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HR MATTERS E-TIPS
THIS WEEK'S E-TIP: Leave Reinstatement Rights from A (ADA) to U (USERRA)
(Part 2 of 2)
April 11, 2006, Volume 8, No. 15
Published by Personnel Policy Service, Inc.
"Your Policy and Compliance Experts Since 1972"
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THIS WEEK'S E-TIP: Leave Reinstatement Rights from A (ADA) to U (USERRA)
(Part 2 of 2)
Workers' compensation and
military leave laws also impact your
obligations to reinstate an employee who has been on a leave of
absence and is ready to work. Find out the five steps you can take to
make sure you comply with different leave reinstatement requirements. |
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THIS WEEK'S E-TIP: Leave Reinstatement Rights from A (ADA) to U (USERRA)
(Part 2 of 2)
In last week's HR Matters E-Tips, you found out what your
obligations
are to reinstate an employee returning from Family and Medical Leave
Act (FMLA) leave, pregnancy leave, and leave as an Americans with
Disabilities Act (ADA) accommodation. (If you missed that ezine,
please
click here for a copy:
http://ppspublishers.com/ez/html/040406txtb.html
This week, you'll learn what state workers' compensation statutes
and
the federal military law require, plus five steps you can take to
make sure
you reinstate employees properly.
* Workers' Compensation Statutes and Reinstatement *
Most state workers' compensation statutes do not specifically
address
reinstatement for employees who are on leave and receiving workers'
compensation benefits. Rather, these laws generally guarantee
compensation and medical benefits to employees injured in the
workplace. The laws also prohibit retaliation against employees who
file
workers' compensation claims.
Accordingly,
employees on leave for work-related injuries generally
should be treated under the provisions of the FMLA, if they meet its
eligibility requirements, and should be reinstated according to the
FMLA's requirements discussed in
last week's E-Tips. If the employee
on a workers' compensation leave does not return to work at the end
of
the 12-week FMLA leave, the employer generally may terminate the
employee without violating the FMLA, as long as the termination is
consistent with the treatment of similarly-situated employees who
have
taken FMLA leave. Remember, however, an employee with a work-
related injury may be considered disabled under the ADA and,
therefore,
may be entitled to additional leave as an accommodation.
A few state workers' compensation laws, such as Maine, New
Hampshire, Oregon, Rhode Island, and West Virginia, do require
reinstatement regardless of the length of the leave. For example,
Maine's statute generally requires reinstatement to the prior
position if
available or to another available position. You should consult state
law
to determine your obligations under these laws.
* Military Leave and Reinstatement *
The Uniformed Services Employment and Reemployment Rights Act
(USERRA), which applies to all employers regardless of size, grants
most employees up to five years of
military leave. The law further
requires that any employee returning from military leave, who
receives a
certificate showing satisfactory completion of military service,
must be
restored to his previous employment. The type of position to which
the
veteran must be reinstated depends on the period of service and on
the
veteran's abilities at the time of reinstatement. The following
criteria
apply:
-- Service of 90 days or less. The veteran must be reemployed in
the position he would have held if he had continued in employment
without interruption for military service, as long as he is
qualified for that
position. If the veteran would have been promoted if he had
continued in
employment, but cannot be qualified for that new position after
reasonable efforts by the employer, he may be employed in the
position
he held when military service began.
-- Service of 91 days or more. The veteran must be reemployed in
the position he would have held except for the interruption for
military
service, or in a position of like seniority, status, and pay, if
qualified for
that position. If the veteran would have been promoted if he had
continued in employment, but cannot be qualified for either that new
position or an equivalent one despite the employer's reasonable
efforts,
he must be reemployed in the position he held when the period of
service began, or in a position of like seniority, status, and pay.
-- Veterans who cannot be qualified for the job. If the veteran
cannot be qualified for the job he would have held, or the position
he
formerly held after the employer's reasonable efforts, and his
inability to
qualify is not related to a service-incurred or aggravated
disability (see
below), he must be reemployed in any position of lower status and
pay
for which he is qualified, but with full seniority.
