December 29, 2021

Attorney General Releases Opinion on Military Pay

Kentucky’s Attorney General Daniel Cameron asked the League for our thoughts on an issue that has cropped up in recent years - must an employer pay military leave to an employee for the dates that the employee was not otherwise scheduled to work?

We are happy that in OAG 21-14, issued on December 28, 2021, the attorney general agreed with KLC in that the language of KRS 61.3941 granting employees a leave of absence from their respective duties, without loss of time, pay, or regular leave to an employee serving under military orders for a period or periods not exceeding 21 calendar days only applies to those 21 calendar days that the employee would otherwise be scheduled to work. The attorney general drew a comparison to sick and annual leave in noting that those leaves are not required to be taken if the day of the leave is not on a day the employee would otherwise not be working. Logically extending this line of thought to the military leave at issue here, “[t]here is no need to request leave from an employer for days on which an employee is not scheduled to work.”

The concluding paragraph of the opinion puts this reasoning best:

The purpose of KRS 61.394 is expressed in its text – to encourage military service and provide relief for the men and women who give their time for the national defense. The General Assembly has provided that certain employees are “entitled to leave of absence from their respective duties, without loss of time, pay, [or] regular leave[.].” KRS 61.394 and KRS 61.396 provides that if subject to competent orders, a firefighter employed by a fire protection district created under KRS Chapter 75 is entitled to no more than 21 days of military leave only during a “leave of absence” from previously scheduled work or work that would otherwise be performed.

KLC is thankful for the clarification on this issue for not just fire districts but cities as well under KRS 61.394. Our cities will also need to be mindful of the fact that the statute means that there is no “running clock.” A city cannot look at a period of time where an employee would only have been scheduled to work five days but is under military orders for ten days and pay for the five days but subtract the ten from the 21 calendar days of military leave in a year.

If you have any additional questions, please feel free to contact the KLC Municipal Law Department at 1-800-876-4552.

1 And by extension, KRS 61.396 because the specific issue before the attorney general came from a fire protection district.