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How to comply with New York’s new Military Spouse Leave Law

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in Employment Law,FMLA Guidelines,Human Resources

In August 2006, Gov. George Pataki signed New York’s new Military Spouse Leave Law, which allows spouses of deployed military reservists to take up to 10 days of unpaid leave from work each year. Everyone wants to support the troops, but this law has some quirks that may surprise New York state employers and land them in court if they’re not careful.

The details. To qualify for leave, employees must be a spouse of “a member of the armed forces of the United States, national guard or reserves who has been deployed during a period of military conflict to combat theater or combat zone of operations.”

The law defines a military conflict as “a period of war declared by the United States Congress, or in which a member of a reserve component of the armed services is ordered to active duty” as defined by federal law.

Organizations with 20 or more employees must comply. And only employees who work an average of 20 hours per week are eligible to take the leave.

The biggest sticking point for most employers: the lack of a notice requirement. Eligible employees aren’t required to provide employers with any notice at all of their leave. You can ask for advance notice, but employers who require it are in violation of the law.

How to verify leave. Employers can require documentation of the need for leave. For instance, only spouses are entitled to it, not domestic partners, so you can require a marriage certificate. You can also request a copy of leave orders to confirm that the employee’s spouse was deployed in a combat theater and will be on leave during the leave dates.

Coping with the new law. Employers should encourage employees to provide as much notice as possible. Be flexible with your deadlines for documentation. Provide those employees who request military-spouse leave with a checklist of the documentation needed.

The new law is silent on whether employers can substitute accumulated paid leave for the unpaid leave. Lacking specific approval to do so, employers would be on thin ice if they required employees to use paid leave. However, employers may allow employees to choose to use accumulated paid leave if they desire.

Beware anti-retaliation provision in the law. That means you can’t treat employees who take military spouse leave (or any other leave, for that matter) differently than other employees. If you offer bonuses based on attendance or production, follow the same procedures as those for employees taking FMLA leave. The only exceptions should be where the laws require employers to act differently.

Finally, train supervisors and managers on the details of the new law. They should understand company procedure when presented with a leave request, so they don’t inadvertently create liability.  

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