Vol. 18 No. 14- Medical Evaluations Of Employees Returning From Military Duty

To: All Police Chiefs and Sheriffs

From: Martin J. Mayer

July 25, 2003

Recently a question was raised regarding the right, and/or obligation, of a law enforcement agency to evaluate the physical and psychological status of peace officers returning from military duty – especially those returning from Iraq. Before getting into specifics regarding this issue, some general information needs to be shared.

The Uniformed Services Employment and Re-Employment Act (USERRA) was enacted in October, 1994 and provides protection and rights of reinstatement to employees who participate in the National Guard and the Reserve. There are numerous rules and regulations contained in USERRA which are designed to encourage non-career service in the military by: 1) eliminating or minimizing the disadvantages to civilian careers and employment which can result from such service; 2) providing for the prompt re-employment of such persons upon their completion of such military service; and 3) prohibiting discrimination against persons because of their service in the military.

USERRA provides protections involving initial hiring, adverse employment actions motivated by the employees military service, rights to attend scheduled drills and/or annual training, and reinstatement after serving an extended military tour of duty. USERRA also addresses issues such as notice to the employer prior to the employee leaving for military duty, the right to obtain documentation of military service, time limits for an employee to return to work after completion of military duty, and the amount of military leave which an employer must permit.

USERRA provides for statutory remedies, at both law and equity, for violations of the statute including, but not limited to, awards of money damages.

There are different requirements, rules and regulations imposed on employers, which vary depending upon the length of service of your employee in the military. Additionally, there are rights for the employer which focus primarily upon possible “undue hardship” confronting an employer.

The Department of Defense has created the National Committee for Employer Support of the Guard and Reserve (ESGR), which attempts to obtain and sustain employer and community support for both National Guard and reserve members who are absent from their civilian jobs to perform military duty. ESGR provides an Ombudsmen Service which is available if an employer has questions about USERRA and the rights of employees called for, or participating in, military service. ESGR can be contacted at (800) 336-4590.

The focus of this Client Alert Memorandum, however, is on the peace officer employee who is injured or incurs a disability during military duty.

The time limit for an employee to return to work after a military leave of absence depends on the duration of the employee’s military orders. If the employee served between one and thirty days, he/she is expected to return to work at the beginning of the next regularly scheduled work period on the first full day following completion of military service. If service was between thirty one and one hundred eighty days, application for reinstatement by the employee must be submitted not later than fourteen days after the completion of military duty. Finally, if service exceeds one hundred eighty days, application for reinstatement must be submitted no later than ninety days after completion of military duty.

The first issue to be addressed, however, is what if the employee had an accident, was wounded or incurred some form of disability during that military duty? The deadline for reinstatement under those circumstances may be extended for up to two years, to allow the individual to convalesce as a result of the disability incurred or aggravated during military service. Employers are also required to make reasonable accommodations for the impairment sustained by the employee, if such reasonable accommodation is possible.

Just as with the Americans for Disabilities Act (ADA), reasonable accommodations for those who provide for the public safety (peace officers, firefighters, EMT’s, paramedics, etc.) are much more difficult to provide, since a reasonable accommodation is one which will enable the individual to carry out all the essential functions of the job. It does not, for example, mean that a city or county must place a returning peace officer in a light duty assignment while that person is recuperating.

The law requires that the employer hold the individuals job for up to a two year period of time while they are convalescing. One possible exception to that is if the employer can show that the delay in filling that position would create an undue hardship on the employer. As with an ADA claim for undue hardship, the burden is on the employer to prove the hardship and there are many factors which will be considered in determining whether the undue hardship defense is appropriate.

USERRA also requires that employees returning from military service be re-employed in the job that they would have attained had they not been absent for military service, and with the same rights and benefits which would have accrued had the employee been working during the time he and she was on military duty. Employees who are disabled, either temporarily or permanently, due to military service, must be accommodated in a position most nearly approximating the original position, if that is possible.

What, then, should a law enforcement agency do if a returning officer informs the agency, and/or the agency has reason to believe, that a physical and/or psychological problem might exist which might interfere with the officer’s ability to perform as a peace officer? Based upon our research, as well as conversations with the United States Department of Labor (which is charged with the enforcement of USERRA), the employee should be immediately reinstated and, if the employer can justify it, then sent for a fitness for duty evaluation to ensure the employee is capable performing all the essential functions of the job.

Pursuant to California Government Code 1031, an individual cannot be a peace officer if he or she has a physical, psychological or emotional problem which would interfere with their ability to perform the job of peace officer. However, in our opinion, the mere fact that an employee is returning from Iraq is not sufficient to justify a physical or psychological evaluation. There must be more.

The specific issue presented to us for review involved an officer who had been wounded during his tour in Iraq and had indicated that the experience in Iraq had an adverse emotional effect upon him. Those factors would justify, and quite frankly require, evaluations of the officer’s physical and psychological ability to perform the required functions of the job.

Another question which was posed was whether or not the department would be responsible for the employee’s disability retirement, if he or she was no longer able to serve as a peace officer? The answer is in the negative. Since the injury which prevents the individual from performing his or her job was not caused by an industrial injury, but rather by a military incurred injury, the employee would not be eligible for a job related disability retirement.

How Does This Impact Your Agency?

We urge that all of you who have employees returning, or about to return, from military duty, seek out legal advice and guidance regarding your obligations to that employee. Remember, USERRA requires the prompt re-employment of persons and prohibits discrimination against those individuals because of their service in the military.

In the case of the peace officer, however, our state law mandates that the individual be both physically and psychologically fit for duty. These laws are not mutually exclusive, but the decision of whether or not an employee should be sent for a medical evaluation should be made in consultation with the department’s legal counsel. In this area of the law, perhaps more than most others, the necessity for securing legal advice and guidance, prior to taking any action regarding a returning member of the military, is imperative.