Question:

I have a fairly large company in Salinas, and I am revising the leave policies in our employee handbook. I am confused about the array of military related leave laws. I fully support our troops and want to provide time off as required by law, but I am having a hard time keeping track of the various military related leaves.

Answer:

It is prudent to review your handbook every few years to update it with new laws, and this year is no exception. Leave laws are complicated, and the expansion of military related leaves in the last few years present some challenges for employers. The military leave laws to be aware of include:

California’s_New_Military_Leave_Law. Effective January 1, 2010 a new leave law will go into effect in California. The law is AB 485, which creates the “Civil Air Patrol: California Wing: Employment Leave.”  Under this new law, employers are required to provide at least 10 days of unpaid leave per year to employees who are volunteer members of the California Wing of the Civil Air Patrol (the civilian auxiliary of the U.S. Air Force). Employees are eligible if they have been employed 90 days or more at the time they are called to respond to “an emergency operational mission”.  This new law applies to employers employing more than 15 employees. Eligible employees may take this leave in addition to any other leave benefits available to the employee.

Upon expiration of the Civil Air Patrol leave, employers are required to restore the employee to the position he or she held when the leave began or to an equivalent position.

California_Leave_for_Spouse_or_Registered_Domestic_Partner_of Qualified_Servicemember: This leave permits eligible employees to take up to 10 days unpaid leave during the time the employee’s spouse or registered domestic partner is on leave from deployment during a period of military conflict. In order to be eligible, the employee must be the spouse or registered domestic partner of a member of the Armed Forces of the United States who has been deployed during a period of military conflict to an area designated as a combat theater or combat zone by the President of the United States; or a member of the National Guard or Reserves who has been deployed during a period of military conflict. Employees who work an average of 20 or more hours per week are eligible for this leave.

Federal_Family_Medical_Leave_Act_(FMLA). The FMLA applies to employers with 50 or more employees. In order to qualify for FMLA leave, the employee must have worked for the employer at least one full year (52 weeks).  The employee must also have worked at least 1,250 hours during the 12-month period immediately before the leave would begin.

The FMLA provides two separate types of military leaves.

  • Military_Caregiver_Leave – Eligible employees may take up to 26 weeks unpaid leave in a single 12-month period to care for a covered service member. A covered service member is the employee’s spouse, child, parent, or next of kin (nearest blood relative) who is a member of the U.S. Armed Forces (including the National Guard or Reserve), who is undergoing medical treatment for a serious injury or illness that occurred any time during the five years preceding the date of treatment, or who is temporarily disabled due to a serious injury or illness incurred in the line of active duty.  This leave is measured from the first day an employee takes leave.  Employee health insurance and other benefits must continue for the entire leave period, up to 26 weeks.
  • Qualifying_Exigency Leave – An employee may take up to 12 weeks unpaid leave for one of eight defined nonmedical “qualifying exigencies” arising out of the fact that the employee’s parent, child (including an adult child), or spouse is on active duty or is called to active duty in the U.S. Armed Forces, National Guard or Reserves.

Federal_&_State_Military_Leave. Employees who serve in U. S. military organizations or state militia groups may take unpaid leave to fulfill their service obligations. Upon completion of their service, eligible employees are entitled to reinstatement to their position, or to an equivalent position.

When an employee requests leave, it is important to determine if the employee is eligible for leave, and then determine how many leave days the employee is qualified to take.
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