There are many different types of leave that employees are able to take. This includes state-mandated earned paid leave, sick leave, sabbaticals, and even military leave. Each of the different leaves come with different requirements. In this article, let’s take a look at how businesses should pay employees that are out on military leave.
What is military leave?
According to the U.S Department of Commerce, military leave is defined as approved absence from official duty for an employee who is a member of the National Guard or a reserve component of the Armed Forces. Military leave is authorized for days which the employee is ordered to active duty or inactive duty training, or is engaged in field or coast defense training.
How should business pay employees on military leave?
Employees on military leave are due the same rights and benefits as nonmilitary employees who take any comparable form of leave. Comparable is not well defined, but generally, you should look to other leaves of a similar duration. For example, if you would generally pay someone for one to five days of jury service leave, or up to a week of bereavement leave, you will want to also pay for a military leave of that approximate duration.
If you provide longer paid leaves, such as a four- to eight-week family wellness leave, then you should consider paying for a military leave of that approximate duration as well. Should you be questioning whether the other leaves you offer are comparable and you are considering not paying for a military leave, we recommend speaking with an attorney.
If there are no comparable paid leaves, businesses must treat their non-exempt and exempt employees differently. First, non-exempt employees would not need to be paid for military leave. Those employees that are classified as exempt have certain pay requirements based on the duration of the leave and when it falls in the workweek.
Exempt employee requirements
Employers may not reduce an exempt employee’s salary for partial week absences for military leave per the Fair Labor Standards Act (FLSA). If they work any part of the workweek in which they are absent for military leave, then they must be paid for the entire week. If an exempt employee does no work at all during the week, then they would not need to be paid, unless you would pay for a comparable leave. However, you can reduce an exempt employee’s salary by any payment they receive for their military service during the workweek when they are absent.
Under the Uniformed Services Employment and Reemployment Rights Act (USERRA), employers must provide employees returning from military service or training the right to be reemployed at his or her former job (or as nearly comparable a job as possible) with the same benefits. Furthermore, employers cannot require employees on military leave to use their paid time off benefits during absences. However, employees can voluntarily elect to use paid time off to cover absences.
Resources and next steps for businesses
It is important to have a policy in your company handbook that outlines all types of leave within your business. Below are some resources that businesses can use if their employees are requesting military leave. Finally, contact us for additional information or help managing any type of leave in your business.
Request for Military Leave of Absence