Do I have to pay an employee on military leave? Can I require the employee to use paid time off/vacation time?

Under the Fair Labor Standards Act (FLSA), exempt employees may not have their salary reduced for partial-week absences due to temporary military leave. If an exempt employee works any portion of the workweek and is absent the remainder of the week for military-related duties, the employer must pay the employee his or her full weekly salary as if he or she had worked the entire week. There is no requirement under the FLSA to pay exempt employees when they are absent for a full workweek and perform no work during the week. See 29 C.F.R. §541.602.

Several recent court cases have brought military leave pay obligations under the Uniformed Services Employment and Reemployment Rights Act (USERRA) into the spotlight. In general, the courts have found that USERRA requires employers to pay employees for military leave if the leave closely resembles other types of leave for which employees are paid. However, there is little clarity on what other types of leave are comparable to a military-related absence. This topic is one which employers should keep a close eye on and seek legal counsel as needed. See USERRA May Require Employers to Pay Reservists on Military Leave.

The use of paid time off/vacation benefits is the employee's choice for military-related absences. An employer is prohibited from requiring employees to use their leave benefits for a military absence; however, the employer must allow the use of paid leave if an employee requests it. See 20 C.F.R. §1002.153.

Company policies, collective bargaining agreements, and state and local laws may all have provisions for paid military leave that are more generous than USERRA. Employers should review all of these when encountered with a request for military leave.