Paid Military Leave May Be Required Under USERRA

For the first time, a federal appellate court has ruled that the Uniformed Services Employment and Reemployment Rights Act requires employers to provide paid military leave to the extent it provides other, comparable types of paid leave, like jury duty or sick leave.

Under USERRA, employees on military leave must be accorded the same “rights and benefits” as those on comparable non-military leave. In White v. United Airlines, Inc., the U.S. Court of Appeals for the Seventh Circuit held that such rights and benefits include paid leave. Thus, employers must provide paid military leave to the same extent that it provides paid leave for other reasons that are comparable. The Department of Labor has identified three factors to be considered in the comparability analysis: most significantly, duration, but also the purpose of the leave and the ability of the employee to choose when to take the leave. Thus, the paid leave requirement under USERRA may apply, for example, to reservists taking leave for short-term, annual military training, as was the situation in this case.