-- Disabled veterans. A disabled veteran whose disability was
incurred or aggravated by military service, and who cannot perform
the
job he would have held even after reasonable accommodation by the
employer, must be reemployed in: (1) any other position of
equivalent
seniority, status, and pay for which he is qualified or could become
qualified through the employer's reasonable efforts; or (2) in the
nearest
approximation to an equivalent position consistent with the
veteran's
circumstances.
Note that USERRA requires that returning veterans be "promptly
reemployed." The new USERRA regulations (which took effect this
January) state that the term means "as soon as practicable under the
circumstances" and further indicate that unless there are unusual
circumstances, reemployment must occur within two weeks of the
veteran's application.
USERRA also obliges you to abide by its "escalator principle," which
requires that the veteran receive any change in position or benefits
to
which he would have been entitled had he remained continuously
employed. In addition, the law specifies certain limited
circumstances
under which you are relieved of the obligation to reemploy veterans
returning from military service, such as when reemployment is
"unreasonable or impossible" because of a change in the employer's
circumstances.
Finally, USERRA also protects returning veterans from discharge
without
"cause" for a period of time after reemployment. If the returning
veteran's military service lasted between 31 and 180 days, the
veteran
may not be terminated without cause for 180 days after the date of
reemployment. If the veteran's period of military service was more
than
180 days, this protection applies for one year after reemployment.
Veterans with less than 31 days of military service do not have
protection
against discharge without cause. |
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* Five Steps to Leave Reinstatement *
As the above discussion shows, you may have reinstatement
obligations
under several federal leave and discrimination laws. Unfortunately,
the
complexities of these laws can create opportunities to make
mistakes.
You can prevent compliance problems, however, if you develop and
apply a systematic approach to analyzing each employee's
reinstatement rights. To facilitate your compliance efforts, you
should:
- Identify the
leave laws protecting the employee when the leave
begins and make sure you understand and comply with their
requirements. So, if the employee takes leave for pregnancy, then
the
FMLA and PDA both may apply. Or, if the employee takes leave for a
work-related injury, the FMLA and state workers' compensation laws
may apply.
- When the employee requests to return to work, if the employee
was
on leave for a serious health condition or disability, ask for
medical
return-to-work certification. This certification can help you
determine if
the employee can be reinstated to his regular job or if you have
further
obligations under the ADA (see below).
- In the case of FMLA
leaves, determine if the employee is
returning within the 12-week time frame. If so, be prepared to
reinstate
to the same or an equivalent position. If not, you may be able to
deny
reinstatement, unless the ADA, workers' compensation laws, or
state
leave law require additional leave or accommodation (see below).
- In the case of military
leaves, be prepared to reinstate the
returning veteran in most circumstances. USERRA gives employees up
to five years of military leave and grants many more rights, as a
way of
supporting the volunteer army, than any other leave law. (Although
this
leave may seem lengthy, as a practical matter, many employers have
found that veterans returning from post 9/11 duty have gained
valuable
experience and job-enhancing skills.)
- If an employee is unable to return to work at the end of a
leave
because of a continuing medical condition, determine if the
employee is
disabled under the ADA and entitled to further leave as a
reasonable
accommodation. In addition, if the employee's medical condition is
work-
related, check state workers' compensation law for additional
leave and
reinstatement requirements.
The real key in all of this process is to take quick action to
analyze the
nature of each leave, determine which laws apply, and then give the
employee proper guidance on reinstatement rights. If you follow
these
steps consistently, you will help make sure your employees get all
of
their rights under the various leave and discrimination laws and, at
the
same time, greatly reduce your chances of making mistakes. |
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Subscribers to the Personnel Policy Manual and HR Policy Answers
on
CD can find more information on reinstatement requirements in
Leaves
of Absence, Chapter 703, notes 42 and 45.
If you don't have the manual or CD, but would like a
FREE sample
Leaves of Absence policy (61 pages, $29.95 value, complete with
policy language and extensive HR best practices and legal background),
go to:
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Information provided in HR Matters E-Tips is researched and reviewed
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