Oregon enacted its Military Family Leave Act (OMFLA) in June 2009. OMFLA requires employers with 25 or more employees to provide up to 14 days of family leave per deployment to employees whose spouses are in the military when certain conditions are met.
First, a “period of military conflict” must presently exist. Second, the employee must be employed for an average of at least 20 hours per week. Third, the employee’s spouse must have been notified of an impending call to active duty, been ordered to active duty, or been deployed. Fourth, the employee must provide notice of intent to take OMFLA leave within 5 business days of receiving the official notice regarding active duty or leave from deployment.
Even after being in effect for three years, there do not appear to be any published decisions interpreting OMFLA. However, one potentially vexing legal issue that may emerge at some point revolves around OMFLA’s use of the term “period of military conflict,” which is defined as follows:
“‘Period of military conflict’ means a period of war:
1. Declared by the United States Congress;
2. Declared by executive order of the President of the United States; or
3. In which a reserve component of the Armed Forces of the United States is ordered to active duty pursuant to Title 32 of the United States Code or section 12301 or 12302 of Title 10 of the United States Code.”
What happens when it is not clear whether a “period of military conflict” presently exists? For example, is a joint resolution of Congress authorizing the President to use force tantamount to a Congressional declaration of war? Is a president’s announcement of a “War on Terror” equivalent to an executive order?
At least two legal commentators have observed that recent military campaigns, like the one in Afghanistan, have challenged our conventional understanding of how we categorize America’s kinds of “wars.” Conflicts no longer fall into the neat categories of “unlimited wars” or “momentary interventions.”
Given the breakdown in our conventional understanding and the likelihood that the military will continue to be actively engaged, the question of what precisely constitutes a “period of military conflict” might find its way to the courts. This likelihood is only increased as more and more members of the military deploy for the second, third, or fourth times leading more and more military spouses to assert their rights to increasing amounts of leave under OMFLA.
