Military Leave Benefits Expansion? Things to Consider

By Andrea Lux Miyashita - Marr Jones & Wang

August 20, 2021

The Uniform Services Employee and Reemployment Rights Act (USERRA) requires employers to treat military service members equally to employees on other types of leave. Does that mean if your employment policies provide for paid short-term leaves, for examplebereavement leave, you are bound to provide paid military leave – which can extend for up to five cumulative years -- as well? At least two federal courts of appeals think you may be.

In 2021, the United States Courts of Appeals for the Third and Seventh Circuits issued opinions that permitted military service members to bring lawsuits (including one putative class action) against their private employers under USERRA, based on the plaintiffs’ claim that employees on military leave were not given the same “rights and benefits” as employees on non-military leaves. Specifically, the courts held that employers who provided paid leave for other absences, such as jury duty, bereavement leave, and sick leave, may be obligated to provide paid leave to employees on military leave if the benefits are found to be “comparable.” Of potential concern is the fact that these courts rejected the employers’ arguments that, on their face, paid leaves such as jury duty, bereavement leave and sick leave, are not “comparable” to military leave, and the courts instead allowed the cases to proceed to consider the “comparability” of the leaves offered by the particular employer.

While the Third and Seventh Circuits do not have jurisdiction over Hawaii, Hawaii employers are all too frequently reminded that the Ninth Circuit – which does have jurisdiction over Hawaii – tends be more “employee friendly” than many other circuits. Thus, if other circuits have reached such employee-friendly rulings, there is a reasonable risk the Ninth Circuit will follow suit.

However, all is not lost. At least one federal district court within the Ninth Circuit has found, based on the particular facts of that case, that military leave was not comparable to jury duty, bereavement leave, and sick leave, and thus the employer’s decision to provide paid jury duty, bereavement and sick leave did not mean the employer had to provide paid military leave. To evaluate comparability, the district court (which is true of courts generally) analyzed three factors:

1. The duration of the leave (this has been said to be the most significant factor to compare);
2. The purpose of the leave; and
3. The ability of the employee to choose when to take leave.

In reaching its decision, the district court noted the “significant differences” in duration and frequency between military leave, on the one hand, and jury duty, bereavement leave, and sick leave, on the other. The court also concluded that these leaves are not comparable to military leave in terms of purpose. The district court further found that the ability to choose when to take leave (or, at minimum, the flexible nature of a reservist’s schedule) also supported a finding of incomparability given that military reservists typically receive their military duty schedules months in advance, whereas jury duty, bereavement, and sick leave tend to occur with little to no notice, which makes advance planning for those leaves more difficult. Finally, the district court found that military leave is automatically granted, which is not true of bereavement, sick leave, and vacation. This decision is not binding in Hawaii, but hopefully it will be persuasive authority should the issue arise here.

Ultimately, USERRA mandates only equality of treatment; it does not specify how generous or how frugal an employer’s paid leave policies must be. Therefore, employers should review their policies and practices and consider whether revisions or refinements might be prudent to limit the risk that more paid leave than intended will be required.

As always, MJW attorneys are available to answer any questions and to review your handbooks and/or policies.