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Washington State's New Military Family Leave Act ("MFLA")

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On March 19, 2008, Washington Governor Christine Gregoire signed into law the Military Family Leave Act ("MFLA"). This new state law provides unpaid leave for spouses of military personnel who are notified of active deployment, or who are notified of leave during their active deployment. The purpose of this leave is to ensure that military families are able to spend time together before deployment or during the military personnel's leave.

What employers are affected? All employers in Washington, regardless of the number of employees.

Which employees are entitled to leave? All employees who, on average, perform 20 or more hours of work per week. An employee is not required to have worked for the employer for a certain number of hours or months before being entitled to leave. Independent contractors are excluded from coverage.

When is an employee entitled to leave? When the employee's spouse who is a member of the Armed Forces of the United States, the National Guard, or the Reserves, (1) is notified of an impending call or order to active duty, or (2) if already on deployment, receives notice of leave during a period of military conflict. A period of military conflict includes periods when a war or national emergency is declared.

How much leave? Up to 15 days of unpaid leave per deployment. There is no requirement that all 15 days be taken at the same time, and an employee may take part of the leave at the time of initial deployment and reserve part of the leave to use when the spouse is on leave from active deployment.

Right to utilize available paid leave. MFLA leave is unpaid, but the employee has the right to utilize accrued paid leave for all or any part of the MFLA leave. The statute does not specify whether this right applies to all types of available paid leave (sick leave, vacation, personal, etc.), or only to paid vacation leave. Until there is further clarification, employers should consider allowing employees to utilize any type of appropriate paid leave.

How much notice must the employee give? The employee must notify the employer of the intention to take leave within five business days following receipt of the notice giving rise to the leave.

Job restoration. An employee taking MFLA leave is entitled to be restored to employment in the same manner as provided under the Washington Family Leave Act (RCW 49.78.280). Thus, the employee must be restored to the same position that he or she held upon beginning the leave, or to an equivalent position.

Medical and dental benefits. An employee taking MFLA leave is entitled to continue medical and dental benefits coverage during the leave just as is required under the Washington Family Leave Act (RCW 49.78.290). Under RCW 49.78.290, if an employer's policy or an applicable collective bargaining agreement provides that the employer continues benefit coverage during any leave period, then the employer must also do so for MFLA leave. On the other hand, if there is no such requirement, the employee is entitled to continue the coverage at his or her own expense in essentially the same manner that terminating employees may continue coverage under COBRA.

Right to private cause of action for violations. Any employee who is denied leave, job restoration, or benefits, or who is retaliated against for utilizing MFLA leave, is entitled to bring a private cause of action as provided for in the Washington Family Leave Act (RCW 49.78).

Effective date. June 12, 2008.

Federal FMLA amendments. Recently we notified you of changes in the federal Family Medical Leave Act ("FMLA"). One of those changes provides FMLA leave for caregivers of a service member who suffers a serious injury or illness while on active duty. Another provides FMLA leave to family members of military personnel for "any qualifying exigency" when a spouse, child, or parent is on or called to active duty. The Department of Labor has not yet defined "any qualifying exigency," and we advised you to interpret it broadly.

The leave provided under the new Washington MFLA differs from the federal FMLA in that (1) the MFLA applies to all employers, not just employers with 50 or more employees, (2) the MFLA applies to all employees who work on average 20 hours a week or more, regardless of the length of their employment with the employer, (3) the MFLA does not require a "qualifying exigency" for entitlement to leave, and (4) the MFLA grants leave for spouses only, and does not pertain to parents or children of military personnel.

For more information on the changes to the federal FMLA, please click HERE.