USERRA and injuries
HRratrace
49 Posts
I am writing about an employee who is out on military leave for the TN National Guard. This employee suffered a back injury during his annual training while on military leave and will be carried on the National Guard payroll until he is released from a medical facility.
Normally persons on active military duty are entitled to up to 5 years leave while on active duty. However, it is my understanding that we can term this particular employee after 2 years of military leave due to the following stipulation stated in the USERRA law of 1994:
Subchapter II - Employment and Reemployment Rights and Limitations; Prohibitions
#4312. Reemployment rights of persons who serve in the uniformed services
(2)(A). A person who is hospitalized for, or convalescing from, and illness or injury incurred in, or aggravated during, the performance of service in the uniformed services shall, at the end of the period that is necessary for the person to recover from such illness or injury, report to the person's employer (in the case of a person described in paragraph (A) or (B) of paragraph (1)) or submit an application for reemployment with such employer (in the case of a person described in subparagraph (C) or (D) of such paragraph). Except as provided in subparagraph (B), such period of recovery may not exceed two years.
(B). Such 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 time period specified in subparagraph (A) impossible or unreasonable.
I just wanted to put this out there to see if I am interpreting this law correctly, and if anyone has encountered this particular situation before. I am not up against a wall yet...the said two-year period does not expire for this individual until May 2004. I am just trying to get all of my ducks in a row before I present this to management.
Thanks in advance for your help!
Kristy
Normally persons on active military duty are entitled to up to 5 years leave while on active duty. However, it is my understanding that we can term this particular employee after 2 years of military leave due to the following stipulation stated in the USERRA law of 1994:
Subchapter II - Employment and Reemployment Rights and Limitations; Prohibitions
#4312. Reemployment rights of persons who serve in the uniformed services
(2)(A). A person who is hospitalized for, or convalescing from, and illness or injury incurred in, or aggravated during, the performance of service in the uniformed services shall, at the end of the period that is necessary for the person to recover from such illness or injury, report to the person's employer (in the case of a person described in paragraph (A) or (B) of paragraph (1)) or submit an application for reemployment with such employer (in the case of a person described in subparagraph (C) or (D) of such paragraph). Except as provided in subparagraph (B), such period of recovery may not exceed two years.
(B). Such 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 time period specified in subparagraph (A) impossible or unreasonable.
I just wanted to put this out there to see if I am interpreting this law correctly, and if anyone has encountered this particular situation before. I am not up against a wall yet...the said two-year period does not expire for this individual until May 2004. I am just trying to get all of my ducks in a row before I present this to management.
Thanks in advance for your help!
Kristy
Comments
After the fact, I wish many times over and over that I had driven the 2 hours to Jackson and met with the office before I made the decision to terminate an employee who voluntarily quit prior to going active duty. While I and the company took the correct course of action at the time, a year later the soldier now released has learned that he left a lot of goodies on the table with a "voluntary Quit". He now lies about the circumstances and who shot who and we the company become the bad guys, and the Department of Defense and the Department of Labor are ready to listen to the soldier regardless of the documentation. I am still waiting on the statue of limitations ax to fall before I declare us a winner. He got an attorney, and the Feds ran for cover, we put the individual back to work, and have not heard another word from him or his attorney. We may some day have to defend our actions in court and it definately makes us walk on EGGSHELLs when dealing with all sorts of HR issues surrounding this individual employee.
Take our advice and go see the experts to confirm you too can read and understand the law and have a record of your actions to surround and protect your decisions. Please keep us posted on your actions! The 101st AB is coming home and we will also be involved with this law once again.
PORK
I FORGOT TO ADD THAT I WILL ALSO TAKE MY TWO CASES TO JACKSON, MS TO SEE THE RIGHT PEOPLE AND I'M A 22 YEAR VETERAN OF THE US ARMY AND THOUGHT I KNEW THE LAW WELL ENOUGH TO FILL OUT THE TERMINATION FORM; I WAS WRONG, I made a note to myself on the form which stated this action might be effected by a military deployment! This note was for who ever was in charge when the soldier came home from the war and as for a re-hire, nonthing more and nothing less, but oh so wrong later on.
"Daddy" Don - I am a newby and have not been on the boards for very long, but I have been reading many postings that you have responded to and have thoroughly appreciated your to the point and straight forward advice.
Pork - Thank you for your thorough input as well. It sounds like you have dealt with this law first hand on several occasions, and I appreciate you sharing your first hand knowledge with me. And...thank you as well for being a Vet and for your service to our country! I appreciate you!
Thanks again for your help gentleman,
Kristy - TN
Pork: You are a jewel and an inspiration. Hang in there with this challenge that has come your way. It's a tragedy to see that a guy who has a solid gold heart and years of military experience has become the target of such an assinine bunch of crap.
Kristy: I fibbed. I was kidding about the gift.
We have someone returning from deployment on Monday who was a pain in the butt to begin with. His "deployment" consisted of sitting on his rear for 18 months at a desk across town at the army base while someone else went overseas.
He called one day and took great pains to let me know that he was entitled to certain things upon his return. I also took great pains to reassure him that I was well aware of the USERRA and what his entitlements were.
Anyway....I have heard through the grapevine that he is saying his feet are bothering him and he might have trouble standing for long periods of time. I am just waiting for him to say he was injured in the military line of duty. (I would say something irreverant here, but I won't).
Anyway....can't wait to welcome this one back!
A great place to start for more specific details about your post is with the Ombudsmen Services Program which provides information, counseling and informal mediation of issues relating to compliance with USERRA. You may contact the program by visiting their website at [url]www.esgr.org[/url].
Veteran’s Employment and Training Services (VETS) of the Department of Labor assist with issues involving USERRA. VETS has a USERRA adviser on its website located at [url]www.dol.gov/vets[/url].
Notably the best continually updated USERRA information website that I have found is [url]www.roa.org[/url], once on the site, click on "Legislative Affairs" then on "Law Review Archive" at the bottom of the drop-down menu.
I hope you find this information helpful.
PORK