FMLA Update: FMLA Qualified Exigency Military Leave Has Limits

By Christopher W. Olmsted

Question: One of our employees has a son who is an army recruit and he is about to complete basic training. There will be a ceremony which the employee would like to attend, but she would need to take two days off for work. Would this leave be protected under the FMLA?

Answer: Although the FMLA allows employees to take leave for a “qualifying exigency” arising out of certain military events, this graduation ceremony is not such an event.
It is a useful exercise to go through the analysis and determine why this is the case.

FMLA Military Leave

The federal Family and Medical Leave Act (FMLA) was amended effective January 28, 2008, when Congress amended the FMLA to extend coverage to employees to care for family members injured while on active military duty, and for time off to attend certain events.

Generally, the amendment permits employees to take up to 26 weeks of unpaid leave to care for a family member who is a member of the military injured in the line of duty. The amendment also permits employees to take up to 12 weeks of leave in the event of a “qualified exigency.” Generally, qualified exigencies are reasons for taking time off on account of the family member’s call to active duty.

In the case of the employee wishing to take time off to attend her son’s graduation ceremony, clearly this is not a case of injury, and so we would look more carefully at the definition of “qualified exigency” to see if time off for such an event might be covered.

What is Qualified Exigency?

The Department of Labor published regulations in 2009 which define “qualified exigency.” Eligibility depends (1) on the type of event at issue giving rise to the need for leave; and (2) the status of the military member. The listed events include:

(1) Short-notice deployments (seven or fewer days’ notice);

(2) Military events (e.g., ceremonies, briefings);

(3) Childcare/school (e.g., time making arrangements on account of the call to duty);

(4) Financial/legal arrangements related to the call to duty;

(5) Counseling related to the call to duty;

(6) R & R leave (up to five days);

(7) Post-deployment activities (e.g., arrival ceremonies, briefings);

(8) Additional activities if permitted by the employer.

Here is the second requirement: The qualifying exigency must arise out of the fact that the employee’s spouse, son, daughter, or parent is on (or has been notified of an impending call to) “covered active duty” in the Armed Forces.

What is “covered active duty”? “Covered active duty” for members of a regular component of the Armed Forces means duty during deployment of the member with the Armed Forces to a foreign country. “Covered active duty” for members of the reserve components of the Armed Forces (members of the U.S. National Guard and Reserves) means duty during deployment of the member with the Armed Forces to a foreign country under a call or order to active duty in a “contingency operation” as defined in section 101(a)(13)(B) of Title 10, United States Code. (The member’s order should specify a contingency operation.)

In the case of the employee wishing to take time off for her son’s graduation, she does not meet the requirements. Although the graduation seems to be a military ceremony (item two on the list), for a new member of the regular armed forces it does not appear to be related to a deployment to a foreign country.

Therefore the employee would not be protected by the FMLA for this leave. This does not mean, of course, that the employer cannot provide the leave in any case. Perhaps the employee has accrued paid time off under the company’s policies. Or perhaps the employer could grant unpaid time off. Perhaps the employer has a personnel policy which provides for such leaves even though not required by law.

In any event, should the employee request FMLA time off, the employer should immediately respond by letting the employee know, in writing, that such leave is not available under the law.

Reprinted with permission of Christopher W. Olmsted, Baker Olmsted & Barnier, APLC, San Diego, CA.

This article appears in the December 2010 issue