This law is separate from and does not change the obligations of employers covered by FMLA or CFRA to provide qualifying exigency leave and leave to care for an ill or injured servicemember. For more information, see FMLA and CFRA Qualifying Reasons.

• Military Spouse/Registered Domestic Partner Request for Leave - 25 or More Employees

Eligibility for Military Spouse Leave

To qualify for military spouse leave, an employee must meet the following requirements:

• Work for a qualified employer that employs 25 or more employees.
• Be the spouse or registered domestic partner of a qualified servicemember.
• Work an average of 20 or more hours per week.
• Provide you with notice of their intention to take the leave, within two business days of receiving official notice that the servicemember will be on leave from deployment.
• Submit written documentation certifying that the servicemember will be on leave from deployment during the time the leave is requested.

The servicemember must meet one of the following requirements for an employee to be eligible for this type of leave:

• Be a qualified member of the United States Armed Forces who was deployed during a period of military conflict to an area designated as a combat theater or combat zone by the president of the United States.
• Be a member of the National Guard who has been deployed during a period of military conflict.
• Be a member of the Reserves who has been deployed during a period of military conflict.2

Duration of Military Spouse Leave

Military spouse leave lasts for up to 10 days. The qualified military servicemember must be on leave from deployment during a period of military conflict.

Employee Pay During Military Spouse Leave

Military spouse leave is unpaid. You are not obligated to pay nonexempt employees who are on military spouse leave. However, you must pay exempt employees for any day in which they perform any work. You cannot deduct from the exempt employee’s salary for a partial day of absence.

You can allow employees to use vacation, PTO or other similar accrued annual leave during military spouse leave. However, you cannot require them to do so.

If the employee requests to use employer provided paid leave, such as vacation or PTO for a partial or full day of absence, you can deduct the time from the employee’s paid time off benefit(s). If the exempt employee works a partial day and does not authorize a deduction from a paid time off benefit, the employee must be paid for the full day.

Rights of Employees Returning from Military Spouse Leave

You cannot retaliate against employees who request or take military spouse leave. You must reinstate any employee to their position upon return from military spouse leave.

1. Military and Vet. Code sec. 395.10