In California, temporary military leave gives certain rights to employees of public agencies who take time away from work to serve in the reserves, the National Guard, or the Naval Militia. While this leave may be less common than sick leave, vacation, or maternity and paternity leave, it’s important to know how to handle requests from employees who serve.
What is ‘temporary military leave’?
First, some basics to know about temporary military leave. “Temporary military leave”, which is the kind of military leave discussed in this post, is a military leave for a period of up to 180 days and which covers employees of public agencies who are ordered to duty in “active military training, inactive duty training, encampment, naval cruises, special exercises or like activity.” (California Military and Veterans’ Code § 395).
The “temporary military leave” covered by section 395 of the California Military and Veterans Code is most commonly used for employees who are in the reserves and need to take time off to fulfill their annual training or duty requirements. Importantly, this leave is protected regardless of whether the employee serves voluntarily or involuntarily; even if an employee chooses to enlist in the reserves when they are already an employee of the agency, they are still entitled to this protected leave.
Federal law (the Uniformed Services Employment and Reemployment Rights Act (“USERRA”)) and state law (the California Military and Veterans Code) provide other and additional re-employment rights for employees on longer deployments or during armed conflict. Employers must follow both the USERRA and the California Military and Veterans Code, but with respect to temporary military leave, California law is more specific than the USERRA. This means that employers who follow the requirements of California law with respect to temporary military leave will be in compliance with the USERRA as well.
How does temporary military leave affect compensation and benefits?
One of the most common questions regarding temporary military leave is: What kind of compensation and benefits should we give employees who take this leave?
With respect to compensation, California law provides for thirty (30) days’ of compensation per fiscal year for employees who take this leave. This is the compensation that an employee could typically expect to earn within a 30-day period (not 30 full days’ worth of compensation). So, for example, a full-time employee typically works 21.5 days within a month, or 172 hours. That full-time employee would be entitled to 172 hours of compensation each fiscal year.
To be entitled to this compensation, however, an employee needs to have been in service with the public agency for one year. An employee who looks to take temporary military leave before their first anniversary is still protected while taking this leave, but they would not be entitled to compensation during their absence. It’s important to note that the statute specifically says that time in the service counts toward the one-year requirement. This means that, if an employee takes a month of leave to serve during their first year of employment, their year of service will not be interrupted, and they will be entitled to compensation if they take leave after their first anniversary.
As far as healthcare benefits are concerned, employees who take fewer than 31 days of temporary military leave within the fiscal year cannot be required to pay more than their share of their healthcare premiums. Employees who take fewer than 31 days of temporary leave, even though they are not actively working during that period, cannot be required to cover the employer’s share (if any) of their healthcare premiums.
If the employee takes more than 31 days of leave, the agency must allow the employee to elect to continue coverage for up to twenty-four (24) months. During this time, the employee cannot be required to pay more than 102 percent of their full premium.
Calculating vacation, sick, and holiday leave for employees on temporary military leave is simple: They continue to accrue at the same rate for up to 180 days, as long as they have been employed for a year. Public employers cannot require that employees use their vacation, sick, or holiday time while on temporary military leave, but employees can elect that option to receive compensation while on leave.
Taking temporary military leave also does not create a break in service for retirement calculations. An employee who is on temporary military leave is entitled to continue accruing benefits, to the extent they make payments to their plan while out on leave.
Can employers ask for documentation of temporary military leave?
A public agency cannot condition an employee’s right to take leave on them producing paperwork supporting the need for leave. In simpler terms, the employee does not need to show any documentation to take their protected leave, as long as they aren’t seeking compensation or won’t be absent for more than thirty days. However, if an employee wants to receive compensation or seeks to return to work after more than thirty days, the employer can request that the employee provide documentation supporting the need for leave.
It’s also important to note that, if the employer has concerns about the timing, frequency, or duration of an employee’s request for temporary military leave, the employer can reach out to the employee’s commander or supervisor to discuss those issues. This does not mean that the employer is required to reach out to the commander or supervisor every time an employee requests military leave; but if an agency does have concerns about an employee’s request for leave, it can take the initiative to confirm details with the employee’s service branch.
What else do you need to know?
It’s important to handle requests for temporary military leave with care and common sense. Here are some things to think about if you get a request for temporary military leave from an employee: