4/11/2008

Our firm has many employees whose spouses are in the military, so we're gearing up to handle leave requests in compliance with the state's recent law. While trying to set up our policies, we've come across some questions that don't seem to be answered in the materials we have received. Do we have to let the employees take leave on the days they request, or can we ask them to take days that are more convenient for us? What sort of documentation can we require from an employee to verify that his or her spouse is actually coming home on leave? Does the law apply to domestic partners? —Jackie M., Office Manager in Riverside

Jackie surely isn't the only HR professional with questions about the new military spouse leave law. The measure, A.B. 392, which added Section 395.10 to the Military and Veterans Code, is ambiguous. We will need to wait for regulatory guidance to get definitive answers to several questions employers face.

On Oct. 9, 2007, Gov. Schwarzenegger signed A.B. 392 into law. Designated "emergency legislation," it took immediate effect. The law requires public and private employers with 25 or more employees in the United States to allow eligible employees to take up to 10 days of unpaid leave while the employee's military spouse is on leave from deployment. An eligible employee is one who works an average of 20 or more hours per week (excluding independent contractors) and is the spouse of a member of the armed forces deployed during a period of military conflict to an area designated as a combat theater or zone. If the employee provides notice within two business days of receiving official notice that the spouse will be on leave, submits written documentation certifying that the spouse will be on leave from deployment, and requests time off from work, the employer must permit the employee to take up to 10 days of unpaid leave.

Assuming the eligible employee satisfies the notice and certification obligations, the law does not allow employers to deny or restrict the employee's time off. This means, for instance, that the employer cannot require the employee to take days off that are more convenient for the employer. Accordingly, unless future regulatory guidance says otherwise, employers should allow employees to take the requested time off as long as the request satisfies the law's requirements.

The law is also ambiguous as to what "official notice" triggers the employee's notice obligation and how the employee must meet it. We recommend that the employer request and accept documentation (such as official transit papers for international travel) that reasonably supports the conclusion that the military service member is authorized to travel home to the United States for leave. Because employees may make leave requests on short notice, and the military spouse may be in transit, you may grant leave requests conditioned on the employee providing sufficient documentation at a later date.

Although the law does not mention domestic partners, the California Domestic Rights and Responsibilities Act of 2003 extended to domestic partners all the rights, protections, and benefits afforded to spouses under California law. Accordingly, an employee who has a domestic partner in the military has the same right to take time off that an employee with a wife or husband in the military has.

In closing, employers should stay tuned for further regulatory guidance. In the meantime, they should comply with the law in a consistent and nondiscriminatory manner and without retaliating against employees for taking time off.

Allen M. Kato, Esq., is an associate at the San Francisco office of the law firm Fenwick & West LLP.

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More New Leave Rules for Military Families—Are You Prepared?

California's military spouse law isn't the only recent legislation that will affect your leave practices. President Bush has signed a measure that amends the Family and Medical Leave Act (FMLA) for the first time in the law's 15-year history. The new law allows an employee with an immediate family member (spouse, son, daughter, or parent) who is on active duty or called to active duty in the reserves or National Guard to take up to 12 weeks of unpaid leave during any 12-month period for any "qualifying exigency." And, an employee who is the spouse, child, parent, or next of kin of an Armed Forces member who becomes seriously injured or ill in the line of duty can take up to 26 weeks of unpaid leave during a 12-month period to care for the service member.

California employers are scrambling to update their policies and stay in line with the new changes. Do you need help making heads or tails of the leave requirements? Our informative audio conference, "Changes to Federal FMLA Military Leave Rules: What You Need to Know Now," will arm you with effective strategies for handling military-related leave requests and avoiding mistakes. On May 21, two California employment attorneys will guide you through the dos and don'ts of complying with the FMLA rules, and they will cover topics such as which service members are covered by the law, how to determine whether a service member's injury or illness is serious enough to trigger an employee's leave rights, and how the new rules affect your other leave obligations.

To learn more about this audio conference and to register, click here.