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Content Last Revised: 11/17/2008 |
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Code of Federal Regulations Pertaining to ESA |
| Labor |
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| Wage and Hour Division, Department of Labor |
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| The Family and Medical Leave Act of 1993 |
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| Coverage Under the Family and Medical Leave Act |
29 CFR 825.126 - Leave because of a qualifying exigency.
- Section Number: 825.126
- Section Name: Leave because of a qualifying exigency.
(a) Eligible employees may take FMLA leave while the employee's
spouse, son, daughter, or parent (the "covered military member") is
on active duty or call to active duty status as defined in Sec.
825.126(b)(2) for one or more of the following qualifying exigencies:
(1) Short-notice deployment.
(i) To address any issue that arises from the fact that a covered
military member is notified of an impending call or order to active
duty in support of a contingency operation seven or less calendar days
prior to the date of deployment;
(ii) Leave taken for this purpose can be used for a period of seven
calendar days beginning on the date a covered military member is
notified of an impending call or order to active duty in support of a
contingency operation;
(2) Military events and related activities.
(i) To attend any official ceremony, program, or event sponsored by
the military that is related to the active duty or call to active duty
status of a covered military member; and
(ii) 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 a covered military
member;
(3) Childcare and school activities.
(i) To arrange for alternative childcare when the active duty or
call to active duty status of a covered military member necessitates a
change in the existing childcare arrangement for 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
that FMLA leave is to commence;
(ii) To provide childcare on an urgent, immediate need basis (but
not on a routine, regular, or everyday basis) when the need to provide
such care arises from the active duty or call to active duty status of
a covered military member for 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 that FMLA leave is to
commence;
(iii) To enroll in or transfer to a new school or day care facility
a biological, adopted, or foster child, a stepchild, or a legal ward of
the covered military member, or a child for whom the 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 that FMLA leave is to commence, when enrollment
or transfer is necessitated by the active duty or call to active duty
status of a covered military member; and
(iv) To attend meetings with staff at a school or a daycare
facility, such as meetings with school officials regarding disciplinary
measures, parent-teacher conferences, or meetings with school
counselors, for a biological, adopted, or foster child, a stepchild, or
a legal ward of the covered military member, or a child for whom the
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 that FMLA leave is to
commence, when such meetings are necessary due to circumstances arising
from the active duty or call to active duty status of a covered
military member;
(4) Financial and legal arrangements.
(i) To make or update financial or legal arrangements to address
the covered military member's absence while on active duty or call to
active duty status, such as preparing and executing financial and
healthcare powers of attorney, transferring bank account signature
authority, enrolling in the Defense Enrollment Eligibility Reporting
System (DEERS), obtaining military identification cards, or preparing
or updating a will or living trust; and
(ii) To act as the covered military member's representative before
a federal, state, or local agency for purposes of obtaining, arranging,
or appealing military service benefits while the covered military
member is on active duty or call to active duty status, and for a
period of 90 days following the termination of the covered military
member's active duty status;
(5) Counseling. To attend counseling provided by someone other than
a health care provider for oneself, for the covered military member, or
for the biological, adopted, or foster child, a stepchild, or a legal
ward of the covered military member, or a child for whom the 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 that FMLA leave is to commence,
provided that the need for counseling arises from the active duty or
call to active duty status of a covered military member;
(6) Rest and recuperation.
(i) To spend time with a covered military member who is on short-
term, temporary, rest and recuperation leave during the period of
deployment;
(ii) Eligible employees may take up to five days of leave for each
instance of rest and recuperation;
(7) Post-deployment activities.
(i) To attend arrival ceremonies, reintegration briefings and
events, and any other official ceremony or program sponsored by the
military for a period of 90 days following the termination of the
covered military member's active duty status; and
(ii) To address issues that arise from the death of a covered
military member while on active duty status, such as meeting and
recovering the body of the covered military member and making funeral
arrangements;
(8) Additional activities. To address other events which arise out
of the covered military member's active duty or call to active duty
status provided that the employer and employee agree that such leave
shall qualify as an exigency, and agree to both the timing and duration
of such leave.
(b) A "covered military member" means the employee's spouse, son,
daughter, or parent on active duty or call to active duty status.
(1) A "son or daughter on active duty or call to 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 active duty or call to active duty status, and who
is of any age.
(2) "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) in support of a contingency operation pursuant
to: Section 688 of Title 10 of the United States Code, which authorizes
ordering to active duty retired members of the Regular Armed Forces and
members of the retired Reserve who retired after completing at least 20
years of active service; Section 12301(a) of Title 10 of the United
States Code, which authorizes ordering all reserve component members to
active duty in the case of war or national emergency; Section 12302 of
Title 10 of the United States Code, which authorizes ordering any unit
or unassigned member of the Ready Reserve to active duty; Section 12304
of Title 10 of the United States Code, which authorizes ordering any
unit or unassigned member of the Selected Reserve and certain members
of the Individual Ready Reserve to active duty; Section 12305 of Title
10 of the United States Code, which authorizes the suspension of
promotion, retirement or separation rules for certain Reserve
components; Section 12406 of Title 10 of the United States Code, which
authorizes calling the National Guard into federal service in certain
circumstances; chapter 15 of Title 10 of the United States Code, which
authorizes calling the National Guard and state military into federal
service in the case of insurrections and national emergencies; or any
other provision of law during a war or during a national emergency
declared by the President or Congress so long as it is in support of a
contingency operation.
(i) Employees are eligible to take FMLA leave because of a
qualifying exigency when the covered military member is on active duty
or call to active duty status in support of a contingency operation
pursuant to one of the provisions of law identified in paragraph (b)(2)
of this section as either a member of the reserve components (Army
National Guard of the United States, Army Reserve, Navy Reserve, Marine
Corps Reserve, Air National Guard of the United States, Air Force
Reserve and Coast Guard Reserve), or a retired member of the Regular
Armed Forces or Reserve. An employee whose family member is on active
duty or call to active duty status in support of a contingency
operation as a member of the Regular Armed Forces is not eligible to
take leave because of a qualifying exigency.
(ii) A call to active duty for purposes of leave taken because of a
qualifying exigency refers to a Federal call to active duty. State
calls to active duty are not covered unless under order of the
President of the United States pursuant to one of the provisions of law
identified in paragraph (b)(2) of this section in support of a
contingency operation.
(3) The active duty orders of a covered military member will
generally specify if the servicemember is serving in support of a
contingency operation by citation to the relevant section of Title 10
of the United States Code and/or by reference to the specific name of
the contingency operation. A military operation qualifies as a
contingency operation if it:
(i) is designated by the Secretary of Defense as an operation in
which members of the armed forces are or may become involved in
military actions, operations, or hostilities against an enemy of the
United States or against an opposing military force; or
(ii) results in the call or order to, or retention on, active duty
of members of the uniformed services under section 688, 12301(a),
12302, 12304, 12305, or 12406 of Title 10 of the United States Code,
chapter 15 of Title 10 of the United States Code, or any other
provision of law during a war or during a national emergency declared
by the President or Congress. 10 U.S.C. 101(a)(13).
[73 FR 68083, Nov. 17, 2008]
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