August 15, 2018
Author: Eric R. Miller
Organization: The Kullman Firm

The Family and Medical Leave Act (FMLA), 29 U.S.C. §2601 et seq., applies to employers with fifty or more employees who work twenty or more workweeks in the current or preceding year.

a. To receive FMLA benefits, an employee must have worked for the employer for at least twelve months, not necessarily continuously, and must have worked at least 1,250 hours during the preceding twelve month period. 29 U.S.C. §2611(2)

b. Seasonal or part-time employees who work less than 1,250 hours per year are not covered.

Covered employees are entitled to take up to twelve weeks of leave during any twelve month period for (a) the birth of a child, (b) the adoption or placement of a child with the employee for foster care, (c) to care for a spouse, child, or parent who has a serious health condition, (d) a serious health condition that makes the employee unable to perform the functions of his job, or because of any qualifying exigency arising out of the fact that a spouse, son, daughter or parent of the employee is on active duty in the Armed Forces in support of a contingency operation. 29 U.S.C. §2612(a)(1) (as amended).

An eligible employee who is the spouse, son, daughter, parent or next of kin of a covered servicemember is entitled to 26 workweeks of leave during a 12-month period to care for a covered servicemember with a serious injury or illness received in active duty, that is an injury  or illness that renders the servicemember medically unfit to perform the duties of his/her office, grade, rank or rating. Such leave is only available during a single 12-month period.

An employee is unable to perform the functions of his job when a health care provider determines the employee cannot work at all or cannot perform the essential functions of his job. 29 C.F.R. §825.115.

1. A serious health condition under the FMLA is an illness, injury, or physical or mental condition that involves either \"inpatient care\" or \"continuing treatment\" by a health care provider. 29 U.S.C. §2611(11).
2. Inpatient care includes an overnight stay in a medical facility or any period of incapacity such as an inability to work or perform other regular daily activities caused by the serious health condition. 29 C.F.R. §825.114(a)(1).
   
   
3. Continuing treatment by a health care provider includes any period of incapacity of more than three consecutive calendar days plus either (a) two or more treatments by a health care provider, or (b) one treatment by a health care provider that results in a regimen of continuing treatment under his supervision. 29 C.F.R. §825.114(a)(2).

1. A regimen of continuing treatment includes a course of prescription medicine or therapy requiring special equipment to alleviate the condition. 29 C.F.R. §825.114(b).

1. A regimen of continuing treatment does not include taking over-the-counter medication or other activities, such as bed rest, which an employee can undertake without seeing a physician. Id.

Unless accompanied by further complications, minor illnesses such as the common cold, the flu, upset stomachs, minor ulcers, ordinary headaches (non-migraines), and routine dental or orthodontia problems do not meet the definition of a serious health condition. Such minor illnesses will not qualify as serious health conditions even if they last for more than three days. 29 C.F.R. §825.114(c).

When an employee is entitled to FMLA leave, he may prefer to take it intermittently or ona reduced leave schedule rather than taking off the entire twelve weeks at one time. 29 U.S.C. §2612(b). With intermittent leave, the employee can take leave a few hours or a few days at a time. With a reduced leave schedule, the employee reduces his work hours and works a part-time schedule. An employee's entitlement to intermittent or reduced leave depends upon the reason for the leave. If the employee requests leave for the birth, adoption, or placement of a child with the employee for foster care, the employee may take intermittent or reduced leave only if the employer agrees to it. Id. The employee is entitled to intermittent or reduced leave when the reason for the leave is his own serious health condition or the serious health condition of a spouse, parent, or child, provided the intermittent or reduced leave is medically necessary. Id.

Employees must try to schedule their intermittent or reduced leave so as not to unduly disrupt the employer's business. 29 C.F.R. §825.302(e). If the employee requests intermittent or reduced leave which is foreseeable based on planned medical treatment, the employer can require the employee to transfer temporarily to an alternative position with equivalent pay and benefits that better accommodates intermittent leave or a reduced leave schedule. 29 U.S.C. §2612(b)(2).

The amount of time allowed for leave must correspond to the number of hours in the employee's normal workweek. Thus, if an employee normally works fifty hours per week, he would be entitled to twelve fifty-hour weeks of leave, or 600 hours of intermittent leave. 29 C.F.R. §825.205(b).

National Defense Authorization Act
On January 28, 2008, President Bush signed into law H.R. 4986, the National Defense Authorization Act for FY 2008, which amends the Family and Medical Leave Act of 1993. It provides additional leave entitlements for “covered servicemembers” or eligible employees related to “covered servicemembers.”

Active Duty Leave. An eligible employee is entitled to 12 workweeks of leave because of any qualifying exigency arising out of the fact that a spouse, son, daughter or parent of the employee is on active duty in the Armed Forces in support of a contingency operation. An employee shall provide notice to the employer that is reasonable and practicable for any leave necessitated by active duty that is foreseeable.

Care for Injured Servicemember Leave. An eligible employee who is the spouse, son, daughter, parent or next of kin of a covered servicemember is entitled to 26 workweeks of leave during a 12-month period to care for a covered servicemember with a serious injury or illness received in active duty, that is an injury or illness that renders the servicemember medically unfit to perform the duties of his/her office, grade, rank or rating. Such leave is only available during a single 12-month period. The 26-workweek period for servicemembers includes the 12 workweeks previously available under the FMLA, but the amendment does not limit the 12 workweeks available during any other 12-month period for other types of leave. A husband and wife of the same employer are limited to a combined 26 workweeks in a 12-month period under the same rules affecting other employees who are eligible for 12 weeks of leave.

On November 17, 2008, the U. S. Department of Labor issued its regulations regarding the FMLA. Following is a summary of the more pertinent changes in the regulations.

12 Months of Employment. The regulations clarify that should there be a break in employment of 5 years or longer, then the 12-months of non-continuous employment rule is not applicable and an employee is ineligible for FMLA-type leave; provided the following exceptions apply: military leaves, written agreement, collective bargaining agreement, or voluntary recognition by the employer. 29 C.F.R. §825.110(b).

Substitution of Paid Leave. The Department also clarified the ability to substitute paid leaves (sick leave, vacation, family leave and personal leave) for unpaid FMLA leave to take into account the multipurpose “paid time off” or PTO offered by many employers. The references to the individual types of leave have been deleted in §825.207, and now any “paid leave” may be substituted for any FMLA-type leave.

Bonuses. An employer can disqualify or deny an employee on FMLA leave from receiving an award or bonus predicated on achievement of a goal where the employee fails to achieve that goal due to the FMLA absence, as long as the same is true for any employee on a non-FMLA absence. 29 C.F.R. §825.215(c).

