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elaws - employment laws assistance for workers and small businesses

- USERRA Advisor

The following three-part reemployment process is required for persons with a disability incurred during service:

  1. The employer must make a reasonable effort to accommodate the person's disability so that the person can perform the position that the person would have held if the person had remained continuously employed.
  2. If, despite reasonable accommodation efforts, the person is not qualified for the position in (1) above due to his or her disability, the person must be reemployed in a position of equivalent seniority, status, and pay, so long as the employee is qualified to perform the duties of the position, or could become qualified to perform them with reasonable efforts by the employer.
  3. If the person does not become qualified for the position in either (1) or (2) above the person must be employed in a position that, consistent with the circumstances of that person's case, most nearly approximates the position in (2) in terms of seniority, status and pay.

These requirements apply to all employers, regardless of size. See 20 CFR Part 1002.225.

If you think your situation warrants a complaint, please review the instructions on how to file a complaint form. You will find a link to the form on the instructions page. The Veterans' Employment and Training Service will investigate complaints and attempt to resolve them. Persons whose complaints against non-Federal employers are not resolved by VETS may request that their complaints be submitted to the Attorney General for possible representation in Federal court. Unresolved complaints against Federal employers will, upon request, be referred to the Office of Special Counsel for possible representation before the Merit Systems Protection Board.

NOTE: In Federal cases involving nonselection or layoffs, a person may wish to file complaints under both the USERRA and Veterans' Preference (VP) statutes. If you think that this situation applies to you, you must submit a separate complaint form for each statute allegedly violated (i.e., one for USERRA and one for VP). When this situation occurs, VETS will open two separate cases for investigation.

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