ST48 Vermont (December 2007; updated August 2010 - no changes to law)
1.18: USERRA and Other Laws
2.0: Paid Leave

Military Leave for Public Employees in Vermont

By Captain Samuel F. Wright, JAGC, USN (Ret.)

Vermont law does not provide for paid military leave for employees of the state and its political subdivisions. In 2002, S. 284 would have provided for such paid military leave, but that bill was not enacted.

Vermont Statutes, Title 21, section 491(a) requires employers (including private employers, as well as the state and its political subdivisions) to grant up to 15 days of military leave per year. That section also provides, “A leave of absence shall be with or without pay as determined by the employer.”

Section 491(a) is essentially pointless because the federal Uniformed Services Employment and Reemployment Rights Act (USERRA) requires employers to grant unpaid military leave, essentially without limit. USERRA applies to state and local governments, as well as private employers and the federal government.

Insofar as Vermont’s section 491(a) purports to limit unpaid military leaves to 15 days per year, that section is clearly void. Section 4302(b) of USERRA [38 U.S.C. 4302(b)] provides that USERRA overrides a state law that purports to limit USERRA rights or that imposes an additional prerequisite on the exercise of USERRA rights. Article VI, Clause 2 of the U.S. Constitution (commonly called the “Supremacy Clause”) provides that federal law trumps conflicting state law. See Gibbons v. Ogden, 22 U.S. 1 (1824).

Vermont law contains several other provisions (relating to state and local government employees and military service) that are invalid under the Supremacy Clause of the U.S. Constitution.

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