“What did I do wrong?” and “Am I doing this correctly” are frequent questions from clients regarding FMLA administration. This is the 23rd blog in this series, which digs into the FMLA regulations to address discrete mis-steps that can result in legal liability.
Not understanding all of the reasons an employee can take FMLA leave for a qualifying exigency.
In my frequent discussions with clients on FMLA issues, the topic of FMLA leave for a qualifying exigency rarely arises. When it does, an employer not well-versed with this FMLA leave reason can take inadvertent mis-steps leading to compliance issues.
FMLA leave for a qualifying exigency has many facets. Eligible employees may take FMLA leave for a qualifying exigency while the employee’s spouse, son, daughter, or parent is on covered active duty or call to covered active duty status, or has been notified of such, under 29 CFR § 825.126.
The FMLA regulations provide several examples of what constitutes a qualifying exigency:
- Short-notice deployment – Addresses any issue arising from the military member notified of an impending call or order to covered active duty 7 or less calendar days prior to deployment.
- Military events and related activities – Official ceremonies, programs, or events related to the call to or covered active duty status of the military member.
- Childcare and school activities – To arrange for alternative child care, to provide childcare on an urgent immediate need basis (not regular basis), to enroll or transfer to a new school or daycare facility, to attend meetings with school or daycare staff, all due to circumstances arising from the call to or covered active duty status of the military member.
- Financial and legal arrangements – To make or update financial or legal arrangements to address the military member’s absence while on call to or covered active duty status, such as a will or legal trust, powers of attorney, transferring bank account signature authority, or obtaining military identification cards.
- Counseling – To attend counseling provided by someone other than a health care provider for oneself, the military member, or child of a military member (including a biological child, foster child, stepchild, or legal ward) related to the call to or covered active duty status of the military member.
- Rest and recuperation – To spend time with the military member who is on short-term, temporary, or R&R leave during the period of deployment.
- Post-deployment activities – To attend arrival ceremonies, reintegration briefings and events, and any other official ceremony or program for up to 90 days following the termination of the military members covered active duty status.
- Parental care – To care for the parent of a military member who is incapable of self-care and who is the military member’s biological, adoptive, step, or foster parent, or any other individual who stood in loco parentis to the military member when under age 18.
- Additional activities – To address other events that arise out of the military member’s call to or covered active duty status, provided that an employer and employee agree that such leave shall qualify as an exigency.
The FMLA regulations describe these reasons in more detail at the following link: https://www.ecfr.gov/cgi-bin/text-idx?c=ecfr&sid=abbd92cdff37c5d32de741cc5ccc1e81&rgn=div5&view=text&node=29:126.96.36.199.54&idno=29#se29.3.825_1126.
The U.S. Department of Labor’s fact sheet on Qualifying Exigency Leave under the Family and Medical Leave Act is also a good resource should questions arise: https://www.dol.gov/whd/regs/compliance/whdfs28mc.pdf.
When an employee requests FMLA leave based on qualifying exigencies, an employer should re-familiarize itself with these regulatory provisions to ensure the FMLA leave is properly granted.