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Military Veteran
Military Veteran
Military Veteran
Military Veteran
Military Veteran

Employers Face Legal Duties Regarding Veterans

Jan. 13, 2021
Make sure you know all of the laws that apply to their hiring and employment.

While most Americans are aware of the sacrifices and devotion to duty of those who serve in the military, employers should never forget the obligations they bear to those who have served and the employments laws created to provide them with the aid and assistance they need.

Some business groups have organized efforts to help veterans find jobs in their industries. In the logistics field, American Trucking Associations and the U.S. Chamber of Commerce have worked closely with the military to hire truck drivers and mechanics, which are in short supply in the private sector, along with offering opportunities in other job categories.

Although making a practice of hiring veterans is a good idea, employers need to be fully aware of the welter of laws that affect their hiring and employment, warns Robin Shea, a partner with the law firm of Constangy Brooks Smith & Prophete. These laws apply to everything from hiring practices to allowing National Guard members and reservists to return to work after they have been ordered to serve on active duty.

(Keep in mind that some states have their own laws promoting the hiring of veterans and protecting those who are already on the job.)

Before employment, employers who are federal contractors should be aware of the Vietnam Era Veterans’ Readjustment Assistance Act of 1974 (VEVRAA). This law, among other things, requires employers to list most of their external job openings with their local employment service office.

Contractors also are encouraged to work with veterans’ groups for help in recruiting and hiring protected veterans. In addition, federal contractors who are subject to VEVRAA must take affirmative action to hire and advance protected veterans and cannot discriminate against them.

Those who are protected by the VEVRAA are:

• Disabled veterans.

• Veterans who were on active duty during a war.

• Veterans who served “in a campaign or expedition for which a campaign badge was authorized” by the U.S. Department of Defense.

• “Recently separated veterans” (those who have been discharged or released from active duty within the past three years).

• Veterans who participated in a military operation that received an Armed Forces service medal.

Dealing With Disabilities

The Americans with Disabilities Act (ADA) applies to all employers with 15 or more employees—not just federal contractors. It prohibits discrimination against individuals with disabilities (military and non-military), and also requires reasonable accommodation in connection with the job application process.

Once they are employed, it is unlawful for an employer to discriminate against, allow harassment of, or otherwise treat an employee less favorably than other employees because of his or her status as a “protected veteran” under the law, Shea notes.

Veterans who need time off work for military service or Reserve duty have rights under the Uniformed Services Employment and Reemployment Rights Act of 1994. Their family members also may be entitled to time off under the Family and Medical Leave Act (FMLA) qualifying exigency and “covered servicemember” categories of leave.

Under the Uniformed Services Employment and Reemployment Rights Act (USERRA), an individual may generally be absent from work for military service or Reserve duty for five years, and sometimes more, with the right to reinstatement under what is called the “escalator principle.” The escalator principle means that the employee returning from military service is entitled to any pay increases, promotions, seniority, and other goodies that may have gone into effect during the period that he or she was serving. Veterans whose work-related skills have become rusty or out of date during the period of military service are to be given a reasonable chance to get back up to speed so that they will be qualified for reemployment.

An employee who needs leave for military or Reserve duty is required to let the employer know in advance unless doing so is “impossible, unreasonable, or precluded by military necessity.” The notice can be oral or written. Employees in the service may use accrued paid leave or vacation to cover all or part of their service period, but the employer cannot require them to do so.

The employer’s healthcare benefits can be continued during military service, with different terms based on the length of military service. If the service is more than 30 days, the veteran can continue health insurance for up to 24 months but can be required to pay 102% of the premium. If the military service is 30 days or less, the employer is required to maintain health insurance coverage as if the veteran were continuously employed.

The time within which the veteran must apply for reemployment after discharge or release varies, depending on the length of military service. Veterans who have served the longest have more time to apply than those who served for shorter periods.

Upon return to work, a disabled veteran is entitled under the USERRA (as well as the ADA and, if the employer is a federal contractor, the VEVRAA) to reasonable accommodations as needed for the veteran’s service-connected disabilities.

Of course, even if the veteran has disabilities that are not connected with his or her military service, the ADA would still require the employer to attempt to make reasonable accommodation, Shea notes.

Although it should be needless to say, Shea reminds employers that it would violate the USERRA for an employer to discriminate against, allow harassment of, or retaliate against an employee based on his or her military service or exercise of rights under these laws. Like all other employees, veterans have the right to be treated with equity, dignity and respect in the workplace.

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