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New military spouse leave law raises many questions

by on
in FMLA Guidelines,Human Resources

When Gov. Arnold Schwarzenegger signed California Assembly Bill 392 into law on Oct. 9, he and the legislature gave California employers only the sketchiest outline of how the new military spouse leave law will work.

A few things are clear about the law, which amends the California Military and Veterans Code. First, only employers with 25 or more employees in the United States are covered. Any California employee of one of those employers and who works “an average of 20 or more hours per week” is entitled to up to 10 days of unpaid leave if his or her spouse is on leave from deployment during a declared war or a period of military conflict, such as in Iraq and Afghanistan.

Unclear requirements

The law doesn’t say how to determine whether a worker has worked an average of 20 or more hours per week. The law contains no time-in-service requirement.

Other requirements are fuzzy as well. An employee asking for leave must do so within two business days of “receiving official notice” that his or her spouse will be on leave. The law does not define “official notice” nor does it explain how employers can know when employees receive it. Employers may request written documentation verifying the leave. Again, no definition of “written documentation” emerged from the legislature. Similarly, it is not clear if employers can challenge documentation they suspect is false.

Potentially, employers could be surprised with last-minute leave requests because the law does not require employees to provide a specific amount of notice. The law does not mention any provision for employers to deny or delay leave, but the final bill does say that covered employers “shall allow a qualified employee to take … leave.” Not a lot of wiggle room there.

Qualified employees must be married to “qualified members” of the military. Qualified members can be members of the U.S. armed forces deployed to a combat theater or combat zone or members of the National Guard or Reserve deployed on active duty during a period of military conflict. The employee’s military leave is restricted to the period of time the qualified member is actually on leave.

Employers may not count military spouse leave against any other type of leave to which the employee is entitled. So unlike the federal FMLA, employers may not substitute paid leave. Taking the leave may not affect the employee’s rights to any other employment benefit under any other law.

Advice: Since this is clearly uncharted territory, employers should discuss leave arrangements with employees when situations arise. Try to allow as much leave as possible while keeping workplace disruption to a minimum. On the plus side, since the leave is unpaid, most employees will want to get back to work as soon as they can. Supervisors must be understanding—yet firm—about the employee’s needs. Open communication lines are the best policy.

Final note: The real trick for employers will be to incorporate this leave with the more than 15 types of leave mandated under California law, the employers’ existing leave policies, and the federal FMLA and the Uniformed Services Employment and Reemployment Rights Act.

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