FMLA Regulations Create New Military-Related Leave

Spring 2009Newsletters California Update - Second Quarter 2009

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Employers in California often pay little attention to the federal Family Medical Leave Act (FMLA) on the assumption that compliance with the California Family Rights Act (CFRA) will satisfy their obligations under federal law. While the CFRA is often more generous to employees than the FMLA, recent updates to the federal law have given employees additional federal rights not covered by California law. One of the most significant updates involves leave available to family members of those in the military. Employers should familiarize themselves with these new rules, especially in light of our continued involvement overseas and possible redeployments into Afghanistan.

Employees eligible under the FMLA can now take 12 weeks of leave for “any qualifying exigency” that results from a spouse, son, daughter or parent being on active military duty, or being notified of an impending call to active duty status. This provision is limited to family members of those who are in the Guard or Reserve or are retired from the armed services. A “qualifying exigency” includes a wide range of activities such as attending a military ceremony, participating in a parent-teacher conference in place of a service member, spending time with a service member on leave, addressing financial or legal matters of a service member on duty, and counseling for issues that arise from a family member’s service. The definition’s expanse is reinforced by a “catch all” provision for other related activities not enumerated in the statute. Leave for a qualifying exigency will not exhaust CFRA leave, although it may run concurrent with time off under California’s Military Spouse Leave law, which provides up to 10 days off while a military spouse is on leave.

In addition, 26 weeks of leave must be granted to a parent, spouse, child, or the next of kin of an injured or ill service member to provide for their care. CFRA leave may run concurrently with this time off, if the eligibility requirements are met. Of course, even after such CFRA leave is completely exhausted, the employee will still have another 14 weeks of leave under this section of the FMLA.

Employers are encouraged to make sure that all handbooks and leave policies are updated to comply with the new laws.