Employment Law Daily Returning service member not entitled to 2-year convalescence period after reemployment
Tuesday, September 13, 2016

Returning service member not entitled to 2-year convalescence period after reemployment

By Cynthia L. Hackerott, J.D. Sections 4312 and 4313 of USERRA afford returning service members protection only during the act of rehiring, ruled the Virginia Supreme Court, in affirming a state trial court’s grant of summary judgment against a deputy sheriff who claimed that her employer failed to sufficiently accommodate her service-related disabilities. The county sheriff’s office met its obligations under USERRA by promptly reemploying the plaintiff in the same position she held prior to leaving for service, the court found. It also determined that the sheriff was not required to allow her a two-year convalescence period following reemployment before terminating her employment (Huff v. Winston, September 8, 2016, Mims, W.). When the Roanoke County Sheriff’s Office hired the plaintiff as a deputy sheriff in November 2001, she was a member of the U.S. Army Reserve. In December 2009, while serving as a deputy sheriff bailiff, she was called to active duty and deployed to Afghanistan. During her tour of duty, she suffered a broken nose, injuries to her hip and spine, and a concussion, which resulted in a traumatic brain injury. In April 2011, she was diagnosed with post-traumatic stress disorder (PTSD) and major depressive disorder. Injuries plagued ability to work. The following month, she returned from Afghanistan and was discharged from active duty shortly thereafter. In July, the sheriff rehired her as a deputy sheriff bailiff. Despite treatment at a local VA medical center, she continued to suffer from PTSD and depression-related symptoms, which resulted in the sheriff requiring her to undergo two fitness-for-duty evaluations. On both occasions, she was deemed fit for duty. In August, she requested unpaid leave on Fridays due to ongoing counseling sessions that were scheduled for Thursday evenings. Because the sheriff could not provide leave on every Friday if she remained in the court services division, he offered to transfer her from court services to corrections, to provide the office with greater scheduling flexibility. Considering the transfer a demotion, she declined to accept it. The sheriff then told her that she could take up to thirty days unpaid administrative leave to seek counseling and treatment. Beginning in late November 2011, she took thirty days leave pursuant to the FMLA. Worsening health prevents full-time return. Upon her return, she was authorized by her treating physician to work on a full-time, "light duty" basis through April 1, 2012. She began working in this capacity, and later submitted a request to remain on full-time, light duty through June. However, she went on disability leave following a March heart attack, which her treating physician deemed "service related." Subsequently, her physician cleared her to return to work on a part-time, "full duty" basis from October 22, 2012 to January 21, 2013. Three days later, the sheriff terminated her due to her inability to return to work full-time. Lower court proceedings. The plaintiff filed a complaint in the Circuit Court of Roanoke County, asserting that the sheriff failed to properly reemploy her and failed to make reasonable efforts to accommodate her disability in violation of 38 U.S.C. § 4313; and was required to allow her a two-year convalescence period before terminating her employment pursuant to 38 U.S.C. § 4312. Relying on the Fourth Circuit’s 2006 decision in Francis v. Booz, Allen & Hamilton, Inc., the state trial court granted summary judgment in favor of the sheriff, ruling that Sections 4312 and 4313 apply only until the moment of reemployment. These provisions were inapplicable to the plaintiff’s claims because the sheriff rehired the plaintiff in the same position that she had left during her deployment, the court found. The case then proceeded to trial on the two remaining counts: claims under 38 U.S.C. § 4311(c)(1) and (c)(2) for discrimination on the basis of her military service and for retaliatory discharge. After she presented her case, the court granted the sheriff’s motion to strike the first count, while taking the sheriff’s motion to strike the remaining count under advisement. After the sheriff presented his case, the jury returned a verdict in his favor on the remaining count. Two-year convalescence period. To claim the reemployment rights afforded in USERRA at 38 U.S.C. Section 4312(a), a service member must provide notice of her intent to return to work "upon the completion of a period of service in the uniformed services." However, under Section 4312(e), a two-year extension is triggered when the service member "is hospitalized for, or convalescing from, an illness or injury incurred in, or aggravated during, the performance of service in the uniformed services." The plaintiff asserted that USERRA, at Section 4312(e)(2), provides a two-year period after the end of deployment during which a service member’s job is protected if the service member is convalescing with service-related injuries and, therefore, the sheriff could not terminate her until May 13, 2013. Disagreeing, the Virginia Supreme Court concluded that the language of Section 4312 did not support that argument. Section 4312 subsection (e) governs the notice prerequisite of subsection (a)(3). Read together, these provisions allow a service member who "is" convalescing from an illness or injury "upon the completion of a period of service" up to two years to report to his employer, the court