by Susan M. Webman and Burton F. Fishman Fortney & Scott, LLC
Employees already eligible for leave under the Family and Medical Leave Act (FMLA) with family in the military are entitled to two new forms of FMLA leave benefits — qualifying exigency (QE) leave and military caregiver leave (MCL). The rules for employer coverage (employing 50 employees within a 75-mile radius) and employee eligibility (they’ve worked 12 months and 1,250 hours) are the same as for traditional FMLA leave. Of help to employers, the U.S. Department of Labor’s (DOL) November 2008 rules also created a required notice and certification process similar to what applies to traditional FMLA leave.
On the other hand, the military FMLA leave provisions expanded the reasons employees may take leave, which family members are eligible for leave, and for some employees, the length of time they may be absent. For example, to give meaning to the new military provisions, the DOL lifted the age and disability limitations for “son” and “daughter” as they apply to military leave. As with traditional FMLA leave, however, employers may ask an employee for reasonable documentation or, when proof is unavailable, a statement of the family relationship.
This week, we look at qualifying exigency leave. Next week, we’ll examine military caregiver leave.
Audio Conference: FMLA Leave for Military Families: New Rules, New Calendar, New Challenges
Qualifying exigency leave
The type of military family leave that will be requested most often is qualifying exigency leave. A spouse, parent, or child of a service member may take up to 12 workweeks of unpaid leave for any QE arising out of the fact that the service member is on active duty or has been notified of an impending call or order to active duty. Employers should treat this leave as yet another reason for an employee to take up to 12 workweeks of unpaid leave.
Qualifying exigency leave is not available to all military families. The DOL has ruled that QE leave was enacted to assist families of members of the National Guard and reserves (and certain retired members of the armed forces) who face unexpected disruptions to family life. Families of regular armed forces members and those serving in the National Guard under orders from a state governor are not eligible for QE leave. Employers need provide QE leave only because of a federal call to duty or a state call under order of the President (unless a state law so requires).
State-by-state comparison of 50 employment laws in all 50 states, including family and medical leave
Eight types of qualifying exigencies. DOL regulations limit “any qualifying exigency” to a specific and exclusive list of eight nonmedical categories:
- short-notice deployment (seven or fewer calendar days before the date of deployment);
- military events and related activities (before and during deployment, including family support or assistance programs and informational briefings);
- childcare and school activities (e.g., to arrange for alternative childcare, provide childcare on an urgent, immediate-need basis, or attend meetings at a school or daycare facility);
- financial and legal arrangements (e.g. , to prepare and execute powers of attorney, enroll for military health care, or prepare a will or living trust);
- counseling (non-medical for the employee, the service member, or a child);
- rest and recuperation (up to five days for each rest period);
- post-deployment activities (e.g., to attend ceremonies and briefings for a period of up to 90 days following the service member’s return); and
- additional activities agreed to by the employer and employee.
Notice, certification, and verification of qualifying exigency leave. An employee seeking qualifying exigency leave must provide notice of the need for leave “as soon as practicable,” which could be more than the 30 days required for traditional FMLA leave or as late as the same day. Employers may require a copy of any available military documentation showing expected dates of active-duty service one time for each service member’s call to service. They also can contact the appropriate U.S. Department of Defense (DOD) unit to verify the service member’s orders.
An employer may seek a certification from an employee each time qualifying exigency leave is requested. That would include a description of the facts underlying the exigent need for leave, the approximate dates and purpose of the absence, and, for reduced or intermittent leave, an estimate of the frequency and duration of the exigency. If a third party is involved, the employee must provide contact information, and the employer may contact the third party, but only for verification that the meeting is scheduled or that the employee’s absence is required. There is a DOL optional certification form that conforms to these requirements. Unlike traditional FMLA leave, recertification is not permitted.
Next week, we’ll look at military care giver leave protections under the FMLA.
HR Guide to Employment Law: A practical compliance reference manual covering 14 topics, including FMLA