Holidays. If an employee needs less than a full week of leave, the hours that the employee does not work on account of a holiday cannot be counted against the employee’s FMLA leave entitlement. If, however, the employee needs a full week and a holiday occurs in that week, the hours the employee does not work on the holiday can count against the employee’s FMLA leave entitlement. 29 C.F.R. §825.205.

Light Duty. The regulations delete the last sentence in §825.220(d) to clarify that if an employee is voluntarily performing light duty at the request of the employer instead of taking FMLA leave, the employee is entitled to reinstatement to his/her former position and the full 12 weeks of leave entitlement under the FMLA. An employee cannot have his/her leave diminished by working in a light duty position, thus overruling Roberts v. Owens-Illinois, Inc., 2004 WL 1087355 (S.D. Ind. 2004) and Artis v. Palos Community Hospital, 2004 WL 2125414 (N.D. Ill. 2004).

Intermittent/Reduced Leave/Leave Increments. The DOL did not adopt the many suggestions from employers that intermittent leave be required to be taken in larger increments (e.g., a four-hour block of time). The new regulations clarify that employers must account for FMLA leave in increments no greater than the shortest period of time the employer uses to track other forms of leave (as opposed the shortest increments tracked on the employer’s payroll system), provided the increment used for tracking FMLA leave is not greater than one hour.

Notice. Section 825.300(a)(3) has been amended to require that each covered employer with eligible employees must distribute the general notice set forth in §825.300(a) to each employee by either including the notice in a handbook or by distributing a copy to each employee at least once per year in either paper or electronic format. Further, the employer has five (5) business days of receiving sufficient information from the employee to designate the leave as FMLA leave (a change from the previous requirement of two (2) days). 29 C.F.R. § 825.300(b)(1) and (c)(1).

Serious Health Condition. The DOL has made three modifications to the regulatory definition of “serious health condition.” With respect to conditions that involve more than three consecutive days of incapacity plus two visits to a healthcare provider, the new regulations specify that the first visit must take place within seven days of the first day of incapacity, and that both visits must occur within 30 days of the beginning of the period of incapacity. As for conditions that involve more than three consecutive days of incapacity plus one visit to a healthcare provider and a regimen of continuing treatment, the DOL similarly requires the visit to a healthcare provider to take place within the first seven days of incapacity. Lastly, the new regulations define “periodic visits” for chronic serious health conditions as at least two visits to a healthcare provider per year.

Release of FMLA Claims. The final regulations settle a dispute among courts regarding the ability of employees to waive their rights under the FMLA, stating that employees may voluntarily release their past FMLA claims without court or DOL approval. As a result, employers can include releases of past FMLA claims in severance and settlement agreements.

Employer Notice Obligations. The new regulations clarify and strengthen employer notice requirements in order to better inform employees regarding their FMLA rights and obligations. For example, the new regulations require employers to provide employees with a general notice about the FMLA upon hire (which can be done through a handbook), an eligibility notice, a notice of rights and responsibilities, and a designation notice. To help ensure that employers are able to comply with these requirements, the new regulations extend the time period for employers to provide various notices from two business days to five business days.

Employee Notice Requirements. Under the new regulations, an employee needing FMLA leave must follow the employer's usual and customary call-in procedures for reporting an absence, unless there are unusual circumstances. This is a change from the prior regulations, which allowed some employees to provide notice to an employer of the need for FMLA leave up to two business days after an absence, even if they could have provided notice more quickly.

New Medical Certification Forms. As part of the new regulations, the DOL has created several new medical certification forms, one for use in considering an employee's own serious health condition and another for use when an employee requests leave to care for a family member with a serious health condition. In addition, there is a new medical certification form for use in obtaining certification of covered servicemember leave.

Notification of Certification Deficiencies. The regulations require employers to notify employees in writing if the employer determines that a medical certification is incomplete or insufficient. The employer must state in writing what additional information is necessary and give the employee seven days to cure the deficiency. If an employee does not cure the deficiency, the employer may deny FMLA leave.

Clarification and Authentication of Medical Certification Forms. The new regulations provide that an employer may contact an employee's health care provider for purposes of clarification and/or authentication of the medical certification after the employer has given the employee an opportunity to cure any deficiencies. An employer must use a health care provider, human resources professional, leave administrator or management official to make such contact and may not allow the employee's direct supervisor to contact the health care provider.

Employers may not ask health care providers for additional information beyond that required by the certification form. In addition, where the health care provider sharing the health information of an employee with an employer is covered by the Health Insurance Portability and Accountability Act (HIPAA), the employer must have authorization from the employee in compliance with HIPAA.

However, if the employee refuses to provide the employer with authorization and does not otherwise clarify the certification, the employer may deny the FMLA leave if the certification form is unclear.

Prior Employment Counts for Eligibility. Under the regulations, employers must count an employee's non-consecutive prior service with the employer unless the break in service was for seven years or more. In limited circumstances, such as when the employee's break in service was due to military service, the employer must count prior employment periods preceding a break in service of more than seven years.

Revised FMLA Regulations, Poster, and Forms Took Effect Friday, March 8, 2013

On February 6, 2013, the DOL published a final rule which expands and further defines the coverage of the FMLA, and requires employers to replace their current FMLA poster with a revised poster. In addition, the DOL has created a new FMLA form covering situations involving military veterans, and revised most of its existing FMLA certification, notification, and designation forms.

Once implemented, the final rule will result in modifications to certain portions of the existing FMLA regulations. Most of these changes result from the National Defense Authorization Act of Fiscal Year 2010, and include provisions implementing the major components of that law. In particular, the following matters are addressed in the revised regulations:

1. FMLA Caregiver Leave is expanded to include injuries and illnesses that existed prior to the Service member’s active duty, but were activated during the course of active duty.
2. FMLA Caregiver Leave is also expanded to cover family members of certain veterans with serious injuries or illnesses.
3. Specific definitions are provided for conditions that constitute a serious injury or illness for a Service member or veteran. The new regulations will also define who is a covered veteran, and allow private physicians outside of the military healthcare system to certify a serious injury or illness.
4. Qualifying Exigency Leave for eligible family members is increased from five (5) days to a maximum of fifteen (15) days.
5. Qualifying Exigency Leave is expanded to include eligible employees with family members serving in the U.S. Armed Forces outside of the United States.
6. Parental Care is added as a qualifying exigency and new definitions are added concerning what constitutes a qualifying exigency.
7. Clarifications are added on the calculation both of intermittent leave and reduced leave schedules.

The new regulations also implement the requirements of the Airline Flight Crew Technical Corrections Act. As its name suggests, this law establishes eligibility and calculation requirements for airline flight crew members, whose work schedules substantially deviate from those of most other occupations.

