The U.S. Court of Appeals for the Ninth Circuit found that employers who provide paid leave for short-term absences may be required to provide similar paid leave for short-term military purposes under the Uniformed Services Employment and Reemployment Rights Act.
USERRA requires employers to 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, courts will consider the duration and purpose of the leave, as well as the ability of the employee to choose when to take the leave.
In Clarkson v. Alaska Airlines, Inc., the employer provided short-term paid leave for non-military reasons, including jury duty, bereavement and sick leave. The Ninth Circuit explained that paid non-military leaves should not be compared to all military leaves, which can last from a few days up to years. Rather, a USERRA claim for leave may be defined by the particular length of the military leave at issue. Thus, the Ninth Circuit held that a jury could find the identified non-military paid leaves to be comparable to a short-term military leave.
The amount – duration and frequency – of paid military leave would be determined by the amount of paid non-military leave available. The Ninth Circuit used the example that “if the employer only provides three days of paid bereavement leave per year or only offers the difference in pay between the employee’s salary and the compensation for jury duty…, that is all the employer would be required to provide to the servicemember.”
The Ninth Circuit is not alone in finding that USERRA may require paid leave co-extensive with other paid leaves. The Seventh Circuit also came to this conclusion, as we discussed in our February 2021 E-Update. Thus, employers who voluntarily provide paid bereavement leave or jury duty leave to employees should carefully consider whether they should also be providing paid leave of similar duration and frequency for military purposes, including short-term annual training.