INCAP and Job Protection

wallflood

wallflood

PEB Forum Regular Member
PEB Forum Veteran
Registered Member
Greetings All
So for those who:

1) Do not qualify for FMLA due to FTE not being enough hours

2) Company has a policy of "resigning" employees who are gone for 8 weeks or longer on medical leave of absence

Are there any laws protecting service members in this position?

Shouldnt there be a similar protection like being on orders or deployed?

Thanks
 
I can ell you all right now that Ive so far:

1) Spoken to a congressman

2)Department of Labor

3) Department of Hours and Wage

4) State ESGR

4) State Attorney General

And ALL of them gave me each others phone numbers. Can you say "punt?"
 
I believe your best bet is USERRA. Though the law is written to protect the civilian jobs of those being called to duty, it should also extend to those who are unable to work because of injuries sustained in the line of duty. USERRA falls under the Department of Labor VETS office.

I would argue that being on INCAP is an extension of military service for the purpose of medical treatment and during the time of physical incapacitation due to the line of duty injury. You may not have a typed set of "orders" for that time, but you will/do have LES statements showing you are/were paid as if you were back on Active Duty (Tier 1) or compensating you for lost civilian wages (Tier 2). Tier 1 would be the stronger argument.

Here's a link to the flyer every workplace is required to post. Bottom right it says that you can chose to bypass the VETS complaint process and sue the employer directly in civil court. I would suggest you talk to the VETS representative and if they aren't willing to back you up on it, file a lawsuit yourself.

http://www.dol.gov/vets/programs/userra/USERRA_Private.pdf

You can also talk to the local media, a Soldier wrongfully losing his civilian job due to an injury sustained in the service, especially with your military background, may be a story they want to pick up, or at least investigate.

Have you talked with the HR department at your work about the matter? Just the idea of dealing with a USERRA complaint, taken to civil court, and having to answer a reporters questions on why an injured Soldier's job is gone, all may be enough to convince your employer that its not only easier just to hold your job for you, but its also the right thing to do.

Not many laws are written to cover every contingency, so legally you may fall through the cracks. Personally I would rather take the trouble to fight them with everything I had, than spend forever wishing I hadn't let them get away with it when I had the opportunity to do what I could.
 
Its a tough one. Incap is basically the military's workman's compensation. It is not a duty status. You do not earn retirement points. I'm not sure there is any protection provided by law . . .
 
you are covered under USERRA...

UNIFORMED SERVICES EMPLOYMENT AND REEMPLOYMENT RIGHTS ACT OF 1994

(2)(A) A person who is hospitalized for, or convalescing from, an illness or injury incurred in, or aggravated during, the performance of service in the uniformed services shall, at the end of the period that is necessary for the person to recover from such illness or injury, report to the person's employer (in the case of a person described in subparagraph (A) or (B) of paragraph (1)) or submit an application for reemployment with such employer (in the case of a person described in subparagraph (C) or (D) of such paragraph). Except as provided in subparagraph (B), such period of recovery may not exceed two years.

(B) Such two-year period shall be extended by the minimum time required to accommodate the circumstances beyond such person's control which make reporting within the period specified in subparagraph (A) impossible or unreasonable.
 
Thanks guys
Ive seen the law and have read it. Thanks for providing that to me I truly appreciate it.

The problem is my employers resistance to it which sucks for veterans that work with me, and all veterans that are a victim of other employers that witness this modus operandi and how effective it can be without a staunch defense and effort on part of the veteran and those that would assist him/her.

Im my case my legal counsel has advised me to NO LONGER communicate with my employer and that they would deal with this. I hope that is the case.

Consider the following from http://www.servicemembers-lawcenter.org/LAW_REVIEW_640.html

USERRA’s Modification of FMLA Leave Requirements
Another noteworthy consideration for employers is the interplay between USERRA and the Family Medical Leave Act (FMLA), 29 U.S.C. § 2601, et seq. In most circumstances, a disabled veteran will be eligible for up to 12 weeks of family medical leave if his or her condition constitutes a “serious health condition” as defined under the FMLA, notwithstanding the probability that the veteran has been absent for an extended period. Ordinarily, the FMLA requires an employee to have worked for the employer at least 12 months and at least 1,250 hours during the 12-month period prior to the start of an FMLA leave in order to qualify for FMLA leave. In 2002, DOL modified this general requirement for returning veterans when it published an Opinion Memorandum concluding that time spent away from work to perform military service must be counted in meeting both the 12-month and the 1,250 hour thresholds.

Just to reiterate:

My Senator, congressman, DOL, Dept of Wages and Hours, ESGR have all been UNHELPFUL in my case.

I have a civilian attorney standing my who is very familiar with this law and my employer but seeing my situation is a direct result of being injured in the line of duty (airborne operations) I do not think I should have to retain an attorney of my own accord.

In retrospect I do not think I want to work for an employer who has a history of screwing veterans over but having said that I do not want to be fired over this as it would set a terrible precedence for the next service member who looses their job due to being injured while on duty.

Im beginning to think INCAP is a far more important subject than its represented to be on this forum, and perhaps deserves its own forum in order to address issues with service members who are A) Injured in the line of duty and B) Drawing INCAP while undergoing the MEB/PEB IDES process-
Thanks all
 
You must log in or register to reply here.
Top