In addition to revising the FMLA poster, the DOL has created a new form designated as WH-385-V, Certification for Serious Injury or Illness of a Veteran for Military Caregiver Leave. It has also revised most of the existing FMLA certification, notification, and designation forms (specifically, WH-380-E, WH-380-F, WH-381, WH-382, WH-384, and WH-385). Copies of the revised forms can be downloaded from the DOL website at www.dol.gov/whd/fmla/2013rule/militaryforms.htm. Copies of the revised poster can be downloaded at http://www.dol.gov/whd/regs/compliance/posters/fmlaen.pdf.

Interaction with Other Laws Light Duty Defined

The term “light duty” refers to work that is physically or mentally less demanding than an employee’s regular job duties. Typically, light duty jobs are created in a number of different ways such as changing the essential function of the regular job, creating entirely new positions that are reserved for employees with disabilities, or reserving less demanding jobs for those with disabilities.

The ADA does not require an employer to “create” a light duty job for an occupationally or nonoccupationally disabled employee, regardless of whether the employee’s disability is a result of a work related injury. An employer may choose to create a light duty job for employees with occupational disabilities and not create light-duty job for employees with non-occupational disabilities. While the employer is not obligated to create a light-duty job for an employee with a non-occupationally related disability, an employer would still be required to make reasonable accommodations required by the ADA “even if the resulting job duties resemble a light-duty position.

If an employer reassigns an employee to a light duty position, he is free to designate the light duty position as temporary or permanent. If the employer decides the light duty position is temporary, the reassignment can be temporary. The employer does not have to convert the temporary light duty position into a permanent position. If there are no vacant light duty positions, the employer is not required to create one as an accommodation to a disabled employee. Hunt v. Boyd Gaming Corp., 1997 U.S. Dist. LEXIS 9361 (E.D. La. 1997).

Gruber v. Entergy Corporation:

For example, in Gruber v. Entergy Corporation, 1997 U.S. Dist. LEXIS 3591 (E.D. La. March 24, 1997), the plaintiff suffered from major depressive disorder. He took a two-month leave of absence for psychiatric care. Upon returning, the plaintiff presented a medical certificate restricting him to light duty for six weeks. Pursuant to this restriction, the plaintiff requested a transfer to a less stressful position. The employer did not have any “light duty” jobs, so he sent the employee back home. After plaintiff had been out on leave for five months, the doctor released him to return to normal duty, and the plaintiff returned to work. Id.

The plaintiff worked for the next five months and was terminated for poor performance. The plaintiff sued under the ADA claiming the employer failed to reasonably accommodate this mental limitation by not providing him with a less stressful position. The Court said that the employer reasonably accommodated the plaintiff by allowing a flexible leave arrangement. The employer let the plaintiff stay out on paid leave for five months. The court concluded by saying the employer did not have to provide the employee with the requested accommodation of transferring to another position. Id.

Although an employer should consider the employee’s desired accommodation, he is free to choose an effective accommodation that is less expensive or easier to provide. The employee can refuse the offered accommodation. If the employee refuses the accommodation and cannot perform the job without it, he is not a “qualified individual” and does not enjoy ADA coverage.

FMLA & Light Duty

Under the FMLA, returning employees are entitled to the same or an equivalent position as they had prior to taking leave. Since light duty jobs are usually much different from an employee’s normal job, an employer cannot require an employee to take a light duty position upon returning from FMLA leave. If the employee returns to work within the twelve weeks of FMLA leave but cannot do the “same or equivalent position,” he is entitled to the full FMLA leave. B. DESONZA, The Light Duty Dilemma, 12 THE LABOR LAWYER 247, 249 (1996).

However, an employee can take an uncoerced light duty position while recovering from a serious health condition, provided acceptance is not made a condition of employment. If an employee accepts a light duty position, he continues to have the right to be restored to his same or an equivalent position until twelve weeks have passed, determined by counting both the amount of leave taken and the period of light duty. The period of light duty does not count against the employee’s overall twelve-week entitlement. Lastly, an employer cannot force an employee to take a light duty job, i.e., a reasonable accommodation, in lieu of taking leave. B. DESONZA, The Light Duty Dilemma, 12 THE LABOR LAWYER 247, 249 (1996); 42 U.S.C. §12,201 (the ADA shall not be construed to invalidate remedies of other laws of greater or equal protection).

Claims of Permanent and Total Disability

Employees sometimes try to take two bites at the apple by claiming to be totally disabled to receive workers' compensation or Social Security benefits and claiming they are able to return to work and are entitled to reasonable accommodations. A growing number of such claims backfired against employees as some courts held that employees who claim to be totally disabled when applying for disability benefits cannot later claim to be qualified individuals under the ADA.

For example, in Cline v. Western Horseman, Inc., 922 F. Supp. 442 (D. Colo. 1996), Cline had worked for her employer as a secretary and data entry clerk for seven years when she began experiencing pain in her hands and arms which affected her ability to work. Pursuant to her doctor's advice, Cline took off work for one week. When her employer fired her for not coming to work, Cline sued for violations of the ADA. After she was terminated, Cline claimed she was totally disabled and received long term workers' compensation and Social Security disability benefits. The court held that Cline could not be disabled for purposes of Social Security and workers' compensation and still be able to perform the essential functions of her job under the ADA. Thus, Cline was estopped from claiming to be a qualified individual under the ADA because of her prior claim of being totally disabled. See also, Johnson v. ExxonMobil Corp., 426 F.3d 887 (7th Cir. 2005) (affirming the court’s grant of summary judgment against ADA and ADEA claims of plaintiff who applied for and was granted SSA benefits); Opsteen v. Keller Struc., Inc., 408 F.3d 390 (7th Cir. 2005) (concluding that plaintiff’s representation of himself as mentally incompetent to obtain disability benefits but mentally capable to secure employment was sort of a factual contradiction that Supreme Court precedent forbids); Cheatwood v. Roanoke Indus., 891 F. Supp. 1528 (N.D. Ala. 1995); Reigel v. Kaiser Foundation, 859 F. Supp. 963 (E.D. N.C. 1994) (\"Plaintiff . . . cannot speak out of both sides of her mouth”).

Some jurisdictions refused to estop plaintiffs who receive workers' compensation or Social Security disability benefits from also pursuing an ADA claim. See e.g,. Dockery v. North Shore Med. Ctr., 909 F. Supp. 1550 (S.D. Fla. 1995) (a plaintiff should not be estopped as a matter of law from asserting an ADA claim simply because he received workers' compensation or SSA benefits); Marvello v. Chemical Bank, 923 F. Supp. 487 (S.D. N.Y. 1996) (plaintiff's condition may have changed since he claimed total disability, thus he is not estopped from claiming to be qualified under the ADA).

