Analysis of Paid Military Leave by the Appeals Court

We don’t often get appellate court analysis of the calculation of paid military leave, so the Appeals Court decision in Driscoll v. City of Melrose, No. 24-P-1114 (Nov. 21, 2025) is instructive. The facts were undisputed. For municipalities that have accepted the statute, G.L. c. 33, § 59(a) requires municipal employers to pay the full salary to an employee on military service for up to “40 days in any federal fiscal year,” with a day meaning “any 24-hour period regardless of calendar day.” The employee at issue was a city firefighter who worked 24-hour shifts on non-consecutive days. The firefighter missed a total of 42 shifts for military training and active duty in one federal fiscal year and over 70 shifts in the next fiscal year. The City paid him for 20 shifts in each year, arguing that it was required only to pay for the first 40 consecutive days of an annual tour of duty. The firefighter and the Attorney General, the latter weighing in at the request of the Court, argued that pay is required for any 40 days in a federal fiscal year.  

The Appeals Court agreed with the firefighter and the Attorney General. It found that the plain and ordinary meaning of the statute did not require that the days of service be consecutive. In so finding, the Court noted that other subsections expressly refer to consecutive days, while subsection (a) does not. There was a subsidiary disagreement over whether the 24-hour shift, starting at 7 am and ending at the same time the following calendar day, counted as one or two days of service. The Court had no trouble relying on the express language of the statute, defining day as “any 24-hour period regardless of calendar day,” to conclude that the loss of one shift was one day of military service. The City’s reliance on a hearsay statement from a legislator who helped draft the statute was given no weight, the Court colorfully dismissing it by stating: “Even those susceptible to the siren call of statements of individual legislators explaining their personal understanding of laws would require no beeswax in their ears to resist this argument.”  

The trial court’s ruling in favor of the City was reversed.