February 03, 2021

Paid Military Leave & Expressio Unius

No, it’s not a new coffee drink. Expressio unius est exclusio alterius means the mention of one item excludes others.  What does it have to do with paid military leave? That’s what I wondered.

The question recently before the 7th U.S. Circuit Court of Appeals was whether an employer that offers paid leave benefits for specific absences such as for sick leave, bereavement, or jury duty, must offer at least the same amount of paid leave for military duty.  Two words: it depends.

The Uniformed Services Employment and Reemployment Rights Act (USERRA) regulations provide that a person who is absent due to military service should receive the same “rights and benefits” as an employee who is absent for a non-military reason.

Rights and benefits are defined as, “…terms, conditions or privileges of employment…(including wages and salary for work performed).” The employer asserted that under the concept of expressio  unius, paid leave benefits must not be included because they were for work not performed, not for work performed as expressly mentioned in the parenthetical note.  The court’s response?  “That is not a bad point, but we are not persuaded.”

The court held that USERRA does provide the right to paid leave benefits for military service if  the leave for a non-military reason is “comparable” to the military leave.  How does an employer determine if leave is comparable?

The court looked to another part of the regulations that give some guidance. “In order to determine whether any two types of leave are comparable, the duration of the leave may be the most significant factor to compare. For instance, a two-day funeral leave will not be “comparable” to an extended leave for service in the uniformed service. In addition to comparing the duration of the absences, other factors such as the purpose of the leave and the ability of the employee to choose when to take the leave should also be considered.”

Stay tuned.

  1. The 7th Circuit did not provide an answer in this case. It remanded the case to the lower court to determine if the employer’s paid jury leave was comparable to military leave.
  2. In the interim, consider your policy, practice and apply the factors listed above to determine if you should provide paid leave for military service.  Having said that, remember you can provide a benefit greater than what the law requires.
  3. Even if you determine the answer is, “No,” you might decide to go ahead and do so to support those who serve our country.
  4. Also, consider if you have a state or local law that requires paid military leave.