Military Leave Roadmap For California Employers

In light of current events in the Middle East and geopolitical tensions around the world, California employers may have questions about military-related leaves of absence for their employees. Federal, state and local laws provide protected leave to employees who serve, or who have family members who serve, in the military. Our roadmap below will help you navigate your way through these questions.

Scenario 1: Employee Needs Leave For Military Service  

The federal Uniformed Services Employment and Reemployment Rights Act (USERRA) and certain California laws apply to absences when the employee serves in the military, regardless of employer size. Larger employers may have additional obligations for employees working in San Francisco.

USERRA

USERRA is a federal law that provides job protection and benefits for service members returning to civilian employment after an absence from work due to “service in the uniformed services.”

USERRA protected leave highlights include:

• Applies to employees who miss work for voluntary or involuntary service in the US Army, Navy, Marines, Air Force or Coast Guard and Reserves, US Army Air National Guard and Air National Guard, Commissioned Corps of the Public Health Service, and to persons designated by the President in the time of war or emergency.
• Includes active duty and many other service-related absences, such as training.
• Provides leave for a cumulative total of five years.
• Pension benefits must continue, and federal COBRA is extended to 24 months.

Employees Returning From USERRA Leave:

• Must return to work or submit an application for re-employment within certain time frames (which range from as short as the next regularly scheduled work day to 90 days after release from service, depending on the length of the service).
  • Release from service must not be with a disqualifying discharge.
• Be returned to the job that they would have attained had they not been absent for military service. This is the “escalator” principle.
• Are protected from termination except for cause for 1 year (if period of service lasted longer than 180 days) or 180 days (if period of service was between 31 and 180 days).

You can find more information about USERRA here.

California Law

California law offers similar protections to members of the National Guard of any state called to active duty by the Governor of that state or the President of the United States.

• The employee must receive a certificate of satisfactory service from the National Guard and apply for reemployment within 40 days (for full-time employment) and 5 days ( for part-time employment).

Additionally, California employees who are members of the Reserve, National Guard, or Naval Militia are entitled to up to 17 calendar days of unpaid leave per year for military service activities such as training, drills, camp, cruises, or special exercises.

San Francisco

San Francisco’s Military Leave Pay Protection Act requires employers of 100 or more employees (worldwide) to provide supplemental compensation (the difference between military compensation and the employee’s regular pay) for up to 30 days in a calendar year to covered employees working in San Francisco.

• Employees must be members of the reserve corps of the US Armed Forces, National Guard, or other uniformed service organization of the US and take leave for certain military duties.

Scenario 2: Employee Needs Leave Due To A Family Member’s  Military Service

When an employee needs time off related to a family member’s military service, a variety of leave laws may apply, depending on employer size.

California Military Spouse Leave

California’s Military Spousal Leave law requires employers of 25 or more employees to provide employees up to 10 days of unpaid leave while their spouse or registered domestic partner is on leave from deployment during a period of military conflict (as defined).

• To be eligible, the employee must regularly work at least 20 hours per week, and the spouse must be a qualified member of the US Armed Forces, Reserves, or National Guard.

California Family Rights Act Leave (Employers of 5 or more employees)

Eligible employees can use their 12 weeks of California Family Rights Act (CFRA) leave when their spouse, registered domestic partner, child, or parent of an individual on active military duty (or has been notified of an impending call or order to active duty) in the Armed Forces in support of a contingency operation.

• Leave can be for a variety of “qualifying exigencies” such as childcare, or care for a parent of the military member, spending time with the military member, counseling, and post-deployment activities.

Family and Medical Leave (Employers of 50 or more employees)

Eligible employees can use their federal FMLA leave for the “qualifying exigency purposes” described above, where the employee’s family member is their spouse, parent, or child.

• In many cases, FMLA and CFRA will run at the same time.

FMLA eligible employees who are the spouse, son, daughter, parent, or next of kin of a covered service member who is ill or injured due to military service are entitled to a combined total of 26 workweeks of leave during a 12-month period to care for the service member.

Military leave can seem complicated, especially if it doesn’t arise frequently in your workplace.  If you have questions, give us a call, email us, or connect with us via Live Chat.