Gov. Arnold Schwarzenegger recently signed California’s new law allowing military spouses to take leave. The law requires some employers to provide up to 10 days of unpaid leave to the spouse of a qualified member of the U.S. armed forces, National Guard or reserves.
Here are employer guidelines on exactly how to administer this new entitlement.
The law, AB 392, amends Section 395.10 of the Military and Veterans Code, which provides certain benefits for qualifying members of the armed forces, National Guard and reserves.
Employers subject to the new law include “any individual, corporation, company, firm, state, city, county, city and county, municipal corporation, district, public authority, or any other governmental subdivision that employs 25 or more employees.”
The statute doesn’t say whether to count part-time and temporary employees or those who work outside California. Therefore, the best approach is to count all employees as of the date of the leave request to determine whether the new law applies to you. The statute does, however, specifically refer to “employees.” As a result, you don’t need to count independent contractors in the tally.
The new law allows employees to take up to 10 days of unpaid leave only when a spouse is on leave from deployment.
For example, an employee may be eligible to take leave when her military spouse is on leave from Iraq. The law does not, however, provide a cap on the amount of leave that may be taken in any given year. Thus, if an employee’s military spouse is granted more than one leave from active duty during a year, the employee probably will be entitled to 10 days of leave on each occasion.
The new law does not “affect a qualified employee’s rights with respect to any otherprovided in other laws.” One reading of this provision is that employers can’t force employees to use accrued vacation or paid time off while on military spousal leave. In effect, the is in addition to any other time off the employee may be entitled to.
Under the new statute, employees must provide employers with notice of their intent to take leave. Notice must be provided within two business days of receiving official notice that the employee’s military spouse will be on leave from deployment.
The statute does not require the notice to be in writing. The employee must submit written documentation, however, certifying that his or her military spouse will be on leave from deployment during the time the leave is requested.
As an urgency statute, AB 392 took effect immediately when the governor signed it. In his message following the approval of the statute and other measures benefiting military personnel, Schwarzenegger said, “These bills demonstrate California’s commitment to those who currently serve, those who have served and the families who have sacrificed so much to support them.”
The statute also includes language mirroring the governor’s statement: “In order to serve the families of those troops currently serving in military conflicts in Iraq and Afghanistan, and to assure that these families are able to spend time together during the qualified member’s leave from deployment, it is necessary that this act take effect immediately.”
Final note: Revise your employee handbook, policies and procedures to incorporate the new law. Make sure your changes reflect the anti-retaliation provision of the statute, which provides: “A qualified employer shall not retaliate against a qualified employee for requesting or taking leave.”
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