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Returning to work after a disabling injury

One of the more common questions I’ve gotten since this column began is from reservists who have been injured in service. They want to know how their injury will affect their return to their civilian job.

The simple answer that I generally give is that their civilian job should not be affected.

It’s important to note up front that injuries incurred in non-combat situations are protected in the same way as combat injuries under the Uniformed Services Employment and Reemployment Rights Act.

Under USERRA, the law says that all veterans, including disabled veterans, are entitled to be returned to the position they would have had if their employment not been interrupted by active duty.

That is, under the “escalator principle,” your employer must return you to a higher position if you would have been up for promotion had you not served active duty. If you would not have been up for promotion, you should be returned to the position you held prior to beginning your military service.

The law says employers must make “reasonable efforts” to return you to your position, and defines “reasonable efforts” as any actions that would not place an “undue hardship on the employer.”

What happens if an injured veteran is deemed not qualified for their duties in the previous job or in an “escalator position”?

As I mentioned, an employer must first make all “reasonable efforts” to return the disabled veteran to “the position in which the person would have been employed if the continuous employment of such person with the employer had not been interrupted by such service.”

If “reasonable efforts” cannot return the employee to the proper position, the employer shall place the employee “in any other position which is equivalent in 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.”

If an employer is unable to place a disabled veteran as outlined above, the law says the employee should be placed “in a position which is the nearest approximation” in terms of “seniority, status and pay consistent with circumstances of such person’s case.”

While USERRA clearly intends that disabled veterans have the right to re-employment, there are two things that any employee should consider.

First, you have to “qualify” for the position to which you wish to return. There is a possibility that you may not qualify for the same or a similar position. As such, any new position may not be a promotion; there’s a possibility that the new position may be lower in the “chain of command.”

Second, while the employer must make all “reasonable efforts” to comply with the USERRA law, the employer does not have to accommodate you if they can show that re-employment would be unreasonable or cause an undue hardship.

If an employer alleges such, the burden rests on him to show why that is the case — and courts have consistently ruled that the burden to show undue hardship or unreasonableness is difficult to prove.

In a 1981 case, the court stated that “the statutory exception excusing a refusal to re-employ a veteran where reinstatement would be unreasonable is a very limited exception to be applied only where reinstatement would require creation of a useless job or where there has been a reduction in the work force that would reasonably have included the veteran.”

One caveat: That case does not relate to disabled veterans. There might be other factors to consider with the undue hardship or unreasonableness of re-employing an injured veteran. Some of these factors may be related to the cost of additional training or the cost to the employer of creating a work environment that is safe for the returning veteran.

Finally, a disabled veteran should consider whether there is any need to return to work right away. If you feel your injuries may improve over time to the point that you’ll be able to return to your old position, there are some things you might consider.

The law details the amount of time a veteran may take before returning to work. The total number of days you have between the end of your duty and the time you have to return to work depends on the number of days you were on active duty. The law takes into consideration a person who is hospitalized due to an illness or an injury and may allow for a period up to two years to seek re-employment.

If you have no choice but to immediately return to work, disabled veterans may consider whether their injuries fall under the Family Medical Leave Act. If you are eligible for FMLA, you may be entitled to another 12 weeks of leave with pay.

In sum, a disabled veteran has the same opportunities under the law as a veteran who returns without any injuries. In fact, USERRA may provide more protection to disabled veterans.  

Mathew B. Tully, Esq. is a field artillery officer in the New York National Guard and a veteran of Operation Iraqi Freedom. He is also the founding partner of Tully, Rinckey and Associates (http://www.fedattorney.com), a law firm in Albany, N.Y. E-mail your legal questions to mailto:askthelawyer@militarytimes.com.

The information in this column is provided for informational purposes only and is not intended to constitute legal advice. Readers are encouraged to seek the advice of an attorney or other professional when an opinion is needed.