September 22, 2015
The type of leave, referred to in the regulations as “qualifying exigency leave,” went into effect January 16, 2009. This type of leave permits an employee to take 12 weeks of FMLA leave for “any qualifying exigency . . . arising out of the fact that the spouse, or a son, daughter, or parent of the employee is on covered active duty (or has been notified of an impending call or order to covered active duty) in the Armed Forces.”
Qualifying exigency leave counts against an employee’s general 12-week in 12-months leave entitlement, and the general 12-month leave year applies, rather than the separate entitlement and leave year used for military caregiver leave.
The regulations define a number of terms that apply specifically to qualifying exigency leave, including “covered active duty or call to covered active duty,” “deployment to a foreign country” and “son or daughter on covered active duty.”
A. The new regulations define the term “qualified exigency” to include the following:
1. Short-notice deployment, meaning a call or order to active duty seven (7) or less calendar days prior to deployment. FMLA leave is permitted during a seven-day calendar period based on this exigency, beginning on the date of notification of deployment. §825.126(b)(1).
2. Military events and related activities, including official ceremonies, programs, family support or assistance programs, informational briefings, or other events sponsored by the military that are related to the active duty of a covered military member. §825.126(b)(2). Arrival ceremonies or other events following termination of a covered military member’s active duty status are included if they occur within ninety (90) days of the termination. §825.126(b)(7)(i).
3. Childcare and school activities, including providing childcare on an urgent, immediate-need basis, arranging alternative childcare or schooling when the active duty status of a covered military member necessitates a change in existing arrangements, or attending meetings with staff at a school or daycare facility. §825.126(b)(3).
4. Attending to financial and legal arrangements necessitated by the covered military member’s active duty, or serving as a representative before administrative agencies for purposes of obtaining military service benefits. §825.126(b)(4).
5. Counseling, provided that the need for counseling arises from the active duty. §825.126(b)(5). Note that this is non-medical counseling, provided by someone other than a heath care provider.
6. Spending time with a covered military member on short-term, temporary, rest and recuperation leave from active duty, for up to fifteen (15) days for each instance of rest and recuperation leave. §825.126(b)(6). Note that the 2013 regulations increased this leave from five days to 15.
7. Post-deployment activities, including arrival ceremonies, reintegration events, and official military programs that occur within ninety (90) days following the termination of active duty. §825.126(b)(7)(i). This includes leave for the death of a covered military member on active duty status. Leave is permitted to address all attendant issues. §825.126(b)(7)(ii).
8. The 2013 regulations added leave for parental care, including to arrange for alternative care for a parent of a servicemember when that parent is incapable of self-care as defined by the regulations, to provide parental care on an urgent, immediate basis, to admit or transfer a parent to a care facility, and to attend meetings with facility staff, when the need for leave arises from the servicemember’s service. §825.126(b)(8).
9. Additional activities, provided that the employer and employee agree that leave for the activities will qualify as an exigency, and provided that the employer and employee agree to both the timing and duration of the leave. §825.126(b)(9).
B. Eligible employees – Employees eligible for qualified exigency leave include those whose spouse, parent, son, or daughter is on covered active duty or a call to covered active duty. §825.126(a). In the initial regulations, covered military members, for purposes of this regulation, included only members of the military’s Reserve components, the National Guard, and certain retired members of the Regular Armed Forces and Reserve. §825.126(b)(2). Members of the Regular Armed Forces were initially not considered “covered military members.”
C. 2009 expansion of eligibility to include Regular Military Components
a. The October 2009 changes redefined “covered activity duty” to include:
“(A) in the case of a member of a regular component of the Armed Forces, duty during the deployment of the member with the Armed Forces to a foreign country; and
(B) in the case of a member of the reserve component of the Armed Forces, duty during the deployment of the member with the Armed Forces to a foreign country under a call or order to active duty under a provision of law referred to in section 101(a)(13)(B) of title 10, United States Code.”
b. With this change, qualifying exigency leave was expanded to include eligible family members of active duty servicemembers in the Reserve and Regular components of the Armed Forces. Specifically, the Act now permits family members of all active duty servicemembers to take up to 12 weeks of unpaid jobprotected leave in a 12-month period for a qualifying exigency arising out of the covered active duty or call to covered active duty status of a spouse, son, daughter, or parent. These changes are reflected in the 2013 regulations.§825.126(a).
c. The October 2009 change also made clear that the servicemember must be deployed to a foreign country. Prior to the 2009 expansion, exigency leave was limited to family members of Reserve and National Guard servicemembers whose deployments “related to contingency operations (i.e., an action or operation against an opposing military force)” but did not make clear that the deployment must be to a foreign country. After the 2009 changes, there is no leave entitlement for either a regular or reserve member of the Armed Forces for
domestic deployment. The call to duty for a reserve member must still involve a contingency operation. Additionally, for both regular and reserve members, the call must be a federal call to active duty, and state calls are only covered in certain situations. §825.126(a)(1)-(4).
D. Certification Issues
a. The first time that an employee requests leave because of a qualifying exigency, an employer may require the employee to provide a copy of the covered military member’s active duty orders or other documentation indicating that the member is on active duty or call to active duty status. §825.309(a). The employer may also require documentation of the dates of the active duty service. Id. An employer
may verify active duty information by contacting an appropriate unit of the Department of Defense. §825.309(d).
b. An employer may require the employee to submit a certification setting forth:
(1) a statement setting forth facts supporting the need for leave, including supporting documentation; (2) the approximate date when the exigency began or will begin; (3) the beginning and end dates of leave requested, if applicable; (4) an estimate of the frequency and duration of the qualifying exigency, if leave is sought on an intermittent or reduced schedule basis; (5) appropriate contact information if the exigency requires meeting with third parties; and (6) documentation regarding the granting of rest and recuperation leave, if appropriate. §825.309(b). The employee’s permission is not needed for the employer to verify meeting or appointments with third parties by contacting the third parties. §825.309(d).
The new regulations do not provide for recertification of the need for qualifying exigency leave. The Department of Labor has issued a sample certification form for qualifying exigency leave available at available at http://www.dol.gov/whd/fmla/. This form reflects the 2009 statutory changes and 2013 changes to the regulations.
E. Employee notice – For leave due to a qualifying exigency, the employee must provide notice of the need for leave as soon as practicable, regardless of how far in advance the leave is foreseeable. §825.302(a).