Question:

One of my part-time employees is the wife of a Marine who has been stationed in Iraq. She has used all of her vacation time but has asked for additional time off because her husband is going to be home on leave next month. I only have ten employees and really cannot afford to give her the time off. Do I have any obligation to give her the leave that she has requested?

Answer:

A new law just went into effect that requires “qualified employers” to allow “qualified employees” who are spouses of “qualified members” of the Armed Forces, National Guard, or Reserves to take up to ten days of unpaid leave while their spouses are home on leave. Governor Schwarzenegger signed this bill into law on October 9, 2007. Normally, the law would not take effect until January 1 of the following year; however, this was declared to be an urgency statute and took effect immediately “[i]n 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 qualified member’s leave from deployment.”

To be a “qualified employee,” the individual must perform service for hire for an employer for an average of twenty or more hours per week. Independent contractors are not included. Additionally, the individual must be one of the following: the spouse of a member of the U.S. Armed Forces who has been deployed during a period of military conflict to an area designated as a combat theater or a combat zone by the President of the United States; or the spouse of a member of the National Guard who has been deployed during a period of military conflict; or the spouse of a member of the Reserves who has been deployed during a period of military conflict. A “period of military conflict” means either a period of war declared by the U.S. Congress, or a period of deployment for which a member of a reserve component is ordered to active duty. The law makes no provisions for domestic partners.

To be subject to this law, an employer must employ 25 or more employees. The definition of “employer” includes an individual, corporation, company, firm, state, city, county, municipal corporation, district, public authority, or any other governmental subdivision.

An employee who wants to take this type of leave must provide the employer with notice within two business days of receiving official notice that the spouse will be on leave from deployment. The employee must also submit written documentation to the employer certifying that the spouse in the Armed Forces, National Guard, or Reserve, will be on leave from deployment during the same time that the employee is seeking to take leave. An employer may not retaliate against a qualified employee for requesting or taking this type of leave. Additionally, an employer cannot prevent a qualified employee who has taken this type of leave from taking other leave or using other benefits to which the employee is entitled. For example, if an employee who is qualified for this type of leave has accrued vacation, he or she would still be entitled to that vacation time in addition to the new military spouse leave.

In your question, you do not specify how many hours the employee in question works on average, how much notice she gave you, or if she has given you written documentation certifying that her husband will be on leave. However, since you have fewer than 25 employees, this law does not apply to you.

If you would like to see the full text of the bill, it is Assembly Bill 392, and you can find it at http://www.leginfo.ca.gov.
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