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Pay & Leave Leave Administration

Fact Sheet: Family and Medical Leave Qualifying Exigency Leave

Entitlement

Under the Family and Medical Leave Act of 1993 (FMLA), most Federal employees are entitled to a total of up to 12 workweeks of unpaid leave during any 12-month period for a number of purposes.  See our Family and Medical Leave fact sheet for more information.  Qualifying exigencies are one of the circumstances which entitle employees to up to 12 workweeks of unpaid FMLA leave during any 12-month period.  Qualifying exigencies arise when the spouse, son, daughter, or parent of an employee is on covered active duty in the Armed Forces, or has been notified of an impending call or order to covered active duty.  Covered active duty includes duty of a member of a regular component of the Armed Forces during deployment to a foreign country, and duty of a member of a reserve component of the Armed Forces during deployment to a foreign country under a call or order to active duty in support of specified contingency operations.  Qualifying exigency leave under the FMLA helps employees manage family affairs when their family members are called to or on covered active duty.

Categories of Qualifying Exigencies

An employee is entitled to use qualifying exigency leave for the following purposes:

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 fewer calendar days prior to the date of deployment.  Leave taken for this purpose can be used for a period of up to 7 calendar days beginning on the date a covered military member is notified of an impending call or order to covered active duty.

Military events and related activities

  • To attend any official ceremony, program, or event sponsored by the military that is related to the covered active duty or call to covered active duty status of a covered military member.
  • To attend family support or assistance programs and informational briefings sponsored or promoted by the military, military services organization, or the American Red Cross that are related to the covered active duty or call to covered active duty status of a covered military member.

Childcare and school activities

  • To arrange for alternative childcare when the covered active duty or call to active duty status of a covered military member necessitates a change in the existing childcare arrangement for a child.
  • To provide childcare on an urgent, immediate need basis (but not on a routine, regular, or everyday basis) when the need to provide such care arises from the covered active duty or call to covered active duty status of a covered military member.
  • To enroll in or transfer to a new school or day care facility a child, when enrollment or transfer is necessitated by the covered active duty or call to covered active duty status of a covered military member.
  • 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 child when such meetings are necessary due to circumstances arising from the covered active duty or call to covered active duty status of a covered military member.

Financial and legal arrangements

  • To make or update financial or legal arrangements to address the covered military member’s absence while on covered active duty status or call to covered active duty status, such as preparing and executing financial and health care powers of attorney, transferring bank account signature authority, enrolling in the Defense Enrollment Eligibility Reporting System (DEERS), obtaining military identification cards, or preparing or updating a will or living trust.
  • 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 status or call to covered active duty status, and for a period of 90 days following the termination of the covered military member’s covered active duty status.

Counseling

  • To attend counseling provided by someone other than a health care provider for oneself, for the covered military member, or for a child of the covered military member, provided that the need for counseling arises from the covered active duty or call to covered active duty status of a covered military member.

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.  Eligible employees may take up to 5 days of leave for each instance of rest and recuperation.

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 covered active duty status.
  • To address issues that arise from the death of a covered military member while on covered active duty status, such as meeting and recovering the body of the covered military member and making funeral arrangements.

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 agency and employee agree that such leave qualifies as an exigency, and that they agree to both the timing and duration of such leave.

Documentation

Active Duty Orders

The first time an employee requests leave because of a qualifying exigency arising out of the covered active duty or call to covered active duty status of a covered military member, an agency may require the employee to provide a copy of the covered military member’s active duty orders or other documentation issued by the military that indicates the covered military member is on covered active duty or call to covered active duty status, and the dates of the covered military member’s active duty service.  This information need only be provided to the agency once, unless another qualifying exigency arises out of a different covered active duty or call to covered active duty status by the same or a different covered military member.

