When leave legislation and court cases impact employers, insurance carriers need agile absence management solutions in order to adapt in real time. In this blog, you’ll learn how recent court rulings may affect whether employers are required to provide paid leave under USERRA.
Employees who are called away from work due to their military service are entitled to various rights under the Uniformed Services Employee and Reemployment Rights Act (USERRA), including reemployment upon conclusion of military service and the same rights and benefits as employees who are not service members. While USERRA doesn’t outright dictate that the employee’s military leave is paid, two federal courts of appeals this year have taken up the issue of whether USERRA leave is a paid leave and concluded that employers who pay for other types of employee leave may be required to pay for an employee’s USERRA leave.
USERRA mandates that an employer furnish the same rights and benefits (i.e., terms, conditions and privileges of employment) to employees on military leave as it does for employees on comparable non-military leave.
In White v. United Airlines, Inc., et al., pilots who took leave for their military reserve duty alleged United Airlines violated USERRA when it did not grant them paid leave and profit-sharing credit while they were on short-term military leave. United Airlines pays for sick leave and jury duty and the pilots argued that those paid leaves were comparable absences to their leave for military reserve duty. In its decision this past February, the Seventh Circuit invalidated the lower court’s decision that neither jury duty nor sick leave were comparable leaves to the pilots’ short-term reservist leave. The Seventh Circuit sent the case back to the lower court to review the facts to determine if the leaves were comparable, which would then require United Airlines to pay for the pilots’ military leave.
Similarly, earlier this month, the Third Circuit Court of Appeals determined that a FedEx employee who took leave from work to fulfill his Naval Reserve duties was entitled to pay for that leave because FedEx pays for jury duty, illness, and bereavement leave. In Travers v. Federal Express Corporation, the Third Circuit vacated the lower court’s order dismissing Travers’ claim and remanded the case back to that court, reinstating Travers’ USERRA claim.
Both the Seventh and Third Circuit courts argued that USERRA’s mandate the employers provide the same “rights and benefits” to employees on military leave to employees on other leave, includes the right to pay during USERRA leave for military reserve duties, if employers pay for other types of leave such as sick leave and jury duty.
What Employers Should Do Now
If employers are located in either of these jurisdictionsi, it’s worth reviewing the company’s paid time off and USERRA military policies. Consider conforming these policies for the immediate future. At a minimum, employers need to watch this space around paid military leave to see if other courts follow the Seventh and Third Circuit’s lead.
We are seeing a trend in offering paid time off, so it’s no surprise to see the U.S. Courts following suit as they decide cases and interpret laws. Workers are stretched in their personal and professional lives and employee benefits are a way to alleviate employees’ time and financial concerns. Additionally, from a policy standpoint, military service is an honorable and currently voluntary duty in the United States. For these reasons, recently, employers have been reconsidering their ability to pay for certain types of leave and USERRA military leave should be part of that consideration. Certainly, for employers who offer any type of paid leave, assess your USERRA-covered military leave policy in light of these two new court cases.
Using modern insurance technology solutions like the FINEOS Platform can ease the administrative burden of employer-provided paid leave. Any rulings impacting statutory leave laws, such as USERRA, will also impact employer-provided paid leave policies that concern them. Learn more about how a modern, integrated disability and absence management solution can help your organization adapt to these changes and remain in compliance here.
