The Interconnection between USERRA, FMLA & ADA

USERRA and FMLA and ADA
Elga Lejarza-Penn

The Uniformed Services Employment and Reemployment Rights Act (USERRA) is a federal law that provides reemployment rights for veterans and members of the National Guard and Reserve following qualifying military service. It also prohibits employer discrimination against any person on the basis of that person’s past USERRA-covered service, current military obligations, or intent to join one of the uniformed services.

USERRA requires that servicemembers who conclude their tours of duty and who are reemployed by their civilian employers receive all benefits of employment that they would have obtained if they had been continuously employed, except those benefits that are considered a form of short-term compensation, such as accrued paid vacation. If a service member had been continuously employed, one such benefit to which he or she might have been entitled is leave under the FMLA. The servicemember’s eligibility will depend upon whether the servicemember would have met the employee eligibility requirements outlined above had he or she not performed USERRA-covered service.

If you would like to learn more about the laws surrounding USERRA, FMLA and ADA as well as laws that that do or could impact you as an HR Professional while earning continuing education credits towards your SHRM or HRCI certification please join me at one of my upcoming Certificate Program Trainings on topics such as FMLA, ADA, Pregnancy Discrimination, Employment Laws, Interviewing Skills, OSHA and Sexual Harassment Law and Investigation Techniques.

If you would like to learn more about our SHRM-CP®, SHRM-SCP®, aPHR™, PHR®, SPHR® Exam Prep Courses and Boot Camps please check out our upcoming Exam Prep Trainings and check out our Student Testimonials and Success Stories.

A person reemployed following USERRA-covered service should be given credit for the period of absence from work due to or necessitated by USERRA-covered service towards the months-of-employment eligibility requirement. Each month served performing USERRA-covered service counts as a month actively employed by the employer.

An employee returning from USERRA-covered service must be credited with the hours of service that would have been performed but for the period of absence from work due to or necessitated by USERRA-covered service in determining FMLA eligibility. Accordingly, a person reemployed following USERRA-covered service has the hours that would have been worked for the employer added to any hours actually worked during the previous 12-month period to meet the 1,250 hour requirement.

USERRA also requires the employer to make “reasonable efforts” to accommodate persons with a disability incurred or aggravated during military service. If a person returns from military service and is suffering from a disability that cannot be accommodated by reasonable employer efforts, the employer must reemploy the person in some other position they are qualified to perform and which is the “nearest approximation” of the position to which the person is otherwise entitled, in terms of status and pay, with full seniority.

If you would like to learn more about the laws surrounding USERRA, FMLA and ADA as well as laws that that do or could impact you as an HR Professional while earning continuing education credits towards your SHRM or HRCI certification please join me at one of my upcoming Certificate Program Trainings on topics such as FMLA, ADA, Pregnancy Discrimination, Employment Laws, Interviewing Skills, OSHA and Sexual Harassment Law and Investigation Techniques.

If you would like to learn more about our SHRM-CP®, SHRM-SCP®, aPHR™, PHR®, SPHR® Exam Prep Courses and Boot Camps please check out our upcoming Exam Prep Trainings and check out our Student Testimonials and Success Stories.

Elga Lejarza-Penn, aPHR, PHR, SPHR, SHRM-CP, SHRM-SCP

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