What Exigent Circumstances Qualify For Family Leave?
A relatively new category of "family leave" for purposes of the FMLA is leave for "qualifying exigencies".
This category of family leave differs from the other family leave categories in a number of ways. It focuses on allowing family members to help assist when a spouse, son, daughter, or parent is on "active duty or call to active duty" status or just returning from active duty, or deployed or called to deployment to a foreign country.
Eligible employees may take FMLA leave for certain purposes (i.e., qualifying exigencies) related to a covered military member. For this purpose, a "covered military member" is the employee's spouse, son, daughter, or parent on active duty or call to active duty status, or, in the case of a regular Armed Services member, deployed or called to deployment to a foreign country.
"Active duty or call to active duty status" means duty under a call or order to active duty (or notification of an impending call or order to active duty). The deployment must be to a foreign country, including to international waters.
Circumstances that constitute qualifying exigencies include the following:
- Short-Notice Deployment
FMLA leave is available for a period of up to seven calendar days beginning on the date a covered military member is notified of an impending call or order to active duty or deployment to a foreign country in support of a contingency operation, if the call or order is received, seven days or less prior to the date of deployment. The FMLA leave is available to address any issue that arises from the short-notice of deployment
- Military Events and Related Activities
FMLA leave is available to attend any official ceremony, program, or event sponsored by the military related to the active duty or call to active duty status of the covered military member, or in the case of a member of the regular Armed Forces, deployment or call to deployment to a foreign country. It is also available 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 active duty or call to active duty status of the covered military member, or in the case of a member of the regular Armed Forces, deployment or call to deployment to a foreign country
- Childcare and School Activities
FMLA leave is available to arrange for alternative childcare, to provide childcare on an urgent and immediate basis, to enroll in or transfer to a new school or daycare facility, to attend meetings with staff at a school or daycare facility, and where the need for such activities are due to circumstances arising from the active duty or call to active duty status of the covered military member, or in the case of a member of the regular Armed Forces deployment or call to deployment to a foreign country.
The child in question could be "the military member's biological, adopted, or foster child, stepchild, legal ward, or child for whom the 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 that FMLA leave is to commence." The child for whom child care leave is sought need not be the child of the employee requesting leave.
The Department of Labor specifically declined to extend qualifying exigency leave to employees who stand in loco parentis to a child of a military member when that employee does not have the statutorily required relationship with the military member for that leave. For example, while the mother of a military member may take leave to care for the military member's child, the military member's mother-in-law is not qualified for such leave, regardless of her relationship with the child, because the military member is not the spouse/son/daughter/parent of the employee requesting leave
- Financial and Legal Arrangements
FMLA leave is available to make or update financial or legal arrangements to address the military member's absence while on active duty or call to active duty status, or in the case of a member of the regular Armed Forces deployment or call to deployment to a foreign country. These arrangements can include, for instance, making a will or obtaining military identification cards
- Counseling
FMLA leave is available to attend counseling provided by other than a health care provider for the employee, covered military member, and covered military member's children, where the need for such activities are due to circumstances arising from the active duty or call to active duty status of the covered military member, or in the case of a member of the regular Armed Forces deployment or call to deployment to a foreign country
- Rest and Recuperation
FMLA leave is available to spend time with the covered military member who is on short-term, temporary, rest and recuperation leave during the period of deployment. A maximum of 15 days is allowed, but the actual amount of leave provided to the employee should be consistent with the leave provided by the military to the member on covered duty. For example, if the military allows a member 10 days of rest and recuperation leave, the employee is entitled to 10 days. The leave may be taken intermittently, or in a single block, as long as the leave is taken during the period of time indicated on the military member's rest and recuperation orders
- Post-Deployment Activities
FMLA leave is available to attend post-deployment activities including arrival ceremonies, reintegration briefings and events, and any other official ceremony or program sponsored by the military during the 90-day period following the termination of the covered military member's active duty status or return from deployment in a foreign country. This type of leave is also available to address issues related to the death of a covered military member (e.g., meeting and recovering the body, making funeral arrangements, etc.)
- Additional Activities
Upon agreement between the employee and the employer, FMLA leave is available to address other events which arise out of the covered military member's active duty status, or in the case of a member of the regular Armed Forces deployment to a foreign country.
- Parental Care
The 2013 Department of Labor regulations added parental care as a qualifying exigency for which leave may be taken. This provision allows parental care exigency leave for the spouse, parent, son, or daughter of a military member in order to do the following:
- Arrange for alternative care for a parent of the military member when the parent is incapable of self-care and the covered active duty or call to covered active duty status of the military member necessitates a change in the existing care arrangement
- Provide care for a parent of the military member on an urgent, immediate-need basis (but not on a routine, regular, or everyday basis) when the parent is incapable of self-care and the need to provide for such care arises from the covered active duty or call to covered active duty status of the military member
- Admit or transfer a parent of the military member to a care facility when the admittance or transfer is necessitated by the covered active duty or call to covered active duty status of the military member
- Attend meetings with staff at a care facility for a parent of the military member (e.g., meetings with hospice or social service providers) when such meetings are necessitated by the covered active duty or call to covered active duty status of the military member
- The military member's parent must be incapable of self-care, which is defined as requiring active assistance or supervision to provide daily self-care in three or more "activities of daily living" (e.g., grooming, dressing, and eating) or "instrumental activities of daily living" (e.g., cooking, cleaning, and paying bills).
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