Do Employment Laws Hurt Rather Than Help Those Who Serve in The Military?

VeteransClose to 48,000 Iraq and Afghanistan veterans are either homeless or are “in federal programs aimed at keeping them off the streets.” (USA Today, January 17-19, 2014). The unemployment rate among veterans who served after 9-11, is 8.6%,  compared to a nation’s overall jobless rate of  6.7%.

One of the factors which may account for this gap is the fear among employers spawned by   the publicity given to post-traumatic stress disorder (PTSD).  Employers worry that if they hire a veteran and that person displays the outbursts of anger sometimes correlated with the disease, the Americans with Disabilities Act (ADA) can make it very difficult for the employer to let the individual go.   The ADA specifically identifies post-traumatic stress disorder as a protected mental impairment.

Should the employer become concerned about workplace safety, his only recourse may be to go to the expense of paying a psychiatrist to perform a fitness-for-duty evaluation (FFD).

Another reason many employers now shy away from hiring members of the  Armed Services, The Reserves, and the National Guard  is to avoid having to comply with the Uniformed Services Employment and Reemployment Rights Act (USERRA). This act requires employers to  promptly reemploy them in their civilian jobs upon their return from duty  (even if this means laying off the people hired to replace them) and to grant them any pay increases and, in some cases, any promotions they would likely have been entitled to had they not been deployed.

Employers who violate  or who are perceived as having violated USERRA  may be sued.  In 2011, U.S. Army Reservist David C. Fyock filed a complaint with the Department of Justice alleging that  the Pennsylvania Department of Corrections (PDOC) had violated USERRA   ” by failing to retroactively promote Fyock from a corrections officer 1 to a corrections officer 2 position” after he returned from military deployment. Fyock took a make-up promotional exam after he returned and scored higher than those colleagues who had been promoted to the higher position while he was deployed.  The Department of Justice found in favor of Fyock and has ordered PDOC to  promote him to the Corrections Officer 2 (Sergeant) position and to give him back pay along with other benefits.

More recently (in 2013), U.S. Army Reservist Curtis Kirk sued All Battery Sales and Service (ABS) for reemploying him in a lower position than the one he had held when he left for active duty. The new position came with fewer guaranteed working hours, a less lucrative commission and bonus structure and fewer opportunities for promotion. Later ABS let Kirk go, which Kirk claimed was also a violation of his rights under USERRA. The Department of Justice found in favor of Kirk and ordered ABS to pay him $37,500 to compensate for lost or reduced wages and benefits. 

Yes, not hiring someone because they might suffer from PTSD is a violation of the Americans with Disabilities Act (ADA) and not hiring them in order to avoid USERRA is outright discrimination, but this hardly curbs employers from putting their  business interests first and the law second. In fact, it’s quite possible that by scaring off prospective employers,  the ADA and USERRA has done more harm than good to those enlisted in the military.

Violence in the Workplace: OSHA and ADA Create a Catch-22 for Employers

Cogs Turning in SyncHere in the United States, OSHA holds employers legally responsible for providing a safe and healthful workplace.  At the same time, under the Americans with Disabilities Act (ADA), emotional and mental illnesses are protected disabilities. The act prohibits employers from discriminating against individuals who suffer from a mental illness, including those psychiatric disorders which may trigger dangerous behaviors. It also  makes it illegal for employers to ask job applicants or existing employees if they suffer from  a mental or emotional illness.

In her article “Defuse Workplace Violence” (HR Magazine, November 2013), Barbara Holey suggests one solution to this Catch-22 dilemma.  If an employer has good reason to suspect that an employee poses a potential danger in the workplace, he can order a fitness-for-duty evaluation (FFD).

According to Psychiatrist Stephen Raffle, Independent Fitness for Duty Evaluations may be conducted “at the employer’s discretion and are permitted because of the employer’s need to maintain a safe workplace.” The ADA allows such an evaluation provided that the employer can show that it is job-related and is “consistent with business necessity.”  Raffle recommends that employers seek out a psychiatrist who is familiar with the employee’s rights under the Americans with Disabilities Act.

Of course, not all mentally ill people are dangerous. Far from it. And often times it’s not the employee who is obviously grappling with some mental or emotional problem, but the calm-on-the-outside, seemingly stable employee (or ex-employee) who loses it one day and attacks his boss or co-workers. The fitness-for-duty evaluation should never be treated lightly nor ordered without good cause.  But if you are legitimately concerned that an employee may pose a real danger to your workplace, it may be your best way out of the OSHA-ADA Catch-22.