On Monday, March 24, the Department of Justice (DOJ) Civil Rights Division commenced an enforcement action against an employer based upon its reemployment of a servicemember who returned from deployment with a service-related temporary disability.
Initially the employer properly reemployed the servicemember in a temporary position given the limitations of his disability, which was not the “escalator position” the servicemember would have been entitled to had he not been temporarily disabled. Under these circumstances, USERRA requires that once the temporary disability is ameliorated to the point the servicemember is able to perform the essential functions of the escalator position, he/she must be reemployed in the position the servicemember would have been entitled to had he/she been continuously employed during the uniformed service and, according to the DOJ, the period of employment in the temporary position.
According to the DOJ complaint, although the employer eventually moved the servicemember to the position he held before deployment, albeit only after a six-month delay, it treated the servicemember as a new employee, denying him the seniority, status and benefits he would have been entitled to had he remained continuously employed during his uniformed service and his temporary accommodation due to his disability.
The complaint seeks adjustment to the servicemembers’ seniority status to the date he reapplied for the “escalator position” to which he was entitled under USERRA and back wages for the six-month delay in reemploying him in that position. Furthermore, the DOJ seeks damages based upon the servicemembers’ inability to bid on shifts and positions he would have been entitled to but for the employer’s violation of USERRA.
Although this case involved a shoulder injury, USERRA does not distinguish between this and a disability based upon PTSD/PTSI. Indeed, the temporary nature of the shoulder injury is comparable to the temporal nature of a PTSI disability, assuming it is promptly and effectively diagnosed and treated. Thus, employers and human resources professionals should be aware of USERRA’s requirements as it relates to temporary disabilities caused or aggravated by their employees’ uniformed service.
As always, if a servicemember or employer has any questions regarding their rights and obligations under USERRA, ESGR is there to assist. Please contact ESGR to answer these questions or to resolve misunderstandings under USERRA before it ends up in a DOJ enforcement action.