In May 1999, the United States Supreme Court addressed these issues to resolve the split among the courts. The Court of Appeals for the Fifth Circuit had barred the plaintiff from pursuing her ADA claim because she sought Social Security disability benefits and represented to the Social Security Administration that she was totally disabled. Cleveland v. Policy Management Systems Corp., 195 F.3d 803 (5th Cir. 1997). The Supreme Court found that the claim for Social Security disability benefits does not automatically estop a recipient who contends she is too disabled to work from pursuing her ADA claim. Cleveland v. Policy Management 10 Systems Corp., 526 U.S. (1999) (a SDDI claim and an ADA claim can comfortably exist side by side). A recipient, however, must explain why her contention is consistent with her ADA claim that she could perform the essential functions of her job, at least with an accommodation. Id.

Following the Cleveland decision in EEOC v. Stowe-Pharr Mills Inc., No. 99-1040 (4^th Cir. June 19, 2000), the Fourth Circuit held that contradictory statements in a SSDI claim and an ADA claim did not bar suit as long as the plaintiff can offer a reasonable explanation for the contradiction. The plaintiff explained that she told the SSA intake officer that she could work with an accommodation, but on his advice indicated on the application she was unable to work. Id.

The Fifth Circuit has echoed these holdings in Reed v. Petroleum Helicopters, Inc., 218 F.3d 477 (5th Cir. 2000). On Reed’s application for disability benefits, the plaintiff claimed she could not perform “all of the physical demands necessary to fly a helicopter.” The plaintiff failed to explain “how her statements were consistent with her claim that she could safely fly a helicopter, pass the necessary physical exams, and obtain the required certification, with or without accommodations.” Thus, the court held that she could not, then, challenge her termination under the ADA. See also, Giles v. GE, 245 F.3d 474 (5th Cir. 2001) (the court determined that the plaintiff was not judicially stopped from making his disability claim, where in his application for SSDI benefits he made “no specific assertion negating his explanation that he could perform his job with reasonable accommodations.”)

Obtaining the Right Amount of Information

When the disability or the need for accommodation is not obvious, the employer may ask the individual for reasonable documentation about the disability and functional limitations. An employer cannot ask for documentation when: (1) both the disability and the need for reasonable accommodation are obvious, or (2) the individual has already provided the employer with sufficient information to substantiate an ADA disability and the reasonable accommodation requested.

Reasonable documentation means that the employer may require only the documentation that is needed to establish that a person has an ADA disability and that the disability requires reasonable accommodation. Thus, an employer cannot ask for documentation unrelated to these issues. In most situations, therefore, an employer cannot request a person's complete medical records because they are likely to contain information unrelated to the disability at issue and the need for accommodation.

In requesting documentation, employers should specify what types of information they are seeking regarding the disability, its functional limitations, and the need for reasonable accommodation. Employers will not violate the ADA by asking for the information set out in the FMLA medical certification regulations and form because the requested information relates only to the serious health condition and address the reasons why time off from work may be required, which are “job-related” inquiries that are “consistent with business necessity.

An employer may require that the documentation come from an appropriate health care or rehabilitation professional. Whether the selected professional is appropriate will depend on the disability and the type of functional limitation it imposes. The ADA does not prevent an employer from requiring an employee to go to an appropriate health professional of the employer's choice if the individual provides insufficient information from his or her treating physician (or other health care professional). Moreover, under the ADA, the employer may require the employee to sign a limited release allowing the employer to submit a list of specific questions to the health care or vocational professional.

Mastering the Definitions:
Worker’s Comp and FMLA with the ADA

Whenever an employee is sick or injured, a prudent employer must determine which statutes apply to satisfy his obligations under the law. An employer should pay close attention to the definitions in the various statutes to determine which protection an injured or sick employee may receive.

First, an employer should note that an employee with a disability as defined by the workers' compensation statutes may not necessarily have a disability covered by the ADA. Many on-the-job injuries cause temporary physical or mental impairments which heal relatively quickly and have little or no long-term impact. Such conditions often are not severe enough to substantially limit a major life activity and invoke the ADA. Furthermore, simply because an employee receives a compensable injury under the workers' compensation laws does not mean he has a \"record of a disability\" (one of the three definitions of disabled under the ADA).

If an employee suffers a compensable injury which does not substantially limit a major life activity, an employer should take care to avoid regarding the employee as being substantially limited in a major life activity. Otherwise, the employee can receive ADA protection under the \"regarded as\" definition of a disability. The employer could violate the ADA if he takes some adverse employment action based on his perception that the employee was disabled, provided the employee was otherwise qualified for the job.

Second, an on-the-job injury covered by workers' compensation may qualify as a serious health condition under the FMLA and entitle the employee to FMLA leave. Failure to notify the employee of his rights under the FMLA will prevent the employer from counting the time off for workers' compensation as FMLA leave. 29 C.F.R. §825.301. This failure can increase the amount of overall leave the employee may take, i.e., workers' compensation time plus the twelve weeks of FMLA leave to which the employee may be entitled. However, failure to date the leave notice is not detrimental to the ability to count the leave.

Third, a serious health condition under the FMLA is not necessarily an ADA disability. For example, surgery in a hospital for a condition which does not substantially limit a major life activity will entitle the employee to FMLA leave, but the employee will not be covered by the ADA. The employee may take up to twelve weeks of leave, but he is not entitled to reasonable accommodations upon return to work. Employers should avoid regarding someone with a serious health condition as being disabled, or else the employee may receive ADA protection under the \"regarded as\" definition of a disability.

While a serious health condition is not necessarily a disability, some conditions will qualify as both, entitling the employee to the protection of both statutes. For example, cancer and serious strokes may qualify as both. Whenever both statutes apply, the employer is required to follow whichever statute provides the more generous benefit to the employee. 29 C.F.R. §825.702(a).

Fourth, an employee may have a disability under the ADA but not have a serious health condition under the FMLA. This is particularly true where the employee is not receiving continuing treatment or inpatient care. Although it is no easy task, employers should master the multitude of definitions in the FMLA and ADA to determine their obligations under the statutes, comply with the requirements, and protect themselves from potential liability.

An employee returning from FMLA leave must be restored to either the same position he held prior to the leave or an equivalent position. An equivalent position is one which is virtually identical to the employee's prior position regarding pay, benefits, and working conditions. An equivalent position must also involve the same or substantially similar duties and responsibilities and must require substantially similar skill and authority. Furthermore, the equivalent position must be in the same geographical area and involve either the same shift or an equivalent work schedule.