explained. Nothing in the text of subsection (e) affects the terms of employment once the service member has been rehired. Therefore, Section 4312 applies only during the interim between completing a period of service and reemployment, the court concluded. Heart attack did not change calculus. The plaintiff’s argument that her service-related heart attack changed the calculus failed to account for the purpose and function of subsection (e), which is to notify the employer of a service member’s intent to claim his reemployment rights after completing a period of service. Nothing in subsection (e) restarts or tolls the notice period after the employer has reemployed the service member, and it would be unnecessary to provide such a mechanism given that once a service member has been rehired and begins work, there is no longer any need to notify the employer of his intent to claim the reemployment rights afforded by subsection (a). The only thing remaining is to find an appropriate position for the service member. Here, the plaintiff suffered her heart attack nearly a year after she had completed the relevant period of service—well after the sheriff had rehired her in the same position that she left upon her deployment. Thus, because the two-year convalescence period in subsection (e), like the rest of Section 4312, applies only in the interim between the completion of service and reemployment, the court properly granted summary judgment on this count. Reemployment under Section 4313. USERRASection 4313 guarantees that service members entitled to reemployment rights under Section 4312 will be reemployed in an appropriate position upon their return from service, and protects their employment status in their absence. The plaintiff contended that Section 4313 imposes a continuing duty to make reasonable efforts to accommodate her disabilities after reemployment. But the court, agreeing with the sheriff, determined that Section 4313 only requires an employer to promptly (usually within two weeks of application) rehire a returning service member in either what is known as the "escalator position" (which the returning service member would have attained with reasonable certainty if not for the absence due to uniformed service) or another appropriate position given due consideration to length of service, qualifications, and any disability. Pursuant to this section of the statute and its implementing regulations, the employer must make reasonable efforts to accommodate service members who return with a disability in the escalator position if the service member is not qualified to be employed in the escalator position because of the disability. Then, if the service member cannot qualify for the escalator position due to the disability after reasonable efforts by the employer, the service member must be reemployed in a position with "equivalent seniority, status, and pay" for which the individual is qualified or could become qualified through reasonable efforts by the employer. If there is no equivalent alternative, the employer must reemploy the service member in the position that is the closest approximation in terms of seniority, status, and pay. Still, an employer is not required to reemploy the employee on his or her return from service if he or she cannot, after reasonable efforts, qualify for the appropriate reemployment position, the court explained. Therefore, deciding how to reemploy a returning service member is part and parcel of the decision of whether to reemploy the service member under Section 4313, the court pointed out, stating that a claim under Section 4313 is limited to challenging placement upon reemployment, or the promptness of such reemployment. The close relationship between the right to reemployment under Section 4312 and the right to a specific position upon reemployment under Section 4313 supports the conclusion that the protections afforded by Section 4313 do not apply beyond the date of reemployment. After the date of reemployment, and during "retention in employment," a covered employee receives the protections of USERRA Sections 4311 (anti-retaliation provision) and 4316 (protects returning service members from dismissal without cause for a one-year period after rehire), the court added. Here, there was no dispute that the sheriff fulfilled his obligation under Section 4313(a)(2) by promptly reemploying the plaintiff as a deputy sheriff bailiff with all of the benefits to which she would have been entitled but for the interruption caused by her service. The duty to make reasonable efforts to accommodate a service-related disability only applies to the structuring of the appropriate reemployment position, which is selected during the decision to reemploy. Put another way, nothing that occurred subsequent to the initial reemployment decision is relevant to a Section 4313 failure-to-accommodate claim because that provision only applies to the initial structure or selection of the reemployment position. This interpretation serves the stated purposes of USERRA, the state high court reasoned. Section 4312 provides returning service members with a right to reemployment, which counteracts any disincentive to rehire returning service members who may be subject to irregular periods of unavailability. In turn, Section 4313 reduces the risk of losing a position, seniority, benefits, or an opportunity for promotion upon leaving for active service. Then, Section 4316 suspends "at will" employment for up to one year after the date of reemployment. Accordingly, the circuit court properly granted summary judgment on this count as well.

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