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Qualifying Exigency Leave: A New Type of FMLA Leave that Employers Need to Understand

by The Human Equation, Inc. on 8/12/2009
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What happens when an employee’s family member has been called to active military duty? Is the employee eligible for time off under the Family and Medical Leave Act (FMLA)?  Last year, an employer might have directed the employee to deal with any issues on his or her own time. Now, however, with the passing of the National Defense Authorization Act (NDAA) in 2008 and the issuance of the Department of Labor’s FMLA regulations in 2009, an employer might have to respond, “How long will you be out?”

Congress passed the FMLA in 1993 to help employers and employees balance professional and personal demands. The FMLA entitles employees to take leave in order to address health and family issues without jeopardizing their job security. Eligible employees can take a leave of up to 12 workweeks during a 12-month period for a variety of reasons relating to family demands, such as the birth or adoption of a son or daughter; the need to care for a spouse, child, or parent; or the need to deal with an employee’s own serious health condition. 

In response to the country’s current military involvements, Congress passed the NDAA to amend the FMLA to include two additional types of leave that specifically address the needs of employees whose family members are part of the U.S. Armed Forces. Although the NDAA essentially created two additional types of leave, military caregiver leave and qualifying exigency leave, this article will focus on the general requirements of the qualifying exigency leave entitlement.

Pursuant to the FMLA’s qualifying exigency leave provision, a covered employee is entitled to a total of 12 workweeks of unpaid leave in a given 12-month period for qualifying exigencies arising out of the fact that the employee’s spouse, son, daughter, or parent is on active duty, or has been notified of an impending call or order to active duty, in support of a contingency operation. A contingency operation is generally a military operation in which members of the armed forces are or may become involved in military actions, operations, or hostilities against an enemy or opposing military force.

According to the regulations, “qualifying exigencies” include:

  • Up to seven days of leave to deal with issues arising from a covered military member’s short notice deployment, which is a deployment on seven or fewer days of notice;
  • Military events and related activities, such as official ceremonies, programs, or events sponsored by the military, or family support or assistance programs and informational briefings sponsored or promoted by the military, military service organizations, or the American Red Cross that are related to the active duty or call to active duty status of a covered military member;
  • Qualifying childcare and school activities arising from the active duty or call to active duty status of a covered military member, such as arranging for alternative childcare, providing childcare on a non-routine, urgent, immediate need basis; enrolling or transferring a child to a new school; and attending certain school and daycare meetings if they are necessary due to circumstances arising from the active duty or call to active duty of the covered military member;
  • Making or updating financial and legal arrangements to address a covered military member’s absence, such as preparing powers of attorney, transferring bank account signature authority, or preparing a will or living trust;
  • Attending counseling provided by someone other than a health care provider for oneself, the covered military member, or a child of the covered military member, the need for which arises from the active duty or call to active duty status of the covered military member;
  • Rest and recuperation leave of up to five days to spend time with a covered military member who is on short-term, temporary, rest and recuperation leave during the period of deployment;
  • Attending certain post-deployment activities within 90 days of the termination of the covered military member’s duty, such as arrival ceremonies, reintegration briefings, and any other official ceremony or program sponsored by the military, as well as addressing issues arising from the death of a covered military member; and
  • Any other additional activities that the employer and employee agree is a qualifying exigency which arose out of the covered military member’s active duty or call to active duty status.

It is important to note that the family member whose military service qualifies the employee for this type of leave must be a covered servicemember of the reserve components of the Armed Forces who is either on active duty or who has been called to active duty status. Thus, for purposes of this type of leave, members of the regular Armed Forces are excluded. Moreover, a call to active duty for purposes of leave taken because of a qualifying exigency refers to a Federal call to active duty. State calls to active duty are not covered under the FMLA unless the order came from the President of the United States.

When calculating the applicable 12-month leave period, an employer may use one of the following four methods:

  • use the calendar year;
  • use any fixed 12-month “leave year,” such as a fiscal year or the employee’s anniversary date;
  • use the 12-month period measured forward from the date of the employee’s first FMLA leave; or
  • use the “rolling” 12-month period measured backward from the date an employee uses any FMLA leave.

While the first three methods require no explaining, the rolling method is more complicated. Under the rolling method, each time an employee takes FMLA leave, the remaining leave entitlement would be any balance of the 12 weeks which has not been used during the immediately preceding 12 months. For example, assume that Employee A took four weeks of FMLA leave for a qualifying exigency beginning August 10, 2008; then four more weeks beginning December 15, 2008; and four more weeks beginning March 5, 2009.  If this individual’s  employer has adopted the rolling method of calculating the 12-month leave period, then Employee A would recoup each day of FMLA leave starting on August 10, 2009, then again on December 15, 2009, and again on March 5, 2010.

Qualifying exigency leave may be taken intermittently or on a reduced leave schedule. Employees have a general duty to make a reasonable effort to avoid unduly disrupting the employer’s operation. Moreover, an eligible employee may elect, or an employer may require the employee to substitute, any accrued paid vacation leave, personal leave, or family leave the employee has accumulated for some or all of any type of FMLA leave, including qualifying exigency leaves.

The FMLA requires that an employee seeking leave because of a qualifying exigency must notify his or her employer as soon as is practicable by the employee if the leave is foreseeable. As soon as practicable means as soon as both possible and practical, taking into account all of the facts and circumstances. In some cases, such notice must be given to the employer either the same day or the next business day after the employee becomes aware of the need for FMLA leave. And it is important to note that an employee does not need to mention “FMLA” in order to be protected by its provisions.

When faced with an employee requesting 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 issued by the military. The employee only needs to provide this information once.

An employer may also require that the leave be supported by a certification from the employee. In most cases, the employer should request the certification at the time the employee gives notice of the need for leave, or within five business days thereafter, if the leave was foreseeable. If the leave was unforeseeable, then the employer should request certification within five business days after the leave commences. The employee has 15 calendar days to comply with the request unless it is not practical for the employee to do so.

The employee’s certification in support of the qualifying exigency leave should set forth the following information:

  • a statement or description, signed by the employee, of the appropriate facts regarding the qualifying exigency, including the type of qualifying exigency and any available supporting documentation;
  • approximate dates;
  • the estimated frequency and duration of the leave, if intermittent; and
  • the appropriate contact information if the exigency leave involved meeting with a third party.

Since it is unlawful for an employer to interfere with, restrain, or deny the exercise of any rights granted by the FMLA, employers must remain diligent in their efforts to ensure compliance. And, while losing a valued employee for a protracted length of time can be disruptive to an employer, Congress, in extending FMLA protections to servicemembers’ families, has deemed this a sacrifice that an employer must make. 

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