USERRA and return to work physical

hhaynal

We have a military employee who has been out on leave for the past 2 yrs and is scheduled to return to work this week. Health Services will be conducting a normal return to work physical, but has inquired whether a drug test should be conducted.

Policy is preemployment drug screen (new employees) and probable cause for current employees (excluding CDL drivers who are random). Employees transferring between business units are not screened.

My question is this, Do you think it reasonable and nondiscriminatory to require an employee who has been out on leave for 2 yrs to be required to undergo a drug test as part of his return to work physical? This is the first instance of this situation.

How would you handle?

System

Under USERRA the serviceperson must submit an application for reemployment within 90 days after completing their military service. Though I don't insist on the application and accept a letter of intention to return to work instead, it seems to me that you can treat the returning veteran as a new employee and conduct the drug screening and physical. Just my opinion.

hhaynal

That's sort of what I was thinking, but thought perhaps some other forumite might have addressed this situation before.

pork1

HHAYNAL: You should first follow you company policy and if you would also drug test a person returning from FMLA or W/C to a drug test/screen, then also test the soldier. If not, then I would not do it to the USERRA returning ee.

I, too, will accept a written letter of intent, I believe the words "application for re-employment" are words that are genericly speaking to an intent to return to service with the x-employer. Our employees on active duty are in a "personal leave of absence category" and remain on our personnel/payroll roles in a no pay due status, but their benefits and participation continue on as if the were here! They would never be terminated unless they "voluntarily quit".

It is for this reason that an application for employment is an inappropriate term as specified in the law in our situation. Upon their return within the specified times, we will pay them the benefits earned and accumulated while away. Their medical coverage will be re-started immediately without any waiting period.

We wish you well.

PORK

KathyHR

I had happened to print out the regs & pertaining info this morning since I had to make a clarification to a returning service member.

Section 4316 (b)(1) says that "a person who is absent from a position of employment by reason of service in the uniformed services shall be-- (A) deemed to be on furlough or leave of absence while performing such service..."

I didn't see anything about drug testing but if I required someone returning from a leave of absence (no matter what the time frame) to have a drug test then I would for a returning service person. We're handling the service person's absence just like any other leave of absence. You can require them to provide documentation that 1) their reemployment application is timely, that 2) they haven't exceeded the five-yhear limit on the duration of service and 3)that their separation or dismissal from service was not disqualifying. But you can't "delay or deny reemployment by demanding documentation that does not exist or is not readily available."

If you would like some web sites that have this information let me know & I'll mail you the loooong web addresses.

Kathy