However, if the returning employee is unable to perform the essential functions of the position, the employer does not have to reinstate him. The FMLA does not require an employer to reinstate an employee who is medically unable to do his job. Likewise, the FMLA does not

require the employer to modify the job or reassign the employee to a new position. An employer does not have to reinstate an employee if the employee's position was eliminated while he was on leave as part of reorganization or some other reason independent of the FMLA leave. The employer may terminate an employee on leave for any reason that he would terminate other employees. The employer may also refuse to reinstate an employee who gives notice to the employer during the leave period that he does not intend to return to work after the leave period is over.

Under the ADA, a qualified employee must be returned to the same position he had prior to the disability leave. If accommodations are necessary for the employee to perform the essential functions of his prior job, the employer must try to accommodate the employee. As a reasonable accommodation, the employer may be required to reallocate the marginal, non-essential functions the employee cannot perform because of his disability.

Also, the FMLA allows for an employer to request medical certification from an employee returning from FMLA leave. 29 C.F.R. §825.310. Care should be taken to avoid running afoul of the ADA by insuring that the certification complies with the ADA’s requirement that a fitness for duty examination be job-related. B. DESONZA, The Light Duty Dilemma, 12 THE LABOR LAWYER 247, 250 (1996).

In Sullivan v. River Valley School District, 197 F.3d 804 (6th Cir. 1999), the court held that a request that a teacher undergo mental and physical fitness-for-duty examination after he allegedly exhibited odd behavior did not violate the ADA. His behavior and advice from an outside health professional had given the school district reason to believe that an examination was needed to determine whether the teacher could perform the essential functions of the job.

The employer is not required to eliminate or reallocate the essential functions of the position. If accommodation within the employee's original position is not possible or would impose an undue hardship on the employer, the employer should consider reassigning the employee to a vacant equivalent position. If no equivalent positions are available, the employer should consider reassigning the employee to a lower level or light duty position (see below for more information on light duty positions). However, the employer is not required to create a new position or bump another employee from his position as a reasonable accommodation. For example, in Grubb v. Southwest Airlines, 296 Fed. Appx. 383 (5th Cir. 2008), the employee, who worked as a flight instructor, was discharged after following asleep on the job on several occasions. The employee argued that she was discriminated against because his sleep apnea was not accommodated. The Court of Appeals held that the employee could not perform his job in a manner that the employer could reasonably accommodate, given that his position required him to be conscious and alert. Requiring the employee to schedule the employee for afternoon shifts placed an undue burden on the employer and the employee’s co-workers. See also, Rogers v. International Marine Terminals, Inc., 87 F. 3d 755 (5th Cir. 1996) (employer is not required to wait indefinitely for an employee's condition to be corrected).

Techniques for Managing the Interplay

1. Neutral leave policies which discipline employees based simply on the number of absences without regard to the reason for the absence should be revised so employers will not inadvertently violate the ADA or FMLA. Absences while on FMLA leave and unpaid leave granted as a reasonable accommodation under the ADA cannot be counted against employees under such policies. However, employers should note that indefinite leave is not required as a reasonable accommodation.

1. Regular attendance has been held to be an essential job function. Employees who cannot meet attendance requirements may not be “qualified individuals” under the ADA. Thus, they may not be entitled to ADA protection. Such a determination will be factually driven.

1. When faced with a request for FMLA leave, the employer should quickly determine whether the employee is eligible for the requested leave. If the employer confirms an employee’s eligibility when the leave is requested, he cannot later challenge the employee's eligibility. For example, if the employer grants the requested leave and subsequently determines that the employee has not worked the required 1,250 hours in the year before the leave, the employer must allow the employee to take the FMLA leave. He cannot subsequently challenge the employee’s right to the leave because he has already confirmed the employee’s eligibility, albeit incorrectly.

1. Employers should pay close attention to the notice requirements of the FMLA. For example, if the employer fails to give notice to an employee out on workers' compensation that his time off will be counted as FMLA leave, the employer cannot count the time off against the employee's twelve week entitlement under the FMLA. Employers should also be aware of the employee's duty to give notice. If the need for FMLA leave is foreseeable, the employee has to give notice to the employer at least 30 days in advance. If the employee fails to give such notice and cannot provide a reasonable excuse for the delay, the employer can deny the requested leave until at least 30 days after the date the employee did notify the employer. If the need for leave was not foreseeable, the employee is still required to give notice as soon as practicable. See, e.g., Reich v. Midwest Plastic Eng., 1995 WL 514851 (W.D. Mich. 1995) (court found that employee away from work for a serious health condition could have notified her employer of the need for FMLA leave on a certain day but did not notify employer until 10 days later. Thus, employee did not provide notice as soon as was practicable, and employer could terminate her without violating FMLA).
2. If further information is needed to determine whether an employee's request for leave qualifies for FMLA leave, it is the employer's responsibility to inquire further. See, e.g., Brannon v. Oshkosh B’ Gosh, Inc., 897 F. Supp. 1028 (M.D. Tenn. 1995) (employee told employer she would miss work because her daughter was sick. The employer counted the leave against the employee without inquiring further to determine whether the leave was protected under the FMLA -- as time off to care for a child with a serious health condition. In counting the leave against the employee without inquiring further when given some notice, the employer violated the FMLA.)
3. Whenever an employee takes workers’ compensation time off because of an on-the-job injury, employers should quickly determine whether the condition qualifies as a serious health condition under the FMLA. If so, employers can require that the workers' compensation time off be counted as FMLA leave, and employers should promptly notify employees of their intentions to count the leave against the employee's twelve week entitlement.
4. If the employer chooses to have the workers’ compensation and FMLA leave run concurrently, the employer’s obligation under the FMLA to reinstate the employee to his same or an equivalent position ceases after twelve weeks of leave. If the employee is unable to return to work after twelve weeks, the employee may not have FMLA protection, and he must look to the workers’ compensation statutes or the ADA for protection.
5. Employers should take certain steps to prevent workers’ compensation claims from turning into ADA charges. Employers should communicate with employees concerning the benefits granted by workers’ compensation and any corresponding workers’ compensation policies regarding return to work. Upon the employee's return, employers should determine the employee's ability to perform the essential functions of his prior job and attempt to accommodate the injured employee in his prior position if necessary. Employers should consider various possible reasonable accommodations including transfer to vacant positions, reassignment of essential functions, or light duty. Otherwise, employers risk liability under the ADA for failure to accommodate disabled employees.
   
6. Communication with disabled employees concerning reasonable accommodations is particularly important if an employer wishes to claim he acted in good faith in attempting to accommodate the employee. This can be a defense to compensatory and punitive damages under the ADA.

