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Military Duty Leave for Employees in California

Filed under Managing the Workplace. Fact checked on May 25, 2012.

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California employers must provide employees with leave for military duty in accordance with these state rules.

Public and private employees in California who are members of the reserve corps of the U.S. Armed Forces, the National Guard or the naval militia are entitled to a temporary leave of absence without pay while engaged in military duty ordered for purposes of military training, drills or like activity not to exceed 17 calendar days annually. Those in the state militia reserves are entitled to 15 days of temporary military leave absence each year.


All members called to active duty in the California National Guard who leave a position (not temporary) in the private sector must be restored to that position or to a position of similar seniority, status, and pay without loss of retirement or other benefits after service if several conditions are met.

The employee must have a certificate of satisfactory Guard service, must apply 40 days after release and must be qualified to perform the duties of the position. Under these conditions, the employee is given a leave of absence for the time served. However, restoration is not required if the employer's circumstances have so changed as to make it impossible or unreasonable to do so. Restored employees cannot be discharged without cause within one year.

Part-time employees are subject to the same conditions for reemployment, except they must make application within five days after release from service. Persons not reemployed may file actions in superior court to require an employer to comply with the law and to compensate the person for any loss of wages or benefits due to the employer's unlawful action. No fees or costs will be charged and the individual may be represented by the district attorney.

Prohibited Discrimination

Discrimination against persons in the military or naval service of the state or of the U.S. is prohibited in California. The prohibition covers all aspects of employment and specifically bans employers from discharging anyone because of the performance of any military duty or training, or hindering a person from performing military service or from attending military training.

Also, no member of the military forces may be prejudiced or injured by any person, employer, or officer or agent of any corporation, company, or firm with respect to that member's employment, position or status or be denied or disqualified for employment by virtue of membership or service in the military forces of California or of the United States.

Additionally, private employers cannot restrict or terminate any collateral benefit for employees because of an employee's temporary incapacitation (of 52 weeks or less) incident to National Guard or naval militia duty.

Provisions for Civil Air Patrol

Employers who employ 16 or more employees are required to provide at least ten days of leave per year for voluntary members of the California Wing of the Civil Air Patrol in order for volunteers to respond to an emergency operational mission.

Employee volunteers must be employed by the employer for at least 90 days immediately preceding the commencement of leave. Employees are required to give the employer as much notice as is possible of the intended leave dates.

Upon expiration of the leave, an employer is required to restore the employee to his or her position or to a position with equivalent seniority, benefits, pay and other terms and conditions of employment, unless the employee is not restored because of conditions unrelated to the exercise of these leave rights.

The employer is not required to grant such leave to Civil Air Patrol employees who are required to respond as first responders or disaster service workers for a local, state, or federal agency to the same or a simultaneous emergency operational mission.

Family Military Leave

Employers with 25 or more employees are required to allow an employee who is the spouse of a qualified member of the Armed Forces, National Guard or Reserves to take up to ten days of unpaid leave when the qualified member is on leave from deployment during a period of military conflict.

A qualified member is a member of the Armed Forces who has been 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, or a member of the National Guard or the Reserves who has been deployed during a period of military conflict.

Employees are covered under this provision if employed for hire for an average of 20 or more hours per week for an employer other than an independent contractor.

Employees are required to provide the employer with notice of intent to take leave within two business days of receiving official notice that the spouse will be on leave from deployment and must submit written documentation certifying that the spouse will be on leave from deployment during the requested leave time.

Employees are protected from employer retaliation for requesting leave.

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