"Qualifying exigency"—one of two types of military FMLA leave, and one of those great regulatory terms that gives the illusion of clarity but is hard to pin down in the real world.
The FMLA allows qualified employees with family members actively or formerly in the military to take leave under two circumstances: qualifying exigency (we’ll cover that today) and servicemember caregiver (that’s for tomorrow).
Qualifying Exigency Leave
An eligible employee is entitled to take up to 12 weeks of FMLA leave in a 12-month period "because of 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 to active duty) in the armed forces."
In the final FMLA regulations, "qualified exigency" is defined as falling into one of eight categories:
(1) Short-notice deployment
To address any issue that arises from the fact that a covered military member is notified of an impending call or order to covered active duty 7 or less calendar days before the date of deployment. Leave taken for this purpose can be used for a period of 7 calendar days beginning on the date a covered military member is notified of an impending call or order to covered active duty.
(2) Military events and related activities
To attend any official ceremony, program, or event sponsored by the military that is related to the call to active duty
To attend 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 call to duty
(3) Child care and school activities
To arrange for alternative child care
To provide child care for a covered child on an urgent, immediate-need basis (but not on a routine, regular, or everyday basis)
To enroll in or transfer to a new school or daycare facility
To attend meetings with staff at a school or a daycare facility, such as meetings with school officials regarding disciplinary measures, parent-teacher conferences, or meetings with school counselors, for a covered child
(4) Financial and legal arrangements
To make or update financial or legal arrangements to address the covered military member’s absence (such as preparing and executing financial and healthcare powers of attorney, transferring bank account signature authority, obtaining military identification cards, or preparing or updating a will)
To act as the covered military member’s representative before a federal, state, or local agency for purposes of obtaining, arranging, or appealing military service benefits while the covered military member is on covered active duty or call to covered active duty status and for a period of 90 days following the termination of the covered military member’s active duty status
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(5) Counseling
To attend counseling provided by someone other than a healthcare provider for oneself, for the covered military member, or for a covered child provided that the need for counseling arises from the call to duty
(6) Rest and recuperation
To spend time with a covered military member who is on short-term, temporary rest and recuperation leave during the period of deployment
(7) Post-deployment activities
To attend arrival ceremonies, reintegration briefings and events, and any other official ceremony or program sponsored by the military for a period of 90 days following the termination of the covered military member’s active duty status
To address issues that arise from the death of a covered military member while on active duty status, such as meeting and recovering the body of the covered military member and making funeral arrangements
(8) Additional activities
To address other events that arise out of the covered military member’s covered active duty or call to covered active duty status provided that the employer and employee agree that such leave qualifies as an exigency and agree to both the timing and duration of such leave
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Certification of Leave for a Qualifying Exigency
The first time an employee requests leave because of a qualifying exigency, an employer may require that the employee provide a copy of the active-duty orders or other documentation issued by the military. This information need be provided to the employer only once.
An employer may require that leave for any qualifying exigency be supported by a certification from the employee that sets forth an extensive list of information relating to the qualifying exigency. Certifications could include documents such as meeting announcements for informational briefings, a document confirming a meeting with a counselor or school official, or a bill of service for legal or financial affairs. DOL’s Certification of Qualifying Exigency for Family Military Leave (Form WH-384) contains all of the permissible inquiries and information required for employers to make an FMLA eligibility determination for qualifying exigencies.
In tomorrow’s Advisor, a look at the other military FMLA leave—"servicemember caregiver"—and an introduction to an extraordinary FMLA guide that puts FMLA answers at your fingertips.
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