1. Employers should take care not to treat or perceive an employee who suffers a compensable injury under workers’ compensation as though he has a substantially limiting disability under the ADA. Otherwise, an ordinary workers’ compensation claimant may have a claim under the ADA’s “regarded as” definition of a disability.
   
2. Employers should consider obtaining a waiver of ADA claims as part of an employee's workers’ compensation settlement. This issue has not been definitively addressed by the courts, but it is possible that a knowing and voluntary waiver could be effective. See, e.g., Wittorf v. Shell Oil Co., 1994 WL 150810 (E.D. La. 1994) (stating that a knowing and voluntary standard should apply to waivers of ADA claims); Wisch v. Whirlpool Corp., 927 F. Supp. 1092 (N.D. Ill. 1996) (workers’ compensation settlement which did not mention ADA claims could not be knowing and voluntary, and there was ambiguity as to whether plaintiff intended to release ADA claim).
3. Employers cannot ask applicants about prior workers’ compensation claims because to do so would be an impermissible medical examination under the ADA. See EEOC ENFORCEMENT GUIDANCE: WORKERS’ COMPENSATION AND THE ADA, QUES. 4 (1996).
4. The ADA’s confidentiality requirements apply to medical information regarding an employee’s FMLA leave or occupational injury or workers’ compensation claim. Id at Ques. 10.
   
5. If sued by an employee who claimed to be totally disabled in order to receive workers' compensation or SSA disability benefits, employers should argue that such employee is estopped from claiming he is a qualified individual under the ADA.

UNIFORMED SERVICES EMPLOYMENT & REEMPLOYMENT RIGHTS ACT OF 1994

The Uniformed Services Employment & Reemployment Rights Act of 1994 (\"USERRA\"), 38 U.S.C. §4301, et seq., was enacted to \"encourage noncareer [military) service to minimize the disruption to the lives of [employees in military service] . . . as well as to their employers, their fellow employees, and their communities . . . and to prohibit discrimination.” Congress directed the federal government to be a model employer in carrying out USERRA’s provisions. 38 U.S.C. §4301.

Effective Date
Most provisions of USERRA became effective on October 13, 1994. Most reemployments were subject to the prior law during a sixty-day transition period until December 12, 1994. The provisions relative to reemployment of disabled persons were, however, made retroactive to August 1, 1994.

Interaction with Other Laws
USERRA does not supersede any federal, state or local law, contract, agreement, policy, plan, practice or other right or benefit that is more beneficial or additional to USERRA rights. Any state or local law, contract, agreement, policy, plan, practice or other right or benefit that reduces, limits, eliminates or imposes additional prerequisites upon the exercise of USERRA rights is superseded. 38 U.S.C. §4302.

Coverage
A.Employer: Any person, institution, organization or other entity that pays salary or wages for work performed or that has control over employment opportunities, including . . .(i) a person, institution, organization or other entity to whom the employer has delegated the performance of employment-related responsibilities . . .* * *

(iv) any successor in interest to a person, institution, organization or other entity referred to in this subparagraph; and
(v) any person, institution, organization or other entity that has denied initial employment. . . . 38 U.S.C. §4303(4)(A).

B. Eligible & Qualified Employee

1. Employee: Any person employed by an employer. 38 U.S.C. §4303(3).
2. Qualified: able to perform the essential tasks of an employment position. 38 U.S.C. §4303(9).
3. Eligible: USERRA rights belong to a “person who is a member of, applies to be a member of, performs, has performed, applies to perform, or has an obligation to perform service in a uniformed service.” 38 U.S.C. §4311(a).
4. Termination of Eligibility: A person’s entitlement to USERRA benefits by reason of service in the uniformed services terminates upon:

(1) a separation of such person from such uniformed service with a dishonourable or bad conduct discharge.
(2) a separation of such person from such uniformed service under other than honourable conditions, as characterized pursuant to regulations prescribed by the Secretary concerned@;
(3) a separation of such person from such uniformed service due to a sentence of a general court-martial; or
(4) a separation of such person from such uniformed service on the President’s order dropping from the service rolls a commissioned officer who has been absent without authority for at least three months or who has been sentenced to confinement in a federal or state penitentiary or correctional facility after being found guilty of an offense by a court other than a court-martial and whose sentence has become final. 38 U.S.C. §4304.
(5) Service Obligation: A person engages in service in the uniformed services through “the performance of duty on a voluntary or involuntary basis in a uniformed service under competent authority and included active duty, active duty for training, initial active duty for training, inactive duty training, full-time National Guard duty, and period for which a person is absent . . . for the purpose of [a fitness-for-duty] examination.” 38 U.S.C. §4303(13).
(6) Uniformed Service: The Armed Forces (Army, Navy, Air Force, Marines) the Army National Guard, the Air National Guard, the commissioned corps of the Public Health Service, and any other category of persons designated by the President in a time of war or national emergency. 38 U.S.C. §4303(16).
(7) Temporary Employees: Employees whose employment is “for a brief, nonrecurrent period and there is no reasonable expectation that such employment will continue indefinitely or for a significant period.” See 38 U.S.C. §4312(d)(1)(C).

Rights under USERRA

A. Non-discrimination in Employment: A qualified and eligible employee “shall not be denied initial employment, reemployment, retention in employment, promotion or any benefit of employment by an employer” on basis of uniformed service membership, performance, application or obligation. 38 U.S.C. §4311(a) Discrimination is presumed when service membership, performance, application or obligation is “a motivating factor in the employer’s action,” unless the employer proves the same action would have been taken in the absence of the service membership, performance, application or obligation. 38 U.S.C. §4311(c)(1).

Temporary Employees are protected from discrimination. 38 U.S.C. §4311(d).

B. No Retaliation: An employer may not discriminate in employment against or take any adverse employment action against any person because such person:

(1) has taken an action to enforce a protection afforded any person by [USERRA],
(2) has testified or otherwise made a statement in or in connection with an investigation under [USERRA],
(3) has assisted or otherwise participated in an investigation under [USERRA], or
(4) has exercised a right provided for in [USERRA].

The prohibition in this subsection shall apply with respect to a person regardless of whether that person has performed service in the uniformed services. 38 U.S.C. §4311(b). Retaliation is presumed when the action taken to enforce rights, testimony or provision of a statement, assistance or participation in an investigation or the exercise of rights is “a motivating factor in the employer’s action,” unless the employer proves the same action would have been taken in the absence of these activities. 38 U.S.C. §4311(c)(2).

Temporary Employees are protected from retaliation. 38 U.S.C. §4311(d).

