Written Testimony of George M. Parker, Director, Office of Compliance and Investigations, Veterans Employment and Training Service, U.S. Department of Labor

Meeting of November 16, 2011

Good morning Chairwoman Berrien and commissioners of the Equal Employment Opportunity Commission. My name is Mike Parker, Director of Compliance and Investigations at Veterans Employment and Training Service, more commonly referred to as VETS, US Department of Labor. Accompanying me is Kenan Torrans, my deputy.

VETS proudly serves Veterans and transitioning Service members by providing resources and expertise to assist and prepare them to obtain meaningful careers, maximize their employment opportunities and protect their employment rights. We do this through a variety of nationwide programs that are an integral part of Secretary Solis's vision of "Good Jobs for Everyone."

Based on the purpose of today's meeting, you requested that I discuss specifically the disability provisions under the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) and America's Heroes at Work.

USERRA

USERRA covers three primary areas in protecting individuals' employment and reemployment rights. First, it provides that employers cannot take any adverse action against current or prospective employees due in any part to those individuals' past, present, or future military service, status, or obligations. Second, it provides that returning Service members who otherwise meet the five eligibility criteria must be promptly reinstated in the same positions of status, seniority, and rate of pay they otherwise would have attained had they remained continuously employed. This is commonly referred to as the "escalator principle." The third area of protection involves anti-retaliation which precludes employers from taking any adverse action against any employee for asserting or helping another covered employee assert his or her USERRA rights. USERRA's disability provisions are generally encountered in USERRA's second primary coverage area. This will be our focus of discussion today.

USERRA generally provides that employers will make reasonable efforts to accommodate returning Service members who have incurred an injury or disease in service to successfully perform their civilian jobs. This standard is very similar to that set forth under title I of the Americans with Disabilities Act of 1990 (ADA), except that USERRA's disability provisions are somewhat broader than those under the ADA.

USERRA's disability provisions are broader because the statute does not define "disability", per se. The Department has interpreted the term to mean any injury or disease (to include psychological conditions) that would substantially interfere with an individual's ability to perform the functions of his or her job. Accordingly, if a returning service member requires assistive devices or other technology to perform his or her job, the employer is required to make reasonable efforts to provide such assistance. But the employer is not alone in these efforts. The Department of Veterans Affairs (VA) is also available to assist returning Service members with service-incurred disabilities in providing assistive devices and technology, which relieves employers of some of that burden. The Department's position on that issue is that there are very few disabilities that cannot be overcome through assistive technology.

When Service members return to civilian employment following discharge from active duty, their employers must make all reasonable efforts to assist them in becoming qualified to perform the basic functions of their escalator positions. That standard also applies to Service members returning to work with service-incurred medical illness or injury. If the returning service member is unable to become qualified to perform in his or her escalator position after the employer's reasonable efforts to assist, then the employer must make reasonable efforts to help the service member become qualified to perform the duties of a position that is equivalent in seniority, status, and pay to the escalator position.

In the alternative, the employer must place the service member in a position that is the nearest approximation to the equivalent position, consistent with the particular circumstances of the employee's seniority, status, and pay. Such position could be higher or lower in the organizational structure depending on the circumstances. But there is no provision under the law requiring the employer to create a position if an appropriate position does not exist. The employer would not be required to reemploy the service member upon his or her return if he or she cannot, after reasonable efforts, become qualified for the appropriate reemployment position.

An area of particular concern to the Department and its stakeholders involves situations in which Service members returning with disorders such as post-traumatic stress or traumatic brain injuries that may not be readily apparent when they return to work and are reinstated in their escalator positions. In such cases, once the condition is discovered, the Department interprets the statute as requiring the employer to restart the reemployment process, making reasonable efforts to accommodate the service-incurred disability. At present, it is an open question as to USERRA's applicability in such situations given the length of time between initial reemployment and discovery of the disability. There are concerns that the service-incurred disability may not have become manifest until several years after initial reemployment, raising the question as to whether USERRA or Title I of the ADA should apply.

The Department evaluates such situations on a case-by-case basis, and at present, there is no bright-line test to indicate the applicability of either USERRA or the ADA. With respect to the matter of determining whether or not a medical disorder was or was not incurred or aggravated in service, the lack of an official VA rating decision formally establishing service connection is not considered dispositive. Other indicia of service incurrence might include "line-of-duty" determinations, documentation from the various military physical evaluation boards, or statements from treating physicians attesting to service incurrence.

Congress is very much aware of disability issues among our returning Service members, and now requires the Department to indicate in its USERRA Annual Reports to Congress the numbers of disability-related complaints it receives and investigates each year. Beginning in FY 2008 through FY 2010, 3.6%, 2%, and 2% (respectively) of the cases VETS investigated involved disability-related issues, and in FY 2010, 17 percent of all claimants reported having service-connected disabilities. We understand that Congress has proposed an amendment to USERRA that would extend USERRA protections for employees leaving civilian employment to receive medical treatment for service-connected disabilities for which service connection has been formally established by VA.

The Department of Labor remains committed to protecting the rights of our nation's service men and women, and are likewise committed to ensuring that our wounded and injured veterans have a smooth transition into their civilian careers.

America's Heroes at Work

America's Heroes at Work, is a Department of Labor project focused on an educational campaign targeting employers that provide access to information and tools to help address the employment challenges of returning Service members affected by Traumatic Brain Injury (TBI) and/or Post Traumatic Stress Disorder (PTSD.) It is also designed to help Service members; particularly those returning from Iraq and Afghanistan, and Veterans succeed in the workplace, but are of relevance to other key groups, including first responders, as well. DOL's VETS and Office of Disability Employment Policy (ODEP) manage America's Heroes at Work jointly in collaboration with other federal agencies engaged in TBI and PTSD programs, including the Departments of Defense, Veterans Affairs, Health and Human Services, and Education, the Small Business Administration, the Social Security Administration, and others. The project equips employers and the workforce development system with the tools they need to help returning Service members and Veterans affected by TBI and/or PTSD succeed in the workplace. Due to advances in military medicine and protective equipment, increased numbers of Service members are surviving the injuries they sustain on the battlefield and TBI and PTSD are recognized as the leading injury of Operation Enduring Freedom and Operation Iraqi Freedom. Hundreds of thousands of brave men and women will be coping with the challenges of TBI and PTSD as they reenter civilian life, today and for many years to come. Although their injuries may not be visible, Service members with TBI or PTSD may face difficulties, especially with respect to employment. These individuals may suffer from headaches, vertigo, balance problems, anxiety and sleep disturbance, among other symptoms. They also may have cognitive symptoms including short-term memory deficits, poor concentration and decision-making difficulties. All of these can interfere with everyday activities, inside and outside of the workplace.

For wounded and injured Veterans, employment can play a significant role in the road to recovery. Therefore, to help our returning Service members succeed in the workplace, America's Heroes at Work is engaging in a targeted education campaign designed to increase awareness of TBI and PTSD issues among the workforce system and to educate employers on workplace accommodations they can make for these employees. VETS is committed to assisting Veterans and transitioning Service members find and maintain meaningful employment, as well as protecting their employment rights. We appreciate that the EEOC is holding these meetings that are a tremendous help to increasing awareness of the need and benefits of hiring people with disabilities, especially disabled Veterans.

Thank you very much for having me here today as part of this meeting. I would be happy to answer any questions at the appropriate time.