Appeals Court Clarifies Military Service Leave for Public Employees

In a decision issued on November 21, 2025 the Appeals Court has interpreted a Massachusetts statute that governs the obligation of public employers to compensate employees who are on certain military leaves.

In Driscoll v. City of Melrose, No. 24-P-1114 (2025) the court interpreted the relevant provisions of G.L. c. 33, §59(a) in the context of a municipal firefighter whose regular work schedule was a twenty-four hour shift (consisting of a ten-hour day shift followed by a fourteen-hour night shift, followed by one day off, by another twenty-four hour shift, and by five days off). Section 59 applies to State employees but under §59(e) the statute can be accepted by a municipality. Section 59(a) provides that an employee is entitled to their full regular pay while on leave for certain military activities. The entitlement to leave without loss of pay covers service “not exceeding 40 days in any federal fiscal year”, which commences on October 1. The statute defines “day” as “any 24-hour period regardless of calendar day”.[1]

The firefighter filed a lawsuit because the City had asserted that (1) the 40 days during the federal fiscal year that are referred to in §59(a) must be “consecutive” and (2) the firefighter’s 24-hour shift covered two “days”. After the Superior Court agreed and entered summary judgment, the firefighter appealed.

The Appeals Court reversed. First, the court held that the plain meaning of the language used in the statute is that the firefighter must be compensated regardless whether the 40 days are consecutive or not. It noted that by contrast two other paragraphs in §59 use the word “consecutive”, that the Legislature chose not to use that term in §59(a), and that it was “beyond [the court’s] authority to “add” a word to the statute”. As further support the court pointed out that two types of covered service for National Guard members in the Reserve – “annual training” and “drills and parades” – would cumulate throughout a calendar year. Finally, the court rejected the City’s argument that its 2000 decision in Glass v. Lynn, 49 Mass.App.Ct. 352 (2000) controlled. The court held that at the time that case was decided, the statute used the term “annual tour of duty”, which connotes “consecutive” calendar days, but that the Legislature eliminated that term when it amended §59(a) in 2014.

Turning to the City’s argument that the firefighter’s 24-hour shift should count as two calendar days toward the 40-day fiscal year limit, the court succinctly rejected that argument. It noted that the statute expressly states that “day” is defined as “any 24-hour period regardless of calendar day”. The court ruled that the firefighter’s twenty-four hour shifts each constituted only one day towards the total of 40.

Driscoll provides important updated guidance from the court regarding how the statute must be read following its post-Glass amendment.

For those municipalities which have accepted §59 or which incorporate it into collective bargaining agreements, correct application of its several provisions to the different types of military service covered can be complicated. We are pleased to advise public employers on issues arising under chapter 33 and under USERRA.

This update is provided for informational purposes only and should not be considered legal advice.

 

[1] Sections 59(b) – 59(d) provide different entitlements for categories of military service not covered by §59(a). These categories were not at issue in the Driscoll case.