August 10, 2021

Courts Weigh In: USERRA & Paid Military Leave

On August 10th, the 3rd U.S. Circuit Court of Appeals addressed the question of whether an employer must provide paid leave to an employee who is called to covered military service under the Uniformed Services Employment and Reemployment Rights Act (USERRA).  If you read FiveL’s article about the 7th Circuit’s answer to the same question back in February, you might not be surprised.  It is a qualified “Yes” and “It depends.”

The 3rd Circuit’s answer was similar to the 7th, “We conclude the best reading of USERRA directs employers to provide the benefit of compensation when they choose to pay other employees for comparable forms of leave.” Once again, the key was in defining “comparable” leave.

The court looked to the employer’s “human resource guides and manuals” and found they provided pay for leave for other absences from work such as for sick leave or jury duty. The court sums it up fairly succinctly writing, “Best understood, USERRA does not allow employers to treat servicemembers differently by paying employees for some kinds of leave while exempting military service.”

Lessons Learned? Review your Employee Handbook.

  1. Do you have a military leave policy? If not, consider adding one.
  2. Does your policy provide at least as much paid time off as you provide for other, comparable forms of leave? If not, consider doing so.
  3. Does your policy comply with any state or local military leave laws that might apply? If you are not sure, check and update as needed.