When Does Military Leave Have to Be Paid?

[Editor's note: The 9th U.S. Circuit Court of Appeals reversed the district court's ruling in Clarkson v. Alaska Airlines.]​

One misconception about military leave is that employers never have to pay for this time off. But sometimes military leave does have to be paid, such as when it's comparable to other kinds of paid time off like sick leave or jury duty leave.

"Recent appellate decisions make clear that a lack of comparability may not be assumed as a matter of law," said Mark Girouard, an attorney with Nilan Johnson Lewis in Minneapolis. Employers can prevail under the particular facts of their leave policies, he added.

In light of the recent decisions, "employers would be well-advised to review their paid-leave policies and consider paying for shorter periods of military leave, if they do not already, as it will be more difficult for them to argue that those shorter periods are not comparable to periods of nonmilitary leave for which the employer provides pay," Girouard said.

USERRA Requirements

Under the Uniformed Services Employment and Reemployment Rights Act (USERRA), employees who provide notice to an employer of a need for leave to perform voluntary or involuntary service in the uniformed services are entitled to leave for up to five nonconsecutive years, said Carmen Decot, an attorney with Foley & Lardner in Milwaukee.

Uniformed services include the Army, Navy, Marine Corps, Air Force, Coast Guard, Reserves and federal National Guard.

One common myth about USERRA is that it applies only to members of the Reserves or National Guard, said Tom Spiggle, a plaintiff's attorney with The Spiggle Law Firm in Alexandria, Va.

Decot added that service includes active duty, active and inactive duty training, fitness-for-duty examinations, and funeral honors duty.

"Some categories of service, such as required training for Reservists and National Guard members, are exempt from the five-year limitation," she said.

At the end of service, eligible employees who apply for re-employment within USERRA's specified time periods are entitled to be promptly re-employed in the job the workers would have been in but for the absence due to military service, Decot explained. This is known as the escalator provision. In some cases, an employee is to be placed in a comparable job.

Returning employees are entitled to the seniority and seniority-based benefits they would have received with reasonable certainty if they had not taken leave. Employees who have taken military leave also are entitled to receive any other benefits that are available to employees on comparable nonmilitary leaves of absence.

Employees covered by USERRA have the right to be free from discrimination and retaliation based on their membership, application for membership, or service in the uniformed service or their participation in any activity protected by USERRA, Decot noted.

Recent Decisions

In a 2021 decision, White v. United Airlines Inc., the 7th Circuit ruled that paid military leave falls within the rights and benefits covered by USERRA.

"The 7th Circuit emphasized that USERRA does not require military leave to be paid in all circumstances," Decot said. "However, military leave must be treated the same as other comparable types of leave provided by an employer. If an employer provides other types of paid leave, the employer is required to pay for military leaves that are comparable to those other paid leaves."

Determining whether a military leave is comparable to paid leave provided by the employer focuses on such factors as the duration of the leave, the purpose of the leave and the ability of the employee to choose when to take the leave, Decot explained. This is referred to as the three-factor test.

In another 2021 decision, Travers v. Federal Express Corp., the 3rd Circuit reached the same conclusion. The 3rd Circuit stated that "USERRA does not allow employers to treat service members differently by paying employees for some kinds of leave while exempting military service."

However, Girouard said, district courts have applied the comparability analysis and found military and other forms of leave not to be comparable.

In the 2021 decision of Clarkson v. Alaska Airlines, the U.S. District Court for the Eastern District of Washington considered duration of different kinds of leave. "The evidence was that for the defendant's employees, jury duty, sick and bereavement leaves generally lasted three to five days, with the longest leave lasting six days, but military leaves were longer and generally lasted for nine days or more," Girouard noted.

The court also noted that the majority of employees used bereavement or jury duty leave only once while members of the plaintiffs' purported class took between 17 and 47 military leaves per employee. In addition, the average number of sick days per employee was 33, compared to an average of 359 days of military leave for class members during the same period.

"Based on these differences, the court concluded that the military leave was not comparable to jury duty, sick or bereavement leave in terms of duration or frequency," Girouard said.

As for purpose, the court concluded that a primary reason for military leave is to allow employees to pursue parallel careers in the military and earn additional income. By contrast, the purpose of jury duty is to fulfill a required duty, the purpose of bereavement leave is to grieve the death of a loved one, and the purpose of sick or vacation leave is to allow time for rest. The court concluded that military leave was not comparable to other forms of leave in terms of purpose.

Military leave was automatically granted while other forms of leave were subject to approval, Girouard noted.

Don't Preclude Possibility of Paid Military Leave

Nonetheless, Christine Hawes, an attorney with Crowell & Moring in Washington, D.C., said employers should ensure their policies do not preclude the possibility of paid military leave under any circumstance.

Employers should apply the three-factor test to make explicit policy rulings about when military leave will be paid because it is comparable to other forms of paid leave, Hawes added. "Employers should also take care to document their determinations on these issues in case of disputes or litigation."