Are you an employee with a family member in the military service? If so, you may be entitled to time off under the National Defense Authorization Act of 2010, which expands exigency leave and family caregiver leave under the federal Family and Medical Leave Act (FMLA).
The FMLA was amended in 2008 to allow employees to take time off to handle qualifying exigencies -- important practical matters -- arising out of a family member's military service or to care for a family member seriously injured in the line of military duty.
However, theses provisions were limited. Qualifying exigency leave only allowed family members of National Guard or military reservists to take leave from employment when the service member was called to active duty. The provision was designed to allow families the time to engage in post-deployment activities such as arranging for childcare and making financial adjustments. The new amendment extends this benefit to the families of any member of the Armed Forces who is on or called to active duty in a foreign country.
Family caregiver leave is similarly expanded under the Act. Previously, the FMLA provided eligible employees 26 weeks of leave to care for a family member injured while on current active duty. The new amendment extends to veterans injured in the line of duty within the past five years. The injury or illness may constitute an exacerbation of a pre-existing condition and may also manifest itself before or after the member became a veteran.
In addition to benefits under the federal FMLA, employees with families in the military are also entitled to benefits under the California Military Spouse Leave Law. Section 395.10 of the California Military and Veterans Code permits the spouse of a deployed service member to take up to ten days of unpaid leave while the service member is home on leave. This law applies to all California employers with 25 or more employees, which means it includes some employers that are too small to be subject to the FMLA. And, all benefits claimed under Section 395.10 are in addition to and not affected by employee benefits provided for in other laws, including the FMLA.
In order to claim benefits under California Family Leave state law, you must first notify your employer of your intended leave within 2 business days after you receive official notice of your military spouse’s leave. You must also provide written certification that your spouse is on leave during your requested time off.
At present, both the new FMLA amendments and California's Military Spouse Leave Law are in full force and effect. Nevertheless, you should not assume that your employer will automatically comply with their provisions. It is always best to be proactive.
- Determine whether you are eligible for military family leave under federal and/or state law. Federal entitlement information is available on the FMLA page of the Department of Labor (DOL) website. The California legislature has the text of the Military Spouse Leave Law.
- Complete the required federal and state notice and certification forms. Also be sure to comply with your employer’s specific leave procedures.
- If your employer is subject to the FMLA, it must provide information on the law -- including the provisions for military family members -- to employees. Most employers do so in their employee handbooks. Ask to see your employer’s revised leave policy and look for the provisions discussed above.
- If you have questions regarding your entitlement to family military leave or your employer’s compliance with the law, contact an experienced California employment attorney.