As Veterans Day quickly approaches, we should all be reminded of the honor, commitment and sacrifice of those serving, and those who have served in the military. Military veterans are often talented workers with strong work ethics who can bring valuable skills to the workplace.
However, too often veterans encounter difficulties in finding jobs, have disabilities which prevent them from finding work, or experience discrimination and harassment on the job. An employer should be aware of the following laws protecting veterans:
Uniformed Services Employment and Reemployment Rights Act (USERRA)
USERRA broadly prohibits all public and private employers in the US from engaging in discrimination and harassment against an employee or applicant based on that individual’s status as a veteran or armed forces member. USERRA also requires employers to reemploy returning veterans to the same job or to a comparable position) that they had prior to active duty, or would have attained had they not been absent for military service.
Americans with Disabilities Act (ADA)
Sadly, many returning veterans return home with a disability that was incurred in, or aggravated during, military service (such as burns, post-traumatic stress disorder (PTSD) or a traumatic brain injury). According to the EEOC, approximately, 25% of recent veterans report having a service-connected disability as compared to about 13% of all veterans.
Refusing to hire a veteran, terminating a veteran, harassing or demoting a veteran because of his or her disability violates the ADA. If a veteran is able to perform the duties of his or her job with a reasonable accommodation, that accommodation must be provided. The Department of Veterans Affairs also has a number of resources for employers, such as “Vocational Rehabilitation & Employment Service” that helps veterans with disabilities obtain the services that they may need to help return to the workforce sooner.
Family and Medical Leave Act
Some returning veterans need ongoing medical treatment. Under the Family and Medical Leave Act (FMLA), employers must provide eligible employees with up to 26 weeks of unpaid leave to care for injured or ill military members, including a spouse, child, parent and next of kin. This leave can be taken in one chunk or intermittently. Eligible employees may also take up to 26 weeks of leave for a serious medical condition that was incurred on active duty.
State Counterparts to USERRA and the FMLA
A number of state laws mirror USERRA as well as the FMLA to prohibit employment discrimination and harassment based on military status, provide veterans with leave to serve and a right to reemployment after serving in the state guard or National Guard, or provide veterans and military members with time off for ongoing medical treatment. In fact, state legislatures have been expanding such protections to apply not only to members of the National Guard from their state, but to the members of the National Guard of any state.
Time Off for Veterans Day
Employers should be aware that in a handful of states, employers must give qualified veterans time off for Veterans Day. These states include:
- New Hampshire; and
However, such laws generally provide that an employer may deny a leave request if it would cause significant economic or operational disruption, or if the employee is critical to public safety or health. Most of these laws have employee notification requirements and some also require documentation showing the employee is a qualified veteran.
Vietnam Era Veteran’s Readjustment Assistance Act (VEVRAA)
The Vietnam Era Veteran’s Readjustment Act of 1972 (VEVRAA) addresses equal employment opportunities for veterans in the workplace. Under VEVRAA, federal contractors and subcontractors (with contracts in the amount of $100,000 or more, entered into on or after December 1, 2003) are obligated to take positive actions to hire and promote veterans. Such employers must report their hiring efforts and establish an affirmative action plan that addresses veteran employment and provides priority to covered veterans.
Hiring Preferences for Veterans
A number of states have laws in place that mirror VEVRAA and require state or public contractors to establish affirmative action plans and/or provide hiring preferences to veterans. What’s more, a number of states such as Michigan, New Hampshire, Kentucky, Nebraska and Kansas have enacted laws that permit private employers to adopt voluntary veterans preference policies for hiring, promoting or retaining a veteran (or sometimes a veteran’s spouse) over another qualified applicant or employee.
Most of the laws require such policies to be in writing and applied in a uniform manner. The laws explicitly state that providing hiring preferences to a veteran under such a policy will not be a violation of state or local equal employment opportunity laws.
Based on the many laws protecting veterans in the workplace, it is best practice to be proactive and take the following steps:
- Prepare and distribute policies prohibiting discrimination, harassment and retaliation against veterans and outlining veterans’ leave rights. Such policies should be widely distributed and made part of the employee handbook.
- Train supervisors on their obligations to veterans and military families under federal and state laws.
- Attempt to curtail heated conversations on politics and the military which could be seen as creating a hostile work environment.
- Track veteran requests for time off and maintain records regarding whether the request was granted or denied. If an employer denies a request, it should ensure that the denial was based on legitimate nondiscriminatory business reasons.
- Maintain comprehensive records regarding any adverse actions taken against veterans and make sure they are not based on unlawful discrimination.