February 03, 2021

May, Must or in the Middle?

I am often asked what an employer must do for an employee, such as, “Am I required by law to provide paid leave?” When the answer is, “No,” that tends to be the end of the discussion.  This case gave me pause and served as a reminder to ponder what we may, must, could, or should do for our employees and for those who serve our country.

In 1994, Congress passed the Uniformed Services Employee and Reemployment Rights Act (USERRA) with the goal of prohibiting civilian employers from discriminating against employees because of their military service. The question recently before the 7th Circuit U.S. Court of Appeals was, “…whether USERRA’s mandate that military leave be accorded the same ‘rights and benefits’ as comparable, nonmilitary leave requires an employer to provide paid military leave to the same extent that it provides paid leave for other absences, such as
jury duty and sick leave.”

A pilot filed a lawsuit after we was denied paid leave for his military service, but employees who were absent for jury duty or illness were provided with paid leave.  The employee lost in the lower court but won here.  After some in-depth, grammatical analyses, the 7th Circuit ruled that the “rights and benefits” referenced in USERRA include paid leave.

Practical Take-Aways. Not all courts that have considered this question have landed in the same place on this issue.  This may be as much an employee relations issue, as a legal one.  I sometimes remind employers, just because you can do something does not mean that you necessarily should do it.  Likewise, just because you may not have to do something, does not mean you should not.  In each instance, let your business needs drive your employment decisions.  Where you do not have a bona fide, business reason for (not) doing something for or to an employee, you may want to reconsider and ask yourself, “Why (not)?”