Governor Arnold Schwarzenegger signed legislation effective October 9, 2007, creating a new Military Spousal Leave Law in California. The new legislation, which has been added to California's Military and Veterans Code as Section 395.10, applies only to employers with 25 or more employees.
Employees are eligible for leave under this legislation if they work an average of 20 hours or more a week and have a spouse who is a member of the United States Armed Forces, National Guard, or Army Reserves on active duty in an area of military conflict. No time period is specified in the legislation for determining whether the employee meets the required "average of 20 hours per week."
The law specifically requires a covered employer to allow an eligible employee to take an unpaid leave of absence for up to 10 days, during a period when his or her spouse is on leave from deployment during a "period of military conflict." To be entitled to such leave, however, the employee must provide to his/her employer: (1) verbal or written notice no later than two business days after "receiving official notice" that his or her spouse will be on leave from deployment, that the employee intends to take time off from work during the spouse's leave from deployment; and (2) written documentation certifying that the employee's spouse will be on leave from deployment during the period the employee has requested time off from work. The statute does not specify what constitutes "receiving official notice" or what "written documentation" will suffice.
The leave is only permissible during a period of military conflict which is defined in the statute to include 1) periods of war declared by the U.S. Congress; or 2) periods of deployment of the National Guard or Reserves due to war, emergency, or when otherwise authorized by law.
The legislation also does not specify any circumstances that would allow an employer to deny the employee’s specific request and, instead, require the employee to take the requested time off during different dates, more convenient for the employer, during which the spouse will be on leave from deployment. Given the absence of clarification on these issues, employers should be flexible and make every reasonable effort to accommodate eligible employees to be with their spouses on leave from active duty deployment.
Employers are prohibited from retaliating against employees who assert rights to military spousal leave. In addition, taking a military spousal leave does not affect or prevent an employee from taking any other leave of absence which the employee may be entitled to take under any other applicable law.
According to the statute, it becomes effective immediately 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 member of the military's leave from deployment.
This Employment Law Bulletin has been prepared by the Employment Group of Gordon & Rees LLP.
Contacts:
San Francisco - Michael Bruno
Los Angeles - Stephen Ronk
San Diego - Mark Saxon
Portland - Christopher Hawk
Dallas - Brenk Johnson
Houston - Terrence Robinson
New York - Mercedes Colwin
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