Reinstatement after Deployment: An Employer’s Obligation to Reemploy Returning Military Personnel

Do you employ military personnel? If so, you need to know your obligations regarding reinstatement when your employee returns from military leave. The Uniformed Services Employment and Reemployment Rights Act of 1994 (“USERRA”) governs these situations.

Reinstatement under USERRA works differently than reinstatement under the Family and Medical Leave Act or the Americans with Disabilities Act. USERRA applies a so-called “escalator” principle. Generally, the returning employee would be entitled to assume the position they would have achieved had they been continuously employed. This may not necessarily be the same position they left behind. In other words, if the employer would, with “reasonable certainty,” have promoted or somehow enhanced the employee’s role, the employee would usually be entitled to that enhanced role upon return.

The reinstatement priorities, however, may depend upon the duration of the employee’s absence. If the absence lasted fewer than 91 days, the “escalator” rule applies so long as the employee is qualified for the enhanced role. If the employee is not currently qualified for the role, or cannot become qualified with training, the duty to reinstate reverts to the prior position the employee held upon departure. If the employer filled either position during the absence, the individual who filled-in must be “bumped” in favor of the returning military employee.

If the employee’s military leave lasted 91 days or longer, the “escalator” rule still applies. If there is no enhanced role, or if the returning employee cannot be qualified with a reasonable amount of training for the enhanced role, the employer must reinstate to the employee’s original position. If the returning employee is not qualified for and cannot be trained for that role either, then the employer must go at least one step further. The employer must place the returning individual in another position of “like seniority, status, and pay.” However, in the latter case, employers are usually not required to “bump” a more senior employee to accommodate the returning veteran.

There are reinstatement exceptions: impossibility and undue hardship. “Impossibility” usually means the workforce has been significantly reduced and the required position no longer exists. “Undue hardship” applies when the employee is no longer able to perform the essential job requirements of their prior position, and despite a good faith effort at accommodation in a position of similar duties and compensation, the employee is still incapable of performing the work. It may also, in some cases, be “undue hardship” for an employer to displace another permanent employee in order to accommodate the returning military employee.

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