C. Reemployment Opportunities

1. Entitlement: An employee is entitled to reemployment rights and benefits if: a. he or she (or proper military officer for whom service is performed) gave advance written or verbal notice of such service from employment, unless precluded by military necessity as determined by the Secretary of Defense or was impossible or unreasonable; the cumulative length of all periods of service is no more than five (5) years, excluding any service:

(1) beyond 5 years required to complete initial obligation;
(2) before end of 5 years while unable to get release orders through no fault of employee;
(3) required for training - i.e., National Guard and Ready Reserve weekend and annual duty and any additional duty certified by Secretary of Defense as necessary for training; or
(4) on active duty during war, national emergency, operational or critical missions, National Guard activation, or retention beyond or recall from retirement under special orders; and

c. he or she timely reports or applies for reemployment, i.e.

(1) after less than 31 days service or to take fitness for duty examination, by reporting for the first full regularly scheduled shift on the first full calendar day after completion of service and allowance for safe transportation home plus 8 hours or as soon as possible thereafter if reporting within such period is impossible or unreasonable through no fault of employee;
(2) after 31 to 180 days service, by applying no more than 14 days after completion of service or, if applying within such period is impossible or unreasonable through no fault of employee, next full calendar day when application is possible; or
(3) after more than 180 days service, by applying no more than 90 days after completion of service; unless, the employee is hospitalized or convalescing from a serviceconnected illness or injury, then the reporting requirement is suspended for a period of up to 2 years or, if application is impossible or unreasonable, for the minimum time required to accommodate circumstances beyond employee's control.

d. Note: The timing, frequency and duration of service are irrelevant as long as 5year limitation and notice requirement are met. 38 U.S.C. §§4312(a), (b), (e).

2. Documentation: At the employer's request, an application under 1.c.(2) or (3) must contain documentation, as prescribed by Secretary of Labor, that the application is timely, i.e., that the five (5) year limitation has not been exceeded; and the separation from service was honorable, unless the documentation is nonexistent or not reasonably available; provided that, if documentation later becomes available showing that employee does not meet (1), (2) or (3), employer can terminate employee and rights or benefits afforded; and provided that employer can require documentation of (1) from any employee absent more than 80 days before treating employee as not having a break in service for pension purposes. 38 U.S.C. §4312(f).

3. Exceptions: An employer is not required to reemploy a person if:

a. the employer’s circumstances have so changed as to make such reemployment impossible or unreasonable;
b. reemployment of a disabled or unqualified (and unqualifiable) employee would impose an undue hardship, i.e., requiring significant difficulty or expense in light of nature and cost of accommodation, size, financial resources and type operations of employer or plant and impact on same; or
c. the employee was a temporary employee at the time of the absence for service. 38 U.S.C. §4312(d).

4. Position upon Reemployment

a. After a service absence of less than 91 days, the employee is entitled to be returned to the position the employee would have had if continuously employed, if qualified; or to the same position as at service start date if not qualified for above after reasonable efforts.

b. After a service absence of more than 90 days, the employee is entitled to be returned to a position the employee would have had if continuously employed, or position of like seniority, status and pay, if qualified; or to the same position as at service start date, or position of like seniority, status and pay, if not qualified for above after reasonable efforts.

c, If an employee with service-connected disability is not qualified after reasonable efforts to accommodate for the position employee would have had if continuously employed, the employee is entitled to be placed in any position equivalent in seniority, status and pay for which the employee is qualified or would be qualified after reasonable efforts or to the nearest approximate position.

d. If an employee is not qualified for the position the employee would have had if continuously employed or same position as at service start date, for any reason other than disability, and cannot become qualified with reasonable efforts, the employee is entitled to be placed, with full seniority, in any position of lesser status and pay for which the employee is qualified.

e. If two or more employees are entitled to reemployment in the same position, the one who left first has priority; and other employees are entitled to be placed in any other position as described above in the same order of priority, with similar status and pay and full seniority. 38 U.S.C. §4313.

D. Benefits

1. Seniority-based benefits: Qualified eligible employees are entitled to the same seniority and other rights and benefits based on seniority as on date service began, plus additional seniority, rights and benefits as if the employee had been continuously employed. 38 U.S.C. §4316.

2. Health benefits:

a. Qualified eligible employees are entitled to elect continuation coverage. The maximum period of coverage under such election is the lesser of 18 months from date the service absence began or the day after the date on which the person fails to apply or return to work.
b. Employees may not be required to pay more than 102% of the premium (determined as under COBRA), except if the service absence is less than 30 days, the employee may not be required to pay more than the employee share of the premium, if any.
c. Except for service connected conditions, there can be no exclusion or waiting period upon reemployment, for either employee or dependents, if there would have been no waiting period or exclusion under the plan if coverage had not ended due to service.
d. Employee is not entitled to benefits if the employee knowingly provides clear written notice of intent not to return. 38 U.S.C. §4317.

3. Pension benefits: A qualified eligible person reemployed after an absence must be treated as having incurred a break in service, and the period of absence must be counted for purposes of vesting and benefit accrual. The employer must fund obligations arising during the absence and must allocate employer contributions for the employee exactly as for others. The employee is entitled to accrued benefits contingent on employee contributions or deferrals only to the extent actually made by the employee during the absence. The employee is not entitled to benefits if the employee knowingly provides clear written notice of intent not to return. 38 U.S.C. §4318.

E. Miscellaneous Rights

1. Military Service Treated as Leave of Absence. The period of military service is to be treated as an ordinary leave of absence. Upon return, the employee is entitled to “such other rights and benefits not based on seniority that the employer generally provides to employees of similar seniority, status and pay on leaves of absence,” under any contract, agreement, policy, practice or plan in effect when the military service began or while in service, provided that the employee loses this right if the employee knowingly provides clear written notice of intent not to return; and provided further that the employee is not entitled to any rights to which he or she is would not otherwise be entitled if continuously employed. 38 U.S.C. §4316(b).2
2. For Cause Discharge Only: A person who is reemployed under USERRA “shall not be discharged from such employment, except for cause”:

(1) within one year after the date of such reemployment, if the person’s period of service before the reemployment was more than 180 days;
(2) within 180 days of such reemployment, if the person’s period of service was more than 30 days but less than 181 days. 38 U.S.C. §4316(c).

1. Paid Leave During Absence. At the employee’s request, the employer must allow the employee to use any vacation, annual, personal or similar paid leave accrued before service began during the absence. The employer may not require the employee to use such leave, however. 38 U.S.C. §4316(d).
   

However, exempt employees may not have their weekly salary reduced due to temporary military leave. 29 C.F.R. §541.118. “Temporary military leave” refers to short-term training periods for reservists or members of the National Guard, as distinguished from longer periods of enlistment, drafts or recalls to active duty. W&H Op. Ltr., WHM (BNA) 99:8211 (January 22, 1999). Such short-term periods would include weekend, two weeks or a month leave for duty, “but may include a period of as much as three months.” Id. The employer is allowed to offset any military pay against the regular salary of the exempt employee. Id.

