Human Resources and Security Specialists should use this tool to determine the correct investigation level for any covered position within the U.S. Federal Government.
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.
An employee is entitled to use qualifying exigency leave for the following purposes:
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.
An agency may require that leave for any qualifying exigency be supported by a certification from the employee that sets forth the following information:
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.
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.
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.
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.
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.
Covered active duty or call to covered active duty status means in the case of a--
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.