Employee Leave Expanded For California Military Families

Are you an employee with a family member in the military service? If so, you may be receiving an early Christmas present this year. On October 28, 2009, President Obama signed into law HR 2647, the National Defense Authorization Act of 2010, which expands exigency leave and service member caregiver leave under the Family and Medical Leave Act (FMLA).

When originally enacted in 2008, qualifying exigency leave only allowed family members of National Guard or military reservists to take leave from employment when the service member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.

Service member 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 FMLA, employees of service members 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 10 days unpaid leave while the service member is home on leave. This law applies to all California employers with 25 or more employees; thus, including some employers not subject to the FMLA. You should note that all benefits claimed under Section 395.10 are in addition to and not affected by employee benefits provided for in other laws.

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 of receipt of official notice of your military spouse’s leave. Secondly, you must provide written certification that your spouse is on leave during your requested time off.

At present, both the new FMLA amendments and California AB 392 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.

Strategy

1. Determine if you are eligible for military family leave under federal and/or state law. Federal entitlement information is available on the Department of Labor (DOL) website at www.dol.gov/whd/regs/compliance/whdfs28a.pdf. California AB 392 may be viewed at http://leginfo.ca.gov/pub/07-08/bill/asm/ab_0351-0400/ab_392_bill_20071009_chaptered.html.
2. Complete the required federal and state notice and certification forms. The 2010 FMLA forms will be available on the DOL website. Also be sure to comply with your employer’s specific leave procedures.
3. Once the Department of Labor issues revised regulations and notices relating to the new FMLA amendments, the changes must be included in all employee handbooks. Ask to see your employer’s revised leave policy and look for the provisions discussed above.
4. If you have questions regarding your entitlement to family military leave or your employer’s compliance with the law, contact an experienced California labor law attorney.