Military Spouse Leave

Recently, Governor Schwarzenegger signed Assembly Bill 392 into law, effective immediately, creating a new leave of absence right for spouses of military personnel while the military spouse is on leave from active duty. The law allows for 10 days of unpaid time off.

Which employees are eligible?

To be eligible, the employee must have a spouse who is on active duty for any of the Armed Forces, National Guard or Army Reserves, in an area of military conflict. Leave will only be provided during: 1) periods of declared war, or 2) periods of deployment of the National Guard or Reserves.

Only employees who work an average of 20 or more hours per week are eligible.

Which employers are affected?

This new law applies to private and public employers with 25 or more employees.

What does an employee have to do?

In order to take the leave, the employee must give notice to the employer no later than two business days after receiving an “official notice” that the military spouse will be on deployment leave. The employee must also notify the employer of an intent to take the time off work during the spouse’s deployment. In addition, the employee must provide written documentation certifying that the spouse will be on leave from deployment during that time.

Employers should proceed carefully

The law creates some potential hazards for employers. First, the law does not address whether employers have flexibility in demanding that the ten-day leave be taken in such a way that will best facilitate the business’ needs. Therefore, employers should be as flexible as possible when employees request this leave. Second, taking such leave does not affect the employee’s right to any other leave or benefit. Third, it does not appear that there are circumstances under which an employer would be allowed to deny an employee’s request for leave - all the more reason for employers to be flexible and careful. Finally, this law prohibits any sort of retaliation against an employee who requests or takes such leave.