USERRA - Need Some Quick Guidance
stilldazed
640 Posts
We have an employee who returned to work 5/26/04 under USERRA protection after serving in Iraq for just over a year. We managed our record keeping properly, returned him to his prior position within days of his request to come back to work, caught his in-service training up, and obtained a copy of his DD214 (reflecting honorable discharge) and written request to be returned to work.
This past weekend he was no call/no show for two days in a row, and called in to his supervisor on the third day advising episodic problems with "mental illness" and asked to be relieved of an active work schedule until he could get himself in better shape. He was hired by our organization 1/03, went out on active duty among some of the first to go overseas in 3/03, and returned to the US late 4/04. We don't have significant prior knowledge of this employee because of his short tenure before being called to active duty. He didn't disclose any history of mental illness during his new-hire physical or on the medical history questionnaire. We have no medical records in place yet to confirm his report about mental illness. We expect to have further dialog with him tomorrow.
I cannot extend FMLA protection to this fella because his work hours fall way short of 1,250 in the last 12 months. We only have 3 weeks of work hours since his return. Given that the newly returning veterans appear to be among the most protected of all employees, my question, then, is whether there is anything in USERRA about newly returning military veterans that continues to protect their jobs if they return with a military-related condition that prevents their ability to work in the job they held before they left. Granted I am trying to piece some things together right now based on limited information, but I have nothing else to go on at the moment and need to get through a meeting with this employee and his supervisor tomorrow. Because we have no prior disclosure of mental illness, my assumption right now is that if he does have a problem it may be military related from his active duty. Does he continue to be covered by USERRA during a documented recovery period, or are we free to terminate his employment or transfer him elsewhere if he cannot perform his pre-active duty job duties?
Anyone, please help!
This past weekend he was no call/no show for two days in a row, and called in to his supervisor on the third day advising episodic problems with "mental illness" and asked to be relieved of an active work schedule until he could get himself in better shape. He was hired by our organization 1/03, went out on active duty among some of the first to go overseas in 3/03, and returned to the US late 4/04. We don't have significant prior knowledge of this employee because of his short tenure before being called to active duty. He didn't disclose any history of mental illness during his new-hire physical or on the medical history questionnaire. We have no medical records in place yet to confirm his report about mental illness. We expect to have further dialog with him tomorrow.
I cannot extend FMLA protection to this fella because his work hours fall way short of 1,250 in the last 12 months. We only have 3 weeks of work hours since his return. Given that the newly returning veterans appear to be among the most protected of all employees, my question, then, is whether there is anything in USERRA about newly returning military veterans that continues to protect their jobs if they return with a military-related condition that prevents their ability to work in the job they held before they left. Granted I am trying to piece some things together right now based on limited information, but I have nothing else to go on at the moment and need to get through a meeting with this employee and his supervisor tomorrow. Because we have no prior disclosure of mental illness, my assumption right now is that if he does have a problem it may be military related from his active duty. Does he continue to be covered by USERRA during a documented recovery period, or are we free to terminate his employment or transfer him elsewhere if he cannot perform his pre-active duty job duties?
Anyone, please help!
Comments
That doesn't exactly fit your situation, since he did return to employment, but I think you could choose to apply it anyway.
Another passage, which I am not sure grants FMLA as if he had been employed, is: "A USE returning from military service is entitled to the same level of seniority-based benefits that would have been attained had his employment not been interrupted. Thus, if an employee would have accrued additional vacation, additional seniority, or other benefits (including increased pension plan benefits, stock options, bonuses, or severance) during the time he was on military leave, then he is entitled to the additional vacation, seniority or benefits upon return."
This may be the one: "An employee cannot incur a 'break in service' or forfeiture on account of a period of uniformed service."
Bottom line, I think, is, if you are looking for a way to grant FMLA, you can find it reasonably, above. But, if you're looking for a way to NOT have to, I would consult an attorney with USERRA knowledge. The system will be on his side for sure.
You confirmed my hunch. Returning veterans truly are a very protected work group, so while I didn't know how to continue to extend protection, I was sure there was a way to do so without exposing our organization to what might otherwise appear to be disparate treatment in favor of this employee.
I'm really not trying to be extra nice to this particular employee, but I do want to be fair and I want to minimize risk to my employer. I should be able to speak intelligently in tomorrow's meeting. Where did you get the handbook?
These handbooks, a set, are from a law firm. But the entire USERRA is on DOL's website. It's got a bunch of gov.slashes, but do a quick search on USERRA and it'll speed you there.
I'll postpone the "hours of research" until after today. Been there and done that at dol.gov, that's why the reference to "hours" and not "minutes." The whole week is shaping up to be one of those where I need all the help I can get. Sounds like you have a gold mine in your reference materials.
It is not dangerous, but with the current and most recent deployments of our military many more of us (HRs) have gotten a better understanding and education. Go for the FMLA it gives you breathing space to get it right, it will also allow you to get his physician's certification of an illness. It may also cause the military service to recall the individual for medical attention. One of our returning soldiers had a medical situation also, he was recalled treated and then released again, before we put him back into our work force. Ours was a physical issue rather than a mental issue, but the rules should likewise apply.
Keep us posted! Mental stress and other medical issues may arise after the fact.
PORK
The catch right now for me is that this incident has occurred two weeks post open enrollment (still drowning in paperwork and payroll issues), just before we must be compliant with new FLSA regulations (another story altogether), and I only have one assistant. I am very stretched at the moment and need to not dedicate unnecssary time to intense research if I have other options. You two came through for me, and I certainly appreciate that. Tell your bosses I said you could have the afternoon off.
