Employers May Be Required to Provide Paid Short-Term Military Leave Under USERRA


The U.S. Court of Appeals for the Third Circuit has joined several sister Circuits in finding that employers who provide paid leave for short-term absences, like jury duty or bereavement leave, may be required to provide similar paid leave for short-term military purposes under the Uniformed Services Employment and Reemployment Rights Act.

Under USERRA, employers must provide employees on military leave with the same rights and benefits that are provided to employees on other, similar leaves. If the benefits vary, the employee must be given “the most favorable treatment according to any comparable form of leave.” In assessing comparability, the applicable regulations set forth factors for courts to consider: the duration and purpose of the leave, as well as the ability of the employee to choose when to take the leave, in addition to any other factors the courts may choose to consider.

In Scanlan v. American Airlines Group, Inc., a group of pilots sued their employer, arguing that they should have received paid military leave under USERRA since the employer provided paid leave for bereavement and jury duty. The Third Circuit held that a jury could find these three types of leave to be comparable. The parties agreed that the duration of the leaves were similar (between 1-3 days), although military leave was used more frequently than the other leaves. All the leaves had a public purpose – the bereavement leave promoted public safety by allowing pilots time to grieve, while jury duty and military leave have a civic duty purpose, although jury duty is compulsory while military duty is not. There is little control over when jury duty or bereavement leave is required, but the parties disagreed over the pilots’ ability to schedule their military leave. The Third Circuit held that it was up to the jury to weigh any differences.

This is the third U.S. Court of Appeals (in addition to the Ninth and Seventh Circuits) in recent years to hold that short-term military leave might be sufficiently comparable to other short-term paid leaves such that it should be paid. Employers should be aware that, if they provide paid short-term leaves for other reasons, their generosity may trigger obligations to provide equivalent paid short-term military leave.

y, a new law will prohibit all employers with any employees in the County from asking for or seeking healthcare information unless it is necessary to determine if an applicant meets job qualifications that have been published prior to the acceptance of applications. Employers are also prohibited from asking applicants about sexual or reproductive health information, including information related to abortion care, miscarriage, contraception, sterilization, pregnancy, sexually transmitted diseases, fertility treatment, gender affirming care, or family planning. It is worth noting that, under Maryland law, employers may not require applicants to provide health information that is unrelated to the job, while the Americans with Disabilities Act prohibits employers with 15 or more employees from asking disability-related questions of applicants prior to a conditional job offer. The law will take effect on July 26, 2024.