How Does the Military Family Leave Act Impact Your Business?
California’s Family Military Leave Act was created to make it possible for families of active duty military members to take needed time off to be with the military member when needed. As a business owner, you need to be aware of the details of this act in order to remain in compliance with the new law. The basic impact on your business is the need to keep the individual’s position open for their return and the need to participate in insurance. The details you need to keep in mind follow.
The Two Types of Military Family Leave
The federal Family and Medical Leave Act (FMLA) and the California Family Rights Act (CFRA) provide eligible employees the opportunity to take unpaid, job-protected leave for certain service-related medical and non-medical needs of family members. There are two forms of such leave. The maximum amount of leave available under this policy is 26 weeks in a 12-month period.
Qualifying Exigency Leave
The qualifying exigency leave is available for employees who qualify under the requirements of FMLA. Eligible employees may take unpaid qualifying exigency leave to tend to certain “exigencies” arising out of the duty under a call or order to active duty of a covered military member. It is available in the event of short-notice deployment (within 7 days or less of a call or order to active duty), military events and related activities, child care and school activities, financial and legal arrangements, counseling, temporary rest and recuperation, post-deployment activities and mutually agreed to leave.
Military Caregiver Leave
In order to be eligible for military caregiver leave, an employee must be a spouse, domestic partner, son, daughter, parent or next of kin of the covered servicemember. This leave is designed to allow eligible employees to care for certain family members who have sustained serious injuries or illnesses in the line of duty while on active duty. The family member must be a covered servicemember and the leave is not available to care for service members on the permanent disability retired list.
Difference Between Federal and California State Rules
Both federal and California law protect the employee’s job when he/she takes a military leave of absence. The Uniformed Services Employment and Reemployment Rights Act (USERRA) of 1994 is the federal law, while the Family Military Leave Act is the California state law. USERRA is applicable to all employers no matter how many people are employed and regardless of how many hours they have worked for their employer. The state law was enacted to provide unpaid leave for eligible employees who are married to deployed military servicemen or servicewomen and allows employees to take a family military leave of absence when their spouse is on leave from their deployment. The state law has specific qualifications and not all employees will qualify.
Important Times When Families Need This Leave
Having a loved one in the military is stressful even at the best of times. When there is active conflict involved, this stress can be overwhelming. Not only are spouses in the position to provide for those family members at home but they are also dealing with the stress of being separated for long periods of time. On the rare days when their loved one is given time to come home, it is important for family members to be able to reconnect with the one who has been gone.
Should the one on active duty become injured, it falls upon the family members to provide for their families, care for their injured loved one and deal with the stress of caring for someone who is possibly facing a very different life than they previously lived. Having to worry about whether or not they have health insurance or a job waiting can be devastating. It becomes impossible to do what is necessary when the thought of no income is staring you in the face.
Does the Act Apply to Your Business?
The Act lists a “qualified employer” as any individual, corporation, company, firm, state, city, county, municipal corporation, district, public authority, or any other governmental subdivision that employs 25 or more employees. Employees include both part-time and full-time workers when considering if your company is affected.
How Are Employees Eligible?
In order to qualify for military family leave, an employee must meet several requirements.
Spouse of a ‘Qualified Member’
The Spouse of a ‘qualified member’ of the United States Armed Forces who has been deployed to a conflict zone. The military deployment must be declared a combat zone by the President of the United States to consider the military member “qualified”.
Does a Spouse Need to Be Legally Married or is a Domestic Partner Relationship Enough to Qualify?
There is nothing written into California’s Military Family Leave Act that specifically addresses domestic partners. In 2005, however, California enacted The California Domestic Partner Act. In that act, domestic partners of military members were given many of the same rights as spouses of military members. For this reason, it is possible that this family leave act may also include domestic partners. This is something that will have to be a wait and see matter until the issue arises.
Minimum Work Period Per Week
The employee must work an average of twenty hours a week to be eligible for the time off.
Spouses of Members of the National Guard and Reserve Are Also Eligible
National Guard and Reserves member’s spouses may also be eligible if their spouse was deployed during a time of military conflict.
Notice of Intention to Take the Leave
Written notice is required of the intention to take leave and it must be given within two days of the notification that the military member will be on leave. The employer must also be given written proof of the military member’s leave status.
Does this Leave Use Up or Affect Other Accrued Leave?
This leave is considered separate from any other leave such as vacation, sick time or personal days. The employee may choose to use this time, but it is against the law for an employer to require this. The law provides for up to ten days of unpaid leave. If an employee can afford the time off without pay, it makes more sense to keep this time separate. However, if money is a concern, using the paid time accrued may help ease financial stress. In either case, it is the employee’s choice, not that of the employer.
Eligibility for Long-term Leave
The law has also made provisions for spouses, children, and parents or next-of-kin to be eligible for up to 26 weeks if they are needed to care for a military member who has been wounded either physically or mentally during deployment in a conflict zone. Documentation of the need must be made and the employee must return to work as soon as the need has been eliminated.
California is one of only a handful of states that offers leave for military spouses. As an employer, the new changes may be slightly confusing at first but the act was created to make things as simple as possible. This is another way you can show your support to the well being of your employees. Having a spouse in active conflict is extremely stressful on those stateside and being able to offer leave on the rare leave helps alleviate that stress. This, in turn, benefits you, as it allows for an employee that is better able to concentrate on the work at hand.
This blog post is intended for informational purposes only and does not constitute legal advice. No attorney-client relationship is created between the author and reader of this blog post, and its content should not be relied upon as legal advice. Readers are urged to consult legal counsel when seeking legal advice.