We had three called to active duty last year, and this is my first experience with USERRA not going exactly as expected. I'm short on USERRA experience, but I have tremendous experience in my present work place with management being too generous because the recipient of the generosity was well liked or someone got carried away with the idea that "it was the right thing to do," committing us to more than we could offer. I also know that turnover in our organization can sometimes be high, and while I don't expect to be leaving anytime soon, I'd like to leave things clearer for my replacement than what I inherited in case I do leave. Playing by the rules keeps things fair and clean, and it's the way I like to do it.
Admittedly, I'm biased towards veterans, but I would not allow that to cloud my judgement.
Things took a turn toward the sticky yesterday. I must have been living in a dream when I thought they wouldn't. The run down is this:
1. Employee is no call/no show for two days Tuesday/Wednesday last week.
2. Supervisor contacts employee to ascertain reason and remind him of policy.
3. Employee states "my mind is not right," "what about FMLA," and "write me off the schedule until I get things sorted."
4. Supervisor agrees to remove employee from active work schedule, refers employee to my office for FMLA info, and schedules a Friday meeting with employee.
5. Employee is no call/no show for Friday meeting and does not contact my office.
6. Tuesday this week I granted tentative FMLA designation for 3 weeks with certified letter to employee and instructions to supervisor to follow up with employee on the no call/no show for the Friday meeting.
To that point, the supervisor and I had been communicating often and at great length about developments as they occured.
7. The slammer hit yesterday afternoon and caught me off guard: My assistant received notice that the employee submitted a verbal resignation to the supervisor by phone. No documentation summarizing a phone call to or from the employee was attached. The supervisor now insists that I misunderstood the "mind is not right" statement as an indication of a potential medical issue and that the employee's inquiry about FMLA was insignificant, though the supervisor did record both statements in an e-mail to me last week.
My current status is that I have notified the supervisor and her next two levels of supervision (director & VP levels) that the termination will not be processed until I get complete recorded details about all phone conversations with the employee and I or the VP establish contact with the employee again and attempt to validate the resignation and get it in writing. In the meantime, the employee is on FMLA leave.
The kicker--CNN reported last night that approx. 45% of recently returning vets are seeking treatment for stress-related psychological disorders.
I'm open for additional suggestions, insight, and guidance.
Thanks,
>now insists that I misunderstood the "mind is
>not right" statement as an indication of a
>potential medical issue and that the employee's
>inquiry about FMLA was insignificant, though the
>supervisor did record both statements in an
>e-mail to me last week.
Too late to add much, but this sentence jumped out at me like a blazing arrow. An employee's inquiry of FMLA IS NEVER insignificant and that attitude will get a lawsuit quicker than any other. I hope you have counseled that supervisor of the error of his ways.
[url]http://www.dol.gov/vets/media/fmlarights.pdf[/url]
I have an article on USERRA coming out in the July issue of "In House New England," a Lawyer's Weekly publication. After the publication date, I can probably send a link (or copy of the article) to anyone who would like it. Some of the provisions of USERRA are going to take people very much by surprise...
Evan
Given that memo and the prior information provided by Don D about the 2-year period of extended deadlines, am I correct to understand that we grant FMLA and allow it to lapse, then continue to extend the USERRA protection of uninterrupted service and return to pre-active duty position for an additional 92 weeks? I don't disagree that it would be proper, but I sure see myself burning up a lot of hours in paperwork and recordkeeping to satisfy DOL requirements!
I'd like to have the link to your article once it's published.
Thanks,
PORK
"In the event that an employee suffers an illness or injury (either incurred or aggravated) while performing service in the uniformed services and is precluded by that illness or injury from seeking reemployment within the deadlines set forth above, the deadlines are extended for up to two years while the employee recovers from the illness or injury."
That apparently does not say 'what if the employee comes back to work and then realizes he is ill and then the employee has some sort of two year abeyance period during which he is excused from work'. It is not as Pork seems to suggest some magical two year period that can be put into play under a variety of circumstances. The text of the Act addresses 'return to work', not 'remaining at work, once returned'.
But perhaps the attorney will know of another section of the Act which offers those already returned some protection if they are disabled from work, other than FMLA.
Only because I asked our employee "is there any medical condition that would hinder your return to our employment?" Our employee then told me about the Hernia, I immediately stopped inprocessing him until I could get the issues resolved. I did not want the company to be responsible for medical conditions that were the US Army's. I did not want our medical plan enrolled employees to suffer the cost of medical attention nor the medical leave dollars that would have been required for this condition that hasd nothing to do with us.
He could have said none and then after the fact a few months of work called forth an accident/injury of a hernia or mental stress or I'm sick in the stomach and got to see a physician or the stress is tomuch and I need some time off to get my life and head straight. the war got to me and I'm not sleeping well and the squellof these pigs ain't helping!!!
Have fun ya'll dreaming but "___ happens"!
PORK
I will tell you that when I began reading through post number 18 I was expecting you to mention suicide. I'm thankful that you did not. The supervisor's inappropriate suggestions could very well have had that outcome.
I see a classic set of circumstances, and, yes, he did specifically mention FMLA when I know he didn't have to. I haven't dropped the issue and will try to reach him today. I thought the supervisor and I were on the same page until yesterday. I was really unprepared for the termination notice. And I hope the "S" word is not creeping into the picture somewhere.