Many employers require employees returning from extended leaves of absence to comply with return to work procedures, such as medical exams, training, etc.  A new decision from the Sixth Circuit Court of Appeals reminds employers that such procedures cannot be applied to employees returning to work from military leave.  In Petty v. Metropolitan Govt. of Nashville-Davidson County, the claim was brought by a police officer returning to work after serving with the National Guard in Iraq.  The department delayed his reinstatement for several weeks while it investigated rumors surrounding the plaintiff’s resignation from the National Guard.  The employer also claimed that the delay was necessary in order for the officer to obtain a return to work fitness exam.

The Sixth Circuit reversed summary judgment for the defendant.  While recognizing questions over the officer’s return from Iraq, as well as public safety concerns relating to a police officer’s fitness, the court concluded that these concerns are overridden by explicit language contained in the Uniformed Services Employment and Reemployment Rights Act (USERRA).  The plaintiff fulfilled all requirements under USERRA for an immediate reinstatement to work, including an honorable discharge from the military.  USERRA does not allow employers to delay or deny reinstatement based upon its suspicions over circumstances leading to that discharge.

Similarly, fitness for duty or other post-leave policies or procedures applied to other employees on leave cannot be used to delay reinstatement of employees returning from military leave.  This decision reflects a recent line of federal cases that broadly construe USERRA and find employers liable for any deviation from its specific requirements.  Employees returning from military leave enjoy rights well beyond those applying to employees absent for any other reasons.