Leave for Family of Members of the Armed Forces Deployed to a Foreign Country (Part V of FMLA Series)
In light of recent military deployments, employers should be reminded of Qualifying Exigency Leave provided for by the Family and Medical Leave Act (FMLA). We have been posting a series about navigating the complex maze that is the FMLA. At this time, we are now taking a turn down this multicursal puzzle to address the first of two specific types of leaves that are only available for family members of covered service members, the Qualifying Exigency Leave. In Part VI of this series, we will address leave to care for a covered service member with a serious injury or illness.
Eligible employees may take up to 12 weeks of FMLA leave because of a qualifying exigency arising out of the fact that the employee’s spouse, child, or parent is a military member on covered active duty (or has been notified of an impending call or order to active duty status). This leave is provided for one or more of the following reasons:
- Short-notice deployment
- Military events and related activities
- Childcare and school activities
- Financial and legal arrangements
- Counseling
- Rest and recuperation
- Post-deployment activities
- Parental care
- Additional activities
What is covered active status?
This means the deployment of the member with the Armed Forces to a foreign country under a Federal call or order to active duty in support of a contingency operation during a war or national emergency declared by the President or Congress.
How can an employer verify the military member’s covered active duty status?
The employer can contact the Department of Defense.
When a parent is seeking leave related to a child’s active military duty, is there an age limit?
No.
What is a short-notice deployment?
It is when the military member is notified of an impending call to covered active duty seven or less calendar days from the date of deployment.
What events and related activities qualify for exigency leave?
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 the military member; and 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 covered active duty or call to covered active duty status of the military member.
Similarly, what childcare and school activities qualify for exigency leave?
- Arranging for alternative childcare for a child of the military member when the covered active duty or call to covered active duty necessitates a change in childcare arrangement
- Providing childcare for a child of the military member on an urgent, immediate need basis (but not routine everyday basis)
- Enrolling or transferring a child of the military member to a new school or day care facility
- Attending meetings with staff at a school or daycare facility, such as meetings with school officials regarding disciplinary measures, parent-teacher conferences, and meetings with school counselors
Can leave taken for childcare and school activities apply to adult children of military members?
No, for the purposes of these qualifying exigencies, the child of the military member must be either under the age of 18 or, if over 18, incapable of self-care because of a mental or physical disability at the time that FMLA leave is to commence.
What type of financial or legal arrangements are covered?
Those required to address the military member’s absence while on covered active duty or call to covered active duty status, such as financial and healthcare powers of attorney, transferring bank account signature authority, obtaining military ID cards, or preparing/updating a will or living trust.
Is there a limit to the amount of exigency leave that can be taken for rest and recuperation?
Yes. The limit is 15 calendar days to spend time with a military member who is on short-term temporary Rest and Recuperation leave during deployment.
Are there requirements on who can step in to assist with the care of a military member’s parent?
Yes. Although the employee taking leave does not need to be related to the military member’s parent, the military member must be the parent, spouse, or child of the person taking leave.
Does entitlement to exigency leave end when the deployment is over?
No, arrival ceremonies, reintegration briefings and events, and any other official ceremony or program sponsored by the military are covered if within 90 days following the termination of the military member’s covered active duty status. Further, issues that arise from the death of a military member while on covered active duty status, such as making funeral arrangements and attending funeral services are also covered.
What if there are other issues that arise from a military member’s covered active duty that are not specifically spelled out in the regulations?
They may be covered, if the employer and employee agree that such leave qualifies as an exigency and agree to both the timing and duration of such leave.
As noted above, the first post in our series on FMLA summarized the steps an employer should follow when dealing with the FMLA labyrinth and addressed which employers are covered by the Act. The second post explained which employees are eligible for FMLA leave. The third post addressed FMLA leave for the birth or adoption of a child. The fourth post addressed issues related to an employee taking leave for his or a family member’s serious health condition. The next post in the FMLA series will address to care for a covered service member with a serious injury or illness.
Jennifer Fowler-Hermes
jfowler-hermes@williamsparker.com
941-552-2558