Does USERRA cover dental appointments that the military is paying for?

SGT Private RallyPoint Member — Sun, 11 Feb 2018 17:34:55 -0500

Response by SGT Mark Estes made Nov 9 at 2018 5:40 PM

SGT Mark Estes — Fri, 09 Nov 2018 17:40:01 -0500

I believe so, I will ask around!

Response by COL Mark Voichoski made Jul 12 at 2020 6:21 PM

COL Mark Voichoski — Sun, 12 Jul 2020 18:21:14 -0400

No it doesn't, unless you're on military orders (i.e. performing military service such as inactive duty, active duty, or full-time National Guard duty) for that appointment. Please see Law Review 18085 below from the http://www.roa.org website.

LAW REVIEW 18085
September 2018
Medical Appointments for Service-Connected Disability Do Not Amount to
“Service in the Uniformed Services” for Purposes of USERRA
By Captain Samuel F. Wright, JAGC, USN (Ret.)2
Update on Sam Wright
1.1.2.1—USERRA applies to part-time, temporary, probationary, and at-will employees
1.1.3.7—Examination to determine fitness
1.2—USERRA forbids discrimination
1.3.2.9—Accommodations for disabled veterans
1.4—USERRA enforcement
1.8—Relationship between USERRA and other laws/policies
Kieffer v. Planet Fitness of Adrian LLC, 2017 U.S. Dist. LEXIS 131969 (E.D. Mich. Aug. 18,
2017).3

1
I invite the reader’s attention to http://www.roa.org/lawcenter. You will find more than 1600 “Law Review” articles
about the Uniformed Services Employment and Reemployment Rights Act (USERRA), the Servicemembers Civil
Relief Act (SCRA), the Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA), the Uniformed Services
Former Spouse Protection Act (USFSPA), and other laws that are especially pertinent to those who serve our
country in uniform. You will also find a detailed Subject Index, to facilitate finding articles about very specific
topics. The Reserve Officers Association (ROA) initiated this column in 1997. I am the author of more than 1400 of
the articles.
2 BA 1973 Northwestern University, JD (law degree) 1976 University of Houston, LLM (advanced law degree) 1980
Georgetown University. I served in the Navy and Navy Reserve as a Judge Advocate General’s Corps officer and
retired in 2007. I am a life member of ROA. For 42 years, I have worked with volunteers around the country to
reform absentee voting laws and procedures to facilitate the enfranchisement of the brave young men and women
who serve our country in uniform. I have also dealt with the Uniformed Services Employment and Reemployment
Rights Act (USERRA) and the Veterans’ Reemployment Rights Act (VRRA—the 1940 version of the federal
reemployment statute) for 36 years. I developed the interest and expertise in this law during the decade (1982-92)
that I worked for the United States Department of Labor (DOL) as an attorney. Together with one other DOL
attorney (Susan M. Webman), I largely drafted the proposed VRRA rewrite that President George H.W. Bush
presented to Congress, as his proposal, in February 1991. On 10/13/1994, President Bill Clinton signed into law
USERRA, Public Law 103-353, 108 Stat. 3162. The version of USERRA that President Clinton signed in 1994 was 85%
the same as the Webman-Wright draft. USERRA is codified in title 38 of the United States Code at sections 4301
through 4335 (38 U.S.C. 4301-35). I have also dealt with the VRRA and USERRA as a judge advocate in the Navy and
Navy Reserve, as an attorney for the Department of Defense (DOD) organization called Employer Support of the
Guard and Reserve (ESGR), as an attorney for the United States Office of Special Counsel (OSC), as an attorney in
private practice, and as the Director of the Service Members Law Center (SMLC), as a full-time employee of ROA,
for six years (2009-15). Please see Law Review 15052 (June 2015), concerning the accomplishments of the SMLC.
My paid employment with ROA ended 5/31/2015, but I have continued the work of the SMLC as a volunteer. You
can reach me by e-mail at [login to see] .
3 This is an informally published decision of Judge Judith E. Levy of the United States District Court for the Eastern
District of Michigan.
Cary Kieffer served on active duty in the United States military4
for 12 years, from 1996 until
2008. He did not work for the defendant employer before he enlisted in 1996. Kieffer was
seriously wounded in action in an ambush at Mosul, Iraq. He received injuries to his eye and
leg, as well as Post Traumatic Stress Disorder.
Kieffer was hired by Planet Fitness of Adrian LLC (PF) on 10/9/2015.5 He informed the employer
of his service-connected disabilities at the time of hiring. He needed time off from his job for
medical appointments related to his disabilities. On 5/28/2016, he requested unpaid leave for
three medical appointments during the week of 6/20/2016. It is unclear how the employer
responded to his request, if at all, but Kieffer apparently took the time off and attended his
scheduled medical appointments. On 7/5/2016, PF fired him “for no reason whatsoever.”6
On 4/25/2017, Kieffer sued PF, asserting that the firing violated the Uniformed Services
Employment and Reemployment Rights Act (USERRA) as well as the Americans With Disabilities
Act (ADA).7 On 6/21/2017, PF filed a motion to dismiss Kieffer’s federal claims (ADA and
USERRA) under Rule 12(b)(6) of the Federal Rules of Civil Procedure, and Judge Levy granted
the motion.
Under Rule 12(b)(6), the judge should assume to be true that all the facts alleged by the
plaintiff in his or her complaint. The judge should dismiss the complaint only if he or she can say
that there is no relief that the court can grant even if all the facts alleged by the plaintiff are
true.
Judge Levy concluded that USERRA does not require an employer to give an employee time off
(even without pay) for medical treatment, even when the need for medical treatment is the
direct result of a disability or condition sustained during active military service. Unfortunately,
Judge Levy’s conclusion is correct.

