Returning Service Member not entitled to Two-Year Convalescence Period after Reemployment

September 19, 2016

The Uniformed Services Employment and Reemployment Rights Act (USERRA) affords returning service members protection only during the act of rehiring, ruled the Virginia Supreme Court, in affirming a trial court’s judgment against a deputy sheriff who claimed that her employer failed to sufficiently accommodate her service-related disabilities. The court found that the employer met its obligations under USERRA by promptly reemploying the employee in the same position she held prior to leaving for service.

The court also determined that the employer was not required to allow the employee a two-year convalescence period following reemployment before terminating her employment. To claim the reemployment rights afforded by USERRA a service member must provide notice of their intent to return to work "upon the completion of a period of service in the uniformed services." However, 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 court held that the extension applies only during the interim between completing a period of service and reemployment.