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Simply Legal

And Now, Conjugal Visits

Columnist

Brandon R. Blevans
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Columnist: Brandon R. Blevans
December, 2007 Issue


There are lots of reasons employees can take time off from work and still keep their jobs. The number of different types of “protected leaves” provided by California law is, simply put, astounding. And, if I were a gambling person, I’d venture to bet that the vast majority of employers are near completely ignorant of most leave rights afforded employees.

Now, I’m not talking about the big ones: pregnancy disability leave (up to four months), family and medical leave (up to 12 weeks), and time off due to a workers’ compensation injury (forever and ever it seems!). Most employers are at least somewhat aware1 of their obligations under these leave provisions.

What I’m referring to are the “lesser known” leave rights of employees. These include things like leave for witness and jury duty, leave for victims of domestic violence, and leave for emergency services personnel (such as volunteer firefighters). These lesser known leave laws also include accommodation for alcohol rehabilitation, leave to attend school activities, time off to vote, time off for victims of certain “serious” crimes, as well as time off if your child runs into disciplinary issues at school. Employees can even request time off as a reasonable accommodation to deal with literacy problems.2 Thus, a civically minded, really sick, quasi-literate, pregnant volunteer firefighter with disrespectful school-age children, an alcohol problem and a propensity for getting mugged can take some serious time off.3

The new kid in town
As if employees didn’t have enough reasons not to work, the California legislature has added yet another leave right to the ever-expanding pool of days off.4 The new leave law became effective immediately upon signing by the Governor (Oct. 9, 2007) and applies to all employers with 25 or more employees. (Which means my October column, “Size Doesn’t Matter (Much),” had an error that was the result of the Governor, not the writer!). All such employers are required to let employees who are spouses of certain military personnel take up to 10 days off upon the military member’s leave from deployment in a combat zone. In English: If your spouse comes back from war, you can take 10 days off to, well, um, have a second honeymoon. The law works like this:
Covered employers: The law applies to any employer with 25 or more employees. For purposes of calculating the 25-employee threshold, you need only count employees who work an average of 20 or more hours per week. Independent contractors, irrespective of the number of hours they work, aren’t included.

Eligible employees: To be eligible, an employee must be the “spouse” of either an active duty member of the military who was deployed in a “combat zone” during a time of war, or a member of a reserve component that was ordered to active duty. The employee’s spouse must then be on leave from the deployment or period of active duty. Remember, under California law, the term “spouse” includes a registered domestic partner. It’s unlikely, however, that many employers will receive requests from same-sex registered domestic partners, as the military may use such registration as a grounds for discharge under its “don’t ask, don’t tell” policy.5

In addition to these requirements, the employee must also provide reasonable advance notice of the need (or desire) for the leave. The employee must also submit documentation verifying his or her spouse is on leave from deployment during the period of time that the employee requests off.

Combat “Theater” or “Zone”: Not all active duty personnel trigger their spouses’ rights to this new leave. Only those active duty personnel who are on leave from deployment to a combat zone or theater as designated by the President. They presently include Afghanistan, the Federal Republic of Yugoslavia (Serbia/Montenegro), Albania, the Adriatic Sea, the Ionian Sea (but only north of the 39th parallel), the Persian Gulf, the Red Sea, the Gulf of Oman, the Arabian Sea (but only if you’re north of 10 degrees north latitude and west of 68 degrees east longitude), the Gulf of Aden, Iraq, Kuwait, Saudi Arabia, Oman, Bahrain, Qatar and the United Arab Emirates. And people wonder why the military claims to be stretched too thin!

Employees who satisfy these requirements can take up to 10 days off during any period of leave from deployment or leave from active duty (in the case of a reservist). While the leave is unpaid, nothing in the statute expressly prohibits an employee from electing to use vacation time for this purpose. The issue of whether an employer can require the employee to use vacation time for this leave is unclear, as the statute prohibits “retaliation” against an employee who requests or takes leave under this law.

Whether the leave is paid or not, one thing is relatively certain: Returning service personnel with California spouses have an opportunity for a bit more quality time at home than those with spouses in most other states.6

  1. “Awareness,” however, doesn’t in any way assure an ability (or desire) to comply.
  2. Which always raises the question of how the employee read your handbook to find out about the right to take time off for the literacy problem. But I digress.
  3. Admittedly, this 12-headed hydra of a leave law scenario seemingly never raises its ugly heads.
  4. It tried to add two, the other being a required period of time off for bereavement. That bill was vetoed.
  5. Service members Legal Defense Network, The Survival Guide: A Comprehensive Guide to “Don’t Ask, Don’t Tell” and Related Military Policies (5th Ed. 2007)
  6. A few other states have similar laws on their books. These include Illinois, Indiana, Maine, Minnesota, Nebraska and New York.


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