uniformed Services Employment and Reemployment Rights Act (USERRA) requires employers to make reasonable efforts and accommodations to return veterans with service-connected disabilities to their position prior to military service or to help qualify the veteran for a job of equivalent seniority, status, and pay. 

May an employer ask if an applicant is a disabled veteran? 

Yes. While the Americans with Disabilities Act (ADA) generally prohibits employers from making medical inquiries, they may do so for affirmative action purposes. Therefore, an employer may ask applicants to voluntarily self-identify as a veteran with a disability if it is collecting this information to undertake affirmative action required by a veterans’ preference law, or to provide benefits to these applicants through the employers’ own voluntary program.   

If an employer requests that applicants self-identify as a veteran with a disability, the request must clearly state that this information is intended for use solely in connection with its legal affirmative action obligations, or voluntary affirmative action efforts. Employers should also confirm with the applicants that the information will be kept confidential, and that the applicant’s decision to disclose this information is completely voluntary. Keep all records of disability-related information in a separate, confidential file.

What are some steps that employers can take to attract, recruit, and hire veterans with disabilities?

  • Job postings and advertisements may encourage veterans with disabilities to apply and should explicitly state that the organization is an equal opportunity employer.
  • Employers may send job opening information to organizations that job-train veterans and assist veterans with finding employment.
  • Employers may attend job fairs that connect employers with qualified veterans searching for work.
  • Employers should review all language used in job postings to make sure that nothing would dissuade a veteran with a disability from applying. Job postings should not include language calling for “excellent health” or listing required physical abilities if an individual with a disability would be able to accomplish the job function differently through an accommodation.
  • Employers must provide accommodations to veterans with disabilities in the application process where necessary. For example, employers should provide applications and other written materials in an accessible format, whether that be in large print, Braille, or electronically. Employers should also conduct interviews in accessible locations. 

Military Leave is Not Just for Veterans – Addressing Military Leave Requests from Current Employees

Contributed by Michael Wong

Employers often do not question a service member’s request for time off due to being deployed or called up to active duty. However, when an employee comes home from active duty do you know your legal obligations? Better yet, do you know what to do if one of your employees is a service member who regularly requests time off for “training”?

Illinois employers are primarily affected by the federal Uniformed Services Employment and Reemployment Rights Act (USERRA) and the Illinois National Guard Employment Rights Law. The problem is under both laws there is no formal process to check whether an employee’s leave is really military related. Moreover, there is no set or required amount of notice and the notice may be either written or oral.

In fact, for military service that is less than 30 days, employers are prohibited from requesting any documentation. As one can imagine, this can make it extremely difficult to verify that the requested time off is actually for military purposes. The best way to address this is to proactively request that employees provide you the name of their military unit and commanding officer’s contact information. Commanding officers are generally willing to verify leave requests and make sure that employers receive advance notice of training and assignments. More often than not, commanding officers provide service members with training schedules to give to their employers (and are often more than happy to ensure that employers receive those schedules).

For military service that exceeds 30 days, employers may request that employees submit an application for reemployment and provide documentation to establish that (1) the reemployment application is timely (leave of 30 to 180 day service employee must return within 14 days of service completion; leave of 180 days or more must return within 90 days of service completion); (2) the employee has not exceeded the five-year service limitation; and (3) the employee’s separation or dismissal from service is not disqualifying (i.e. dishonorable, bad conduct, court martial, etc.). However, it is important to note that if documentation is not immediately available you must re-employ the individual until the documentation does become available.

It is also important that employers understand that when an employee is on military leave, he or she is generally entitled to the same benefits that an employee on a similar furlough or leave of absence would be entitled. Likewise, under USERRA an employer is required to allow an employee and eligible dependents to elect to continue health insurance coverage during military service for up to 24 months. That being said, for leave less than 31 days an employee can still be required to contribute the same amount towards health insurance as active employees and for service of more than 31 days.  After 31 days the employer can provide notice of COBRA rights and require the employee to pay up to 102% of the full premium, which represents the employer and employee share, plus 2% for administrative costs.

Needless to say, military leave is like a minefield for employers and so it is vitally important that you have legal counsel that can guide you through it safely.


Heads Up Employers: ‘Tis The Era For USERRA!

Contributed by Carly Zuba

As touched upon in our last posting, many employers may see a mini-influx of men and women from the uniformed services applying for or returning to positions at their companies, as the last of the U.S.troops have withdrawn from Iraq.  As a result, one of the federal laws that employers should be familiar with when a veteran is applying for a job is the Uniformed Services Employment and Reemployment Rights Act of 1994 (“USERRA”).  The Department of Labor has developed an interactive website to help employers understand their responsibilities under the law.  Here is the shortened “411” on USERRA:

  • First of all, what is USERRA?  USERRA’s purpose is to ensure that members of the uniformed services can return to their civilian employment upon completion of their service.  Additionally, USERRA protects individuals from discrimination in hiring, promotion, and retention on the basis of present and future membership in the uniformed services. 
  • Who is covered by USERRA?  USERRA applies to all employers, regardless of their size, and all employees, except for temporary workers.  It is important to keep in mind, however, that many states have laws that go above and beyond the protections provided by USERRA, so employers should ensure that they are in compliance with state military leave laws as well.
  • What does USERRA require of employers?  USERRA requires all employers to reinstate employees to the same or similar position upon the employee’s return from military leave, with no loss of seniority.  Employees who serve 90 or fewer days are entitled to return to the same job they would have held had there been no interruption in employment.  Employees who serve 91 days or more must be reemployed in the same job the employee would have held had there been no interruption in employment or in a position with the same seniority, status, and pay if the individual is qualified for the position. If an employee is no longer qualified to return to the same or similar position, and, despite reasonable efforts of the employer, cannot become qualified, then the employer can offer a position of lesser pay and status, but with no loss of seniority.  Additionally, once a veteran has been re-employed in their job, they cannot be fired for one year, except for cause, regardless of the period of their active duty.
  • When must employment and benefits be reinstated to the employee? Under USERRA, employment and benefits must be reinstated if the following conditions are met:
  1. The employee gave notice to the employer that he/she was leaving to perform service
  2. The service did not exceed five years (this is subject to a few exceptions)
  3. The employee  had an honorable discharge
  4. The employee reported back to work within the required time frame (which depends on the length of the employee’s service)

In closing, employers who (1) encounter job applicants who were in the uniformed services, (2) have employees entering the services, or (3) have employees returning from service should ensure that their employment policies and practices adhere to the requirements of USERRA.  As always, an experienced employment counsel can help you make sure this is in fact the case!