“Reporting for Duty”: Employers May Face Extended Obligations to Reemploy Veterans with Post-Traumatic Stress Disorder under USERRA

The Uniformed Services Employment and Reemployment Rights Act of 1994 (“USERRA”), 38 U.S.C. §§ 4301–4335, not only prohibits discrimination against employees and potential employees based on their military service, it also imposes certain obligations on employers with respect to employees returning to work after a period of service in the U.S. military.

Impacting employers’ reemployment obligations under USERRA is the unfortunate prevalence of Post-Traumatic Stress Disorder (PTSD) among veterans.  According to the U.S. Department of Veterans Affairs (VA), an estimated 11% to 20% of veterans who served in Afghanistan or Iraq later suffered from PTSD.  In some cases, PTSD can prevent employees returning from military service from immediately resuming their civilian employment.  As detailed below, however, this does not absolve employers of their reemployment obligations with respect to these individuals. 

The statute and regulations concerning an employee who returns to work after a lengthy military deployment are simple enough.  Under 38 U.S.C. § 4312(e)(1)(D):

In the case of a person whose period of service in the uniformed services was for more than 180 days, [the employee must] [] submit[] an application for reemployment with the employer not later than 90 days after the completion of the period of service.

 

An employer must then reemploy the veteran “promptly.”  See 38 U.S.C. § 4313(a)(1).

Under 38 U.S.C. § 4312(e)(2)(A), the ninety day period during which an employee must return to work or apply for reemployment may be extended for up to two years when:

[he or she] is hospitalized for, or convalescing from, an illness or injury incurred in, or aggravated during, the performance of service in the uniformed services.

Further, “[s]uch two-year period shall be extended by the minimum time required to accommodate the circumstances beyond such person’s control which make reporting within the [two-year] period … impossible or unreasonable.”  38 U.S.C. § 4312(e)(2)(B).  This means that an employer may not be able to rely on any bright-line time limit when determining its obligation to reemploy a veteran who suffered a service-related injury, such as PTSD, that makes his or her reporting to work “impossible or unreasonable.”

The Eleventh Circuit Court of Appeals recently found that the district court erred by not considering this extension to the two-year recovery period for a veteran who suffered from PTSD.  The court determined that the veteran’s PTSD and associated depression made it “impossible or unreasonable” for her to report back to work within two years of the end of her deployment, thus implicating 38 U.S.C. § 4312(e)(2)(B).  Accordingly, her claim for reemployment under USERRA was not time-barred.  See Lamar v. Wells Fargo Bank, No. 11-11844, 2014 U.S. App. LEXIS 22773 (11th Cir. Dec. 1, 2014).

An employer’s reemployment obligations under USERRA thus go well beyond seemingly similar reemployment and accommodation obligations under other employment law statutes, such as the Family and Medical Leave Act (FMLA) or Americans with Disabilities Act (ADA).  Employers need to make sure that recruiters, Human Resources, and hiring managers understand the full range of obligations with regard to returning veterans and perhaps consider a coordinated or centralized approach to their reemployment.  In some cases, compliance with the complexities of the statute may require advice of counsel.