As a human resource executive, you've heard these words before. And if you're covered by the Family and Medical Leave Act, you undoubtedly listen to the request with a heightened awareness for whether the requested leave will be potentially FMLA-qualifying.
The Final Rule for the FMLA as amended by the National Defense Authorization Act, became effective January 16, 2009. The Rule provides additional explanation and examples for the new type of leave (covered servicemember leave) and new basis for leave (call to duty leave) available under the FMLA. The Rule also provides definitions for the "qualifying exigency" mentioned in the FMLA as amended.
The entire new Rule will be of interest to HR executives, and you are encouraged to talk with your counsel about how the Rule impacts your present practice and policy for FMLA leave. Of note for purposes of this entry, though, is the explanatory section in the Final Rule addressing "qualifying exigency" (where leave requested is for a call to duty).
Many of you have been trained to recognize the key words and situations where FMLA may be applicable. You will want to add the qualifying exigency situations to that knowledge bank, as situations which were previously chalked up to personal leave may now find themselves as FMLA-qualifying when the situation arises due to a call to duty of the employee's spouse, son, daughter or parent.
For example, the Final Rule discusses several scenarios of "military events and related activities" that now entitle an eligible employee to take call to duty leave. These include family support and informational briefings, to arrange and tend to childcare and school activities (including parent-teacher conferences), enrollment in a new school or day care, to attend counseling sessions with the covered servicemember, to make legal and financial arrangements in preparation for the servicemember's deployment, and to take time off when the covered servicemember is granted a brief leave from the deployment.
It is important to also note that the "qualifying exigency" section includes a catch-all provision allowing leave "[t]o address other events which arise out of the covered military member's active duty or call to active duty." This catch-all provision will only apply in situations where the employer and employee agree that the "other events" are related to the covered servicemember's call to duty/active duty and agree to the timing and duration of the leave.
A good rule of thumb is to always ask whether the employee who needs time off has a covered servicemember that is a spouse, parent or child. If that is the case, pick up the phone and talk with your attorney about whether the reason for the leave might be FMLA-qualifying.