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USERRA: Accommodate returning vets–but insist that they follow reinstatement rules

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in Discrimination and Harassment,Human Resources

Employees who serve in the military are entitled to return to their jobs after their active duty ends and otherwise receive special consideration for service. But those rights have limits.

For example, someone injured during military duty may no ­longer be able to perform his old job. Employers must to try to make reasonable accommodations so the employee can perform the job’s essential functions—and that accommodation may include placement in another equivalent position. Re­­turn­­ing employees who refuse to take that position can be terminated.

Recent case: Rodney worked as a police officer for the Dallas Inde­­pen­­dent School District. Working in and around schools, he was responsible for patrolling school grounds, preventing crimes, apprehending criminals and responding to emergencies.

He was also a member of the U.S. Army Reserve, and was twice called to active duty in Afghanistan and Iraq. During his deployment to Iraq, he was seriously injured when a rocket-propelled grenade hit his vehicle. His subsequent medical problems included a knee injury and post-traumatic stress disorder.

When Rodney returned to work, he was offered a light-duty position as an unarmed police officer because his doctors had placed restrictions on his physical activities. His restrictions kept him from performing several functions listed as essential for an armed police officer, including running and walking for long periods of time, jumping from elevated surfaces, running up and down stairs and other intense physical activity typical of chasing suspects.

The light-duty job had the same classification as his old one, with the same pay and benefits.

Rodney was told that when he was physically ready to return to the armed position, he would have to undergo a psychological examination. The school district required it for all employees coming off light duty who had experienced life-threatening injuries or incidents.

When his doctors cleared him physically, Rodney demanded his old job back and refused to take the psychological exam. When he didn’t report for work, he was fired for insubordination and job abandonment.

Rodney then sued under the ADA, claiming discrimination under USERRA—the Uniformed Services Employment and Reemployment Rights Act.

The court tossed out Rodney’s claims. It reasoned that the school district had accommodated his knee injury, was permitted to request a psych evaluation for employees such as Rodney and hadn’t refused to reinstate him without legitimate reasons allowed under USERRA. Essentially, Rodney had been accommodated.

The court said his refusal to undergo the same testing civilian employees underwent and refusing to report for work led to his discharge, not anti-military bias. (Bennett v. Dallas Independent School District, No. 3:11-CV-0393, ND TX, 2013)

Final note: The school district did everything right in this case. It assessed Rodney’s condition and offered him a reasonable accommodation while his injuries limited his ability to work as an armed police officer. It offered him his job back once the physical restrictions were lifted, on the same basis that applied to other employees who also had to undergo a mental exam.

When he refused to take the exam, it charged him with insubordination and when he didn’t come to work, it fired him. All along the way, it supported Rodney and his reinstatement rights.

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