Request By:
Kevin F. Groody
Fire Chief
Anchorage Middletown Fire and Emergency Medical Services Department
Opinion
Opinion By: Daniel Cameron, ATTORNEY GENERAL; Marc Manley, Assistant Attorney General
Opinion of the Attorney General
KRS 61.394 and KRS 61.396 require that fire protection districts organized under KRS Chapter 75 must provide firefighter employees paid military leave while such employees are serving under military orders. OAG 21-07. At issue is how such fire protection districts must calculate the leave required under KRS 61.394 and KRS 61.396. Anchorage Middletown Fire & EMS asks whether its employees are entitled to a full 21 calendar days of paid military leave whenever military orders are issued, or whether employees are entitled to paid military leave only for previously scheduled work days. 1For the reasons below, it is the Attorney General's opinion that KRS 61.394 and KRS 61.396 require paid military leave only during a "leave of absence" from previously scheduled work or work that would otherwise be performed.
The law provides:
KRS 61.394 (emphasis added). KRS 61.396, which incorporates by reference KRS 61.394, requires "counties, municipalities, school districts or other political subdivisions of the state," such as fire protection districts created under KRS Chapter 75, to provide the same amount of military leave to employees serving under competent military orders. See OAG 21-07.
In
Butterbaugh v. Department of Justice , 336 F.3d 1332 (Fed. Cir. 2003), the United Stated Court of Appeals for the Federal Circuit considered the meaning of 5 U.S.C. § 6323(a)(1), which provides similar military leave benefits for those employed by the federal government and the District of Columbia. Under that provision, those employees are "entitled to leave without loss in pay, time, or performance or efficiency rating for active duty, inactive-duty training," funeral honors, and certain other military-related activities. 5 U.S.C. § 6323(a)(1) (emphasis added). But leave from what? In Butterbaugh , the court reasoned that the provision only applied when the employee was scheduled to work. See id. at 1333 ("employees need take military leave only for those days on which they are required to work, and that section 6323(a)(1) thereby grants up to 15 workdays of military leave"). And that makes sense. Cf. Butterbaugh , 336 F.3d at 1337 ("As a general matter, employees are not accountable to their employers for time they are not required to work."). There is no need to request leave from an employer for days on which an employee is not scheduled to work.
The reasoning in Butterbaugh is persuasive. KRS 61.394 unambiguously provides that employees "under competent orders" are "entitled to leave of absence from their respective duties, without loss of time, pay, [or] regular leave[.]" This form of leave is, in essence, a type of paid "leave of absence," like sick, annual, or compensatory leave. 2If an employee is not scheduled to work on a given day, there is no reason for the employee to take a "leave of absence." Thus, there would be no need for the leave afforded under these statutes.
The purpose of KRS 61.394 is expressed in its text--to encourage military service and provide some 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 provide 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.
Footnotes
Footnotes
1 The Department explains that most of its firefighters are assigned three 24-hour shifts per week.
2 For good measure, Kentucky's highest court has held that Section 3 of the Kentucky Constitution, which prohibits the "grant of exclusive, separate public emoluments or privileges . . . to any man or set of men, except in consideration of public services," Ky. Const. Section 3, does not prohibit the provision of additional benefits to members of the armed services, Grise v. Combs , 342 S.W.2d 680, 683 (Ky. 1961) ("military [service] is a public service for which a grant of separate emoluments may be made under Sec. 3 of the constitution"); see also OAG 82-305 (holding that the payment of military leave to employees under KRS 61.396 does not violate Section 3 of the Kentucky Constitution).