4 Kieffer’s branch of the military was not stated in the court decision.
5 The facts in this article come directly from Judge Levy’s decision, and she took the facts directly from Kieffer’s
complaint. Because this is a decision on the defendant’s motion to dismiss, the judge must take all the pleaded
facts as true.
6 PF’s employees are not represented by a labor union, and there is no collective bargaining agreement limiting
firing to “just cause.” Accordingly, Kieffer and the other PF employees are considered “employees at will,” like the
great majority of private-sector employees in our country. Employees at will can be fired for any reason or no
reason but not a reason that is forbidden by a specific federal or state law. Please see Law Review 0619 (May
2006). It is common that when firing an employee at will the employer will decline to state the employer’s
rationale for the firing, to avoid giving the fired employee “ammunition” for a wrongful discharge claim.
7 Kieffer’s ADA claim is not discussed in detail in this article, but I invite the reader’s attention to Judge Levy’s
decision for a discussion of the ADA.
Section 4303 of USERRA8 defines 16 terms used in this law. The term “service in the uniformed
services” is defined as follows:
The term "service in the uniformed services" means the performance of duty on a
voluntary or involuntary basis in a uniformed service under competent authority and
includes active duty, active duty for training, initial active duty for training, inactive duty
training, full-time National Guard duty, a period for which a person is absent from a
position of employment for the purpose of an examination to determine the fitness of the
person to perform any such duty, a period for which a System member of the National
Urban Search and Rescue Response System is absent from a position of employment due
to an appointment into Federal service under section 327 of the Robert T. Stafford
Disaster Relief and Emergency Assistance Act, and a period for which a person is absent
from employment for the purpose of performing funeral honors duty as authorized by
section 12503 of title 10 or section 115 of title 32.9
USERRA’s definition of “service in the uniformed services” is broad but not unlimited. It does
not include time away from work for medical treatment, but it does include time away from
work for a medical or other examination to determine fitness for military service.10
In 2009, Representative Lloyd Doggett of Texas introduced H.R. 466, the proposed “Wounded
Veteran Job Security Act.” If enacted, that bill would have amended section 4303(13) of
USERRA (the definition of “service in the uniformed services”) by adding an additional item—
time away from a civilian job for medical treatment necessitated by a wound, injury, or illness
incurred during active military service. Unfortunately, that bill was not enacted. There remains
a need for such an amendment.11
Because time away from a civilian job for medical treatment necessitated by a disability or
condition sustained during active military service is not included in USERRA’s definition of
“service in the uniformed services,” an employer is not required to give an employee time off
(even without pay) for a medical appointment under circumstances like Kieffer’s
circumstances, and it is not unlawful for an employer to discipline an employee for absences
from work for such medical appointments. Thus, Kieffer’s complaint did not establish a USERRA
violation even if the facts are exactly as alleged by Kieffer in his complaint, and Judge Levy
dismissed Kieffer’s USERRA complaint under Rule 12(b)(6).

8 38 U.S.C. 4303.
9 38 U.S.C. 4303(13).
10 Please see Law Review 09013 (April 2009).
11 Please see page 17 of Law Review 15089 (October 2015). In that article, I make more than 20 proposals for
statutory amendments to USERRA, and this is one of them,
This would have been an entirely different case if Kieffer had worked for PF before his relevant
period of uniformed service, had left the job for service, had met the USERRA conditions for
reemployment,12 and had returned to work for the pre-service employer (PF) after service. In
that case, the employer would have had the obligation to make reasonable efforts to
accommodate the disability that Kieffer sustained in Iraq. If Kieffer could not qualify for the job
even with reasonable accommodations, the employer would have been required to reemploy
him in another position for which he was qualified or could become qualified with reasonable
employer efforts.13

12 As is explained in detail in Law Review 15116 (December 2015) and many other articles, a person must leave a
civilian job to perform uniformed service (as defined by USERRA) and must give the employer prior oral or written
notice. The person must be released from the period of service without having exceeded the five-year limit on the
duration of the period or periods of uniformed service and without having received a disqualifying bad discharge
from the military. After release from service, the person must have made a timely application for reemployment
with the pre-service employer.
13 Please see Law Review 08054 (November 2008).

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