Certification

An agency may require that leave for any qualifying exigency be supported by a certification from the employee that sets forth the following information:

  • A statement or description, signed by the employee, of appropriate facts regarding the qualifying exigency for which FMLA leave is requested.  The facts must be sufficient to support the need for leave.  Such facts include the type of qualifying exigency for which leave is requested and any available written documentation that supports the request for leave, such as a copy of a meeting announcement for informational briefings sponsored by the military, a document confirming an appointment with a counselor or school official, or a copy of a bill for services for the handling of legal or financial affairs;
  • The approximate date on which the qualifying exigency commenced or will commence;
  • If an employee requests leave because of a qualifying exigency for a single, continuous period of time, the beginning and end dates for such absence;
  • If an employee requests leave because of a qualifying exigency on an intermittent or reduced leave schedule basis, an estimate of the frequency and duration of the qualifying exigency; and
  • If the qualifying exigency involves meeting with a third party, appropriate contact information for the individual or entity with whom the employee is meeting (such as the name, title, organization, address, telephone number, fax number, and e-mail address) and a brief description of the purpose of the meeting.

The Department of Labor (DOL) has developed an optional form (Form WH-384) to use in obtaining a certification that meets the qualifying exigency certification requirements. The DOL form is optional and reflects certification requirements so as to permit the employee to furnish appropriate information to support his or her request for leave because of a qualifying exigency.  Agencies may use Form WH-384 or another document containing the same basic information for qualifying exigency purposes. 

Agency Verification

If an employee submits a complete and sufficient certification to support his or her request for leave because of a qualifying exigency, the agency may not request additional information from the employee.  However, the agency may verify the information provided and does not need the employee’s permission to do so.

  • If the qualifying exigency involves meeting with a third party, the agency may contact the individual or entity with whom the employee is meeting for purposes of verifying a meeting or appointment schedule and verifying the information provided in the employee’s statement regarding the meeting between the employee and the specified individual or entity.  No additional information may be requested by the agency.
  • An agency may contact an appropriate unit of the Department of Defense to request verification that a covered military member is on covered active duty or call to covered active duty status.  No additional information may be requested by the agency.

For purposes of confirmation of family relationship, the agency may require the employee giving notice of the need for qualifying exigency leave to provide reasonable documentation or statement of family relationship. This documentation may take the form of a simple statement from the employee, or a child's birth certificate, a court document, etc. The agency is entitled to examine documentation such as a birth certificate, etc., but the employee is entitled to the return of the official document submitted for this purpose.

Substitution of Paid Leave for Unpaid FMLA Leave

An employee may elect (but an agency may not require an employee) to substitute annual leave for unpaid FMLA leave for qualifying exigency purposes, consistent with current laws and the U.S. Office of Personnel Management’s regulations governing use of annual leave.  An employee must notify the agency of his or her intent to substitute annual leave for FMLA leave without pay prior to the date the leave commences.  An employee may not retroactively substitute annual leave for previously-taken FMLA leave without pay.

Intermittent Leave or Reduced Leave Schedule

FMLA qualifying exigency leave may be taken intermittently or on a reduced leave schedule.  If the need for leave is foreseeable, the employee must provide notice as soon as practicable, regardless of how far in advance the leave is being requested. 

Definitions

Covered active duty or call to covered active duty status means in the case of a--

  • regular component of the Armed Forces, duty during the deployment of the member with the Armed Forces to a foreign country under a call or order to active duty (or notification of an impending call or order to active duty); or
  • member of a reserve component of the Armed Forces, duty during the deployment of the member with the Armed Forces to a foreign country under a call or order to active duty (or notification of an impending call or order to active duty) in support of a contingency operation pursuant to any of the following sections of title 10, United States Code, or any other provision of law during a war or during a national emergency declared by the President or Congress: section 688, 12301(a), 12302, 12304, 12304a, 12305, 12406, or chapter 15.

Child of a covered military member means a biological, adopted, or foster child, a stepchild, or a legal ward of a covered military member, or a child for whom a covered military member stands in loco parentis, who is either under age 18, or age 18 or older and incapable of self-care because of a mental or physical disability at the time the FMLA leave is to commence.

Covered military member means the employee’s spouse, son, daughter, or parent on covered active duty or call to covered active duty status.

Parent means a biological, adoptive, step or foster father or mother, or an individual who stood in loco parentis to an employee when the employee was a son or daughter.  This term does not include parents “in law.”

Son or daughter on covered active duty or call to covered active duty status means the employee’s biological, adopted, or foster child, stepchild, legal ward, or a child for whom the employee stood in loco parentis, who is on covered active duty status, and who is of any age.

Spouse means a husband or wife as defined or recognized under State law for purposes of marriage in the State where the employee resides, including common law marriage in States where it is recognized.

References

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