Does a Kentucky fire district owe a firefighter paid military leave for days the firefighter wasn't scheduled to work?

Plain-English summary

Firefighters at the Anchorage Middletown Fire & EMS Department often work three 24-hour shifts a week, so their schedules do not match a normal Monday-through-Friday calendar. That created a question about paid military leave. Kentucky law gives public employees who serve in the National Guard or reserves up to 21 days of paid military leave per fiscal year. The fire chief asked: when a firefighter gets military orders, does the district owe leave for a full block of calendar days, or only for the specific shifts the firefighter was scheduled to work?

The Attorney General concluded the leave is owed only for previously scheduled work days. The statutes (KRS 61.394 and KRS 61.396) describe the benefit as a "leave of absence" from the employee's "respective duties," without loss of time or pay. The opinion reasoned that you only need a "leave of absence" from days you were actually supposed to work. If a firefighter is not scheduled on a given day, there is nothing to take leave from.

The opinion found persuasive a federal case, Butterbaugh v. Department of Justice, which interpreted a similar federal military-leave statute (5 U.S.C. § 6323) to apply only to days the employee was required to work, reasoning that employees are not accountable to their employers for time they are not required to work. Applying the same logic, the opinion held that a firefighter is entitled to paid military leave (capped at 21 days per fiscal year) only during a leave of absence from previously scheduled work, or work that would otherwise have been performed.

What this means for you

Fire districts and public employers

Under this opinion, KRS 61.394 and KRS 61.396 require paid military leave only for a firefighter's previously scheduled work days (or work that would otherwise have been performed), not for every calendar day covered by military orders, subject to the 21-day-per-fiscal-year cap.

Firefighters and National Guard members

The opinion treats the benefit as a paid "leave of absence" from shifts you were scheduled to work. Days you were not scheduled to work do not count against, and are not separately paid under, the military-leave entitlement.

Human resources administrators

For calculating leave on non-standard schedules, the opinion's approach is to look at the shifts the employee would otherwise have worked during the period of military orders, rather than counting straight calendar days.

Common questions

Q: Does a fire district pay military leave for days a firefighter wasn't scheduled?
A: No, according to this opinion. The Attorney General read KRS 61.394 and KRS 61.396 to require paid military leave only during a leave of absence from previously scheduled work.

Q: How much paid military leave is available?
A: The opinion notes the statute provides paid military leave for a period or periods not exceeding 21 calendar days in a federal fiscal year, with unused leave carried over and expiring two years after it accrues.

Q: Why does the firefighter's schedule matter?
A: Because the benefit is framed as a "leave of absence" from one's duties. The opinion reasoned that there is nothing to take leave from on a day the employee was not scheduled to work.

Q: What federal case did the opinion rely on?
A: Butterbaugh v. Department of Justice, where the Federal Circuit read a comparable federal military-leave statute to apply only to days the employee was required to work.

Background and statutory framework

KRS 61.394 entitles state officers and employees who are members of the National Guard or reserves to a paid "leave of absence from their respective duties," without loss of time or pay, for a period not exceeding 21 calendar days in a federal fiscal year, with carryover and a two-year expiration. KRS 61.396 extends the same benefit to counties, municipalities, school districts, and other political subdivisions, including fire protection districts created under KRS Chapter 75 (see OAG 21-07). The opinion read "leave of absence" to mean leave from previously scheduled work, finding Butterbaugh v. Department of Justice persuasive on the parallel federal statute (5 U.S.C. § 6323(a)(1)). It noted (citing Grise v. Combs and OAG 82-305) that providing military-leave benefits does not violate Section 3 of the Kentucky Constitution.

Citations and references

Statutes and constitution:
- KRS 61.394 (paid military leave; 21-day cap); KRS 61.396 (political subdivisions)
- KRS Chapter 75 (fire protection districts); 5 U.S.C. § 6323(a)(1) (federal counterpart)
- Ky. Const. § 3 (public emoluments)

Cases:
- Butterbaugh v. Department of Justice, 336 F.3d 1332 (Fed. Cir. 2003)
- Grise v. Combs, 342 S.W.2d 680 (Ky. 1961)

Source

• Landing page: https://www.ag.ky.gov/Opinions/Pages/default.aspx
• Original PDF: https://www.ag.ky.gov/Resources/Opinions/Opinions/OAG%2021-14.pdf

Original opinion text

The full opinion as issued by the Office of the Kentucky Attorney General:

Commonwealth of Kentucky
Office of the Attorney General
Daniel Cameron, Attorney General
Capitol Building, Suite 118, 700 Capital Avenue, Frankfort, Kentucky 40601
December 28, 2021
OAG 21-14
Subject: Whether a fire protection district created pursuant to KRS Chapter 75 must provide paid military leave to a firefighter employee on those dates on which the employee was not previously scheduled to work.
Requested by: Kevin F. Groody, Fire Chief, Anchorage Middletown Fire and Emergency Medical Services Department
Written by: Marc Manley, Assistant Attorney General
Syllabus: KRS 61.394 and KRS 61.396 require a fire protection district organized pursuant to KRS Chapter 75 to provide paid military leave to employees who are members of the National Guard, or any other reserve component of the United States Armed Forces, when the employee is serving under competent orders of those military forces only during a "leave of absence" from previously scheduled work or work that would otherwise be performed.

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. [The Department explains that most of its firefighters are assigned three 24-hour shifts per week.] For 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:

All officers and employees of this state, or of any department or agency thereof who are members of the National Guard or of any reserve component of the Armed Forces of the United States, or of the reserve corps of the United States Public Health Service, shall be entitled to leave of absence from their respective duties, without loss of time, pay, regular leave, impairment of efficiency rating, or of any other rights or benefits to which they are entitled, while in the performance of duty or training in the service of a state or of the United States under competent orders as specified in this section. In any one (1) federal fiscal year, officers or employees, while on military leave, shall be paid their salaries or compensations for a period or periods not exceeding twenty-one (21) calendar days. Any unused military leave in a federal fiscal year shall be carried over to the next year. Any unused military leave shall expire two (2) years after it has accrued.

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. [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).] If 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.

Daniel Cameron
ATTORNEY GENERAL
Marc Manley
Assistant Attorney General