When Johnny comes marching home

In this edition of In the Trenches, Acme tries to outmaneuver the Army.

Jerry Kahn was the senior security officer at Acme’s precious metal processing facility located a few miles from the company’s mining operations in the Rockies. He was a 34-year-old, no-nonsense kind of guy. This attitude could be attributed to being a veteran officer in the Army Reserve who participated in military training exercises that occurred throughout the year. In each case, Jerry notified Anne Emmony in Acme’s HR department of the dates he’d be off from work.

While on active duty last fall, Jerry and a few members of his military team were injured in an accident during a particularly hazardous training exercise. The Army extended his deployment to cover the prolonged out-of-state hospital stay and nearly two months of physical rehab the injury required. As soon as he was able, he contacted Anne from his hospital bed and was informed that he’d need to file an Acme form to request unpaid leave.

When the Army released him from active duty, Jerry still experienced some difficulty walking, had limited range of motion in one shoulder, and couldn’t stand or sit very long. He told Anne about his upcoming discharge before returning home to request reemployment with Acme’s security department and to give Anne the medical documentation that confirmed his physical limitations.

Anne told Jerry that his physician would need to submit an ADA accommodation information form. Because there were no forms in the office, Anne promised to send him one at home.

But Anne delayed sending the form for several weeks. When Jerry received it, he gave it to his doctor to complete and send directly to Acme.

The number of reservist in an organization might be important only if too many are out at the same time.

A few weeks later, Jerry contacted Anne, who told him the doctor never sent the form. Jerry repeated the exercise, despite the doctor’s insistence that he sent the first form as requested. Jerry tried to meet with Anne to get things straightened out, but Anne kept postponing the meeting.

When the meeting finally took place, Anne was accompanied by Acme’s risk management consultant. After half an hour of discussion, Anne offered Jerry an entry-level position in the security department with no supervisory duties at about half the pay he received before the accident. Jerry refused the deal, and Anne suggested he apply for a junior security officer position at a pay rate slightly below his former rate, providing he was the chosen candidate following a competitive interview process.

Jerry applied, was interviewed and selected for the junior job. Two weeks after he accepted the junior position, Jerry filed a complaint against Acme under USERRA with the Veterans’ Employment and Training Services at the U.S. Department of Labor.

How could this situation have been avoided? Should employers be wary of hiring military reservists? Should Jerry be grateful that he has a job in this economy? Is Acme showing insufficient respect for the military? What should an employer do when faced with a disabled veteran who seeks reemployment?

A plant engineer says:

This is a terrible situation made worse by an HR associate who isn’t doing her best. Not knowing if Jerry’s difficulties would be long-term or not makes this a more difficult situation. Anne should have been on top of this from the first call she received from Jerry. HR “lives” by forms and it would seem to me that Anne could have gone the extra mile to find out from Jerry where his forms were when she didn’t receive them in a timely manner. Then, the delay in sending the necessary forms seems to indicate that maybe Anne should be offered a “junior position.”

What’s important here isn’t the delay in forms being sent but whether Jerry could perform his duties as a security supervisor with the disabilities he had as a result of his training accident. It would appear that because he could perform the duties of a “junior” security officer, that he might be able to perform the duties of the senior security officer. If that’s the case, then shame on Acme and Anne.

I don’t believe employers should be wary of hiring military reservists. The number of reservists in an organization might be important only if too many are out at the same time. I believe Acme (through the action and non-action of Anne) has shown disrespect for the role military reservists play in our country. Respect for a wounded soldier would have dictated better follow-up and response to the necessary forms.

When faced with a disabled veteran who seeks reemployment, a company should try to accommodate them if possible. In this case, we don’t know if it was possible for Jerry to perform his duties as a Senior Security Supervisor or not.

Jeffrey L. Strasser
Bacova Guild
(540) 863-2656
Strasser.Jeff@bacova.com

An academician says:

The USERRA requirements are quite specific and basically say that the company should make “reasonable efforts” to return the veteran to the job they had left, and if that’s not possible, to offer the veteran a job that is the nearest approximation in terms of seniority, status and pay. There are several caveats to this general statement, the most important being whether the veteran is able to perform the duties of the previous job or the job with the “nearest approximation.”

As to the Acme situation, Anne should have gotten right on it after Jerry was released and gotten the forms to Jerry. She could have contacted the physician directly, or as some companies do, sent Jerry to be evaluated by Acme’s physician. Not all physicians are expert at assessing what the returning worker can or can’t do, and finding one that is competent in that area might be very useful. Some companies also have tests that they administer to assess job competency for specific positions.

What Acme seems not to have done is provide a basis as to why Jerry could not be reemployed at his previous job. If Acme could provide a good reason why Jerry couldn’t have the supervisor position, and if they could demonstrate that the job offered Jerry was the “nearest approximation,” they would have done their duty in complying with USERRA.

As to being wary of army reservists, that would open a discrimination case that Acme doesn’t want to get into.

Professor Homer H. Johnson, Ph.D.
Loyola University Chicago
(312) 915-6682
hjohnso@luc.edu

An attorney says:

Given our alphabet soup of employment laws — ADA, FMLA, USERRA — it's little wonder that Acme was confused and apparently stalling Jerry's return to work. In this case, Jerry's rights and Acme's obligations are dictated by both the Americans with Disabilities Act and USERRA.

The basic rule under USERRA is that a covered employee must be reinstated to employment following military service provided that the employee has given the employer notice of the military service and reapplies for employment within certain time limits. If an employee is hospitalized or convalescing from a military-incurred injury, the period within which the individual must reapply for employment runs from the date the employee has recovered from the injury.

Generally, an employee must be reinstated to his former position or the position he would have had if he had not been on military duty. One exception to this rule is if the employee can no longer perform the duties of his former position. In that case, the employer is required to help the employee become qualified for reemployment unless that would cause an undue hardship for the employer. This is the same “undue hardship” that is an exception to the accommodation requirement under the ADA.

An example might make this clearer. If the senior security officer position required an employee to be on his feet for the entire work shift and Jerry's injury precluded him from standing for eight straight hours, Acme could help Jerry become requalified for his former job by allowing him to sit down periodically. Acme would be required to do this if it did not pose an undue hardship.

While the facts here don’t provide any detail about the duties of the senior security officer, it seems likely that an individual with limited range of motion in one shoulder and the inability to either stand or sit for long periods of time wouldn’t be able to perform in the position of senior security officer. Because it would pose an undue hardship for Acme to modify that job to fit Jerry's restrictions, Acme appears to have been correct in not reinstating Jerry to that position.

Acme had an obligation, however, to employ Jerry in a position as close to the position he left as he was capable of performing given his service-incurred injury. And that appears to be what Acme did by placing Jerry in a junior security officer position at a slightly lower pay rate. And to make things even simpler, this accommodation is precisely what is required under the ADA for a disabled employee, which Jerry surely is because of his physical limitations.

Just for the record, an employer who refuses to hire an applicant because he is a military reservist violates the law.

Julie Badel, partner
Epstein Becker & Green, P.C.
(312) 499-1418
jbadel@ebglaw.com