Qualifying Exigency Leave Under the Family and Medical Leave Act (FMLA)

The Family and Medical Leave Act (“FMLA”) allows an eligible employee to take leave because of any “qualifying exigency” arising out of the fact that a spouse, 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.  See 29 U.S.C. 2612(a)(1)(E).  “Covered active duty” is generally defined as deployment of either a regular or reserve member of the Armed Forces to a foreign country.  See 29 U.S.C. 2611(14).

The Department of Labor’s FMLA regulations define the types of “qualifying exigencies” for which leave may be required to include the following:

  1. Short Notice Deployments, including issues that arise from a deployment notification received seven days or less before the date of deployment;
  2. Military Events and Related Activities, including military ceremonies, programs, or events, family support or assistance programs, or informational briefings that are related to the deployment;
  3. Childcare and School Activities, including (i) making arrangements for alternative childcare; (ii) providing childcare on an urgent, immediate basis; (iii) enrolling in or transferring to a new school or day care facility; and (iv) attending meetings with staff at a school or day care facility;
  4. Financial and Legal Arrangements, including (i) making or updating financial or legal arrangements, such as executing powers of attorney or transferring bank accounts, enrolling in the Defense Enrollment Eligibility Reporting System (DEERS), obtaining military ID cards, or preparing or updating a will or living trust; and (ii) acting as a covered military member’s representative before a federal, state, or local agency for purposes of obtaining, arranging, or appealing military service benefits;
  5. Counseling, including attending counseling sessions for the employee, a covered military member, or a child related to the deployment;
  6. Rest and Recuperation, including up to five days of leave to spend time with a covered military member who is on short-term, temporary, rest and recuperation leave;
  7. Post-Deployment Activities, including (i) time to attend arrival ceremonies, reintegration briefings and events, and any other official ceremony or program sponsored by the military; or (ii) time to address issues that arise from the death of a covered military member; and
  8. Additional Activities as agreed upon by both the employer and employee.

See 29 C.F.R. § 825.126.

The DOL also has a certification form that employers can use for an employee’s request for qualifying exigency FMLA leave, which is available here.

Takeaways:  There are a variety of potential situations that may make an employee eligible for qualifying exigency leave under the FMLA.  Employers with employees who have family members in the military should make sure that they are familiar with what constitutes a “qualifying exigency” so that they can effectively administer FMLA leave.

About Michael Miller

Michael is a Chambers-rated attorney in Briggs and Morgan's Employment, Benefits, and Labor group and is head of the firm’s Employment Law Counseling and Compliance practice group. He has 25 years experience counseling employers to prevent unwanted litigation and advises companies of ongoing changes in federal, state and local employment law. Michael advises employers in all areas of employment law including discipline and discharge, leaves of absence, wage and hour compliance, non-compete and confidentiality agreements, affirmative action plans, background checking, and drug/alcohol testing. For Michael's full bio, click here.

Posted on November 28, 2012, in Employees and the Military, Family and Medical Leave Act and tagged . Bookmark the permalink. Leave a comment.

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