Enforcement against Private Employers

A. Complaint to Secretary of Labor: A person who claims that he or she is entitled to employment, reemployment or other employment benefits and that a private employer has failed or refused to provide such employment, reemployment or other employment benefits may file a written complaint with the Secretary of Labor or the Secretary’s designate identifying the employer and a summary of the allegations against the employer. 38 U.S.C. §§4322(a) & (b).

The Secretary’s powers and obligations include:

1. Investigation/Conciliation: The Secretary or the designate must investigate the complaint and, if it is determined that the alleged action occurred, must undertake efforts to resolve the complaint through reasonable efforts to ensure that the employer complies with the provisions of USERRA. 38 U.S.C. §4322(d).
2. Subpoena Powers: In carrying out the investigation, the Secretary’s duly authorized representatives:

• shall have reasonable access to and the right to interview persons with information relevant to the investigation and shall have reasonable access to, for purposes of examination, and the right to copy and receive any documents of any person or employer that the Secretary considers relevant to the investigation; and
• may require by subpoena the attendance and testimony of witnesses and the production of documents relating to the matter under investigation; and
• in the event of disobedience or contumacy, may request the Attorney General to apply to any district court in whose jurisdiction any disobedience or contumacy occurs for an order enforcing the subpoena. 38 U.S.C. §4326.

3. Notice of Further Enforcement Rights: If the Secretary’s or designate’s efforts do not resolve the complaint, the complaining person must receive notice of the results of the investigation and the right to seek further enforcement, either through a private civil action or through reference to the Attorney General. 38 U.S.C. §4322(e).

B. Enforcement by Attorney General: A person who receives the above-described notice may request that the complaint be referred to the Attorney General. If the Attorney General is reasonably satisfied that the person is entitled to the rights or benefits sought, the Attorney General may appear on behalf of and act as attorney for that person and commence an action in an appropriate United States District Court. 38 U.S.C. §4323(a)(1).

C. Enforcement by Private Action: A person denied USERRA rights may commence an action in the district court in any district in which the private employer maintains a place of business if the person:

(1) has chosen not to apply to the Secretary of Labor for assistance;
(2) has chosen not to request that the Secretary refer the complaint to the Attorney General; or
(3) has been refused representation by the Attorney General. 38 U.S.C. §4323(a)(2) & (b)

D. Remedies: The district courts of the United States have jurisdiction upon the filing of a complaint by or on behalf of a person claiming USERRA rights to:

(1) require the employer to comply with the provisions of USERRA;
(2) require the employer to compensate the person for any loss of wages or benefits as a result of the employer’s failure to comply; and
(3) require the employer to pay the person an amount equal to the amount of lost wages or benefits as liquidated damages if the court determines that the employer’s failure to comply was willful. 38 U.S.C. §4323(c)(1).

E. No fees or court costs shall be charged or taxed against any person claiming rights under USERRA. 38 U.S.C. §4323(c)(2)(A)

F. Fees & Costs: If the complainant obtained private counsel and prevailed in the private action against the employer, the court may award “reasonable attorneys fees, expert witness fees, and other litigation expenses.” 38 U.S.C. §4323(c)(2)(B).

G. An action may be initiated only by a person claiming rights or benefits under USERRA, not by an employer, prospective employer or other entity with obligations under USERRA. 38 U.S.C. '4323(c)(4).

H. No Statute of Limitations: USERRA does not set forth a statute of limitations and expressly prohibits the application of any State statute of limitations to any proceeding under USERRA. 38 U.S.C. §4323(c)(6).

Selected Decisions under the Veterans Reemployment Rights Act

• ?Returning veteran did not “make an application for reemployment” when he merely visited employer’s guard shack, asked for a job application, and left when told that employer had people on layoff status and was not hiring. Shadle v. Superwood Corp., 858 F.2d 437 [129 LRRM 2770] (8th Cir. 1988).
• Reservist employee’s deliberate disregard for employer’s needs by giving only 15 minutes of notice prior to three-week leave for Army obligations was a legitimate basis for discharge. Burkart v. Post-Browning, Inc., 859 F.2d 1245 [129 LRRM 2679] (6th Cir. 1988).
• Rights are dependent upon an employer-employee relationship, as distinguished from a partnership or independent contractor arrangement. Brown v. Luster, 165 F.2d 181 [21 LRRM 2229] (9th Cir. 1947); King v. Southwestern Greyhound Lines, Inc., 169 F.2d 497 [21 LRRM 2404] (10th Cir.), den. 335 U.S. 891 (1948).
• The mere replacement of an absent employee does not constitute “changed circumstances” to make it “impossible” or “unreasonable” to rehire the employee upon return from military service. Cole v. Swint, 140 LRRM 2447 (5th Cir. 1992).
• Determination of “successor” status may be made by reference to the tests used under the Labor Management Relations Act. Lieb v. Georgia-Pacific Corp., 925 F.2d 240 [136 LRRM 2509] (8th Cir. 1991).
• Returning veterans must mitigate their damages, and actual or possible wages from other jobs are deductible from a back pay award. Doanne Co. v. Martin, 164 F.2d 537 [20 LRRM 2445] (1st Cir. 1947). Unemployment benefits, however, are not deductible from back pay. Novak v. Mackintosh & Dakota Indus., Inc., 155 LRRM 2985 (D.C. S.D. 1996).
• Because the court may enforce veteran’s rights through equitable powers, the affirmative defense and equitable doctrine of laches may bar a veteran’s claims if the veteran is guilty of unreasonable and unexcused delay resulting in prejudice to the employer. Jordan v. Kenton County Bd. of Educ., 154 LRRM 2731 (E.D. Ky. 1995) (thirteen year delay was unreasonable and employer was prejudiced because documents had been destroyed and witnesses were no longer available); Wallace v. Hardee’s of Oxford, Inc., 148 LRRM 2587 (M.D. Ala. 1995) (two-and-one-half year delay was not per se unreasonable and was insufficient to support summary judgment on grounds of laches).
• A service member suing his employer for failure to re-employ under USERRA does not need to show that his military service was a motivating factor in the employer’s decision. Jordan v. Air Products and Chemicals, Inc., No. 01-05471 [BNA DLR No. 189, 09/30/02] (C.D. Cal. 2002). USERRA gives an unqualified right to re-employment for those who give proper notice.
• No grounds exist for applying other federal limitation periods to a veteran’s claims. Wallace v. Hardee’s of Oxford, Inc., 148 LRRM 2587 (M.D. Ala. 1995)