Fact Sheet #28M(c): Qualifying Exigency Leave under the Family and Medical Leave Act
The Family and Medical Leave Act (FMLA) provides workers with job-protected leave from work for family and medical reasons.
This fact sheet explains when workers may use leave for certain reasons, known as qualifying exigencies, when their spouse, child, or parent is on covered active duty or under an impending call to covered active duty.
ABOUT THE FMLA
The FMLA provides eligible employees of covered employers with job-protected leave for qualifying family and medical reasons and requires continuation of their group health benefits under the same conditions as if they had not taken leave. FMLA leave may be unpaid or used at the same time as employer-provided paid leave. Employees must be restored to the same or virtually identical position when they return to work after FMLA leave.
Eligible employees: Employees are eligible if they:
- Work for a covered employer for at least 12 months,
- Have at least 1,250 hours of service with the employer during the 12 months before their FMLA leave starts, and
- Work at a location where the employer has at least 50 employees within 75 miles.
Covered employers: Covered employers under the FMLA include:
- Private-sector employers who employ 50 or more employees in 20 or more workweeks in either the current calendar year or the previous calendar year,
- Public agencies, including Federal, State, and local government employers, regardless of the number of employees, and
- Local educational agencies, including public school boards, public elementary and secondary schools, and private elementary and secondary schools, regardless of the number of employees.
The FMLA protects leave for:
- The birth of a child or placement of a child with the employee for adoption or foster care,
- The care for a child, spouse, or parent who has a serious health condition,
- A serious health condition that makes the employee unable to work, and
- Reasons related to a family member’s service in the military, including:
- Qualifying exigency leave – leave for certain reasons related to a family member’s foreign deployment, and
- Military caregiver leave – leave when a family member is a current servicemember or recent veteran with a serious injury or illness.
For more information about the FMLA generally, see Fact Sheet #28.
QUALIFYING EXIGENCY LEAVE ENTITLEMENTS
Qualifying exigencies may arise when an employee’s spouse, child, or parent is a member of the Armed Forces, including the National Guard and Reserves. For purposes of qualifying exigency leave, an employee’s child refers to a child of any age.
COVERED ACTIVE DUTY
Eligible employees may take FMLA leave for a qualifying exigency when the military member is on covered active duty, including when the military member is called to covered active duty status, or has been notified of an impending call or order to covered active duty:
- For members of the Regular Armed Forces, covered active duty is duty during deployment of the member with the Armed Forces to a foreign country.
- For members of the National Guard and Reserves covered active duty is 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.
Deployment to a foreign country means deployment to areas outside of the United States, the District of Columbia, or any Territory or possession of the United States. It also includes deployment to international waters.
QUALIFYING EXIGENCY CATEGORIES
When a military family member is on covered active duty, an eligible employee of a covered employer may take FMLA leave for the following qualifying exigencies.
Short-notice deployment – When an employee’s military family member is notified of a deployment in seven or fewer calendar days before the date of deployment, the employee may use leave for any issue that arises from the short-notice deployment.
An employee may take qualifying exigency leave for short-notice deployment for up to seven days from the day the military member receives the notice of deployment.
Military events and related activities – Attending military events and related activities, such as official ceremonies, programs, events and informational briefings, or family support or assistance programs sponsored by the military, military service organizations, or the American Red Cross, that are related to the member’s deployment.
Childcare and related activities – Certain childcare and related activities arising from the military member’s covered active duty, including arranging for alternative childcare; providing childcare on a non-routine, urgent, immediate need basis; and enrolling in or transferring a child to a new school or day care facility.
The employee does not need to be related to the military member’s child. However, the military member must be the parent, spouse, or child of the employee taking FMLA leave, and the child must be the child of the military member, including a child to whom the military member stands in loco parentis, or in the role of a parent.
Care of the military member’s parent – Certain activities arising from the military member’s covered active duty related to care of the military member’s parent who is incapable of self-care.
Activities may include arranging for alternative care; providing care on a non-routine, urgent, immediate need basis; admitting or transferring a parent to a new care facility; and attending certain meetings with staff at a care facility, such as meetings with hospice or social service providers.
The employee does not need to be related to the military member’s parent. However, the military member must be the parent, spouse, son or daughter of the employee taking FMLA leave, and the parent must be the parent of the military member, including an individual who stood in loco parentis, or in the role of a parent to the military member when the member was a child.
Financial and legal arrangements – Making or updating financial and legal arrangements to address a military member’s absence while on covered active duty. Examples include preparing and executing financial and healthcare powers of attorney, enrolling in the Defense Enrollment Eligibility Reporting System (DEERS), or obtaining military identification cards.
Attending counseling - Attending counseling for the employee, the military member, or the child of the military member when the need for that counseling arises from the covered active duty of the military member and is provided by someone other than a health care provider.
Rest and recuperation - Taking up to 15 calendar days of leave to spend time with a military member who is on short-term, temporary rest and recuperation leave during deployment. The employee’s leave for this reason must be taken while the military member is on rest and recuperation leave.
Post-deployment activities - Certain post-deployment activities within 90 days of the end of the military member’s covered active duty. Examples include attending arrival ceremonies, reintegration briefings and events, and other official ceremonies or programs sponsored by the military. Post-deployment activities also include addressing issues arising from the death of a military member, including attending the funeral.
Other events - Any other event that the employee and employer agree is a qualifying exigency.
Daron is a member of the Armed Forces and is deploying on covered active duty. His mother Jaelyn is an eligible employee and may take FMLA leave to deal with any qualifying exigency arising from this deployment.
Daron is a foster parent to Stacia. There is no legal or biological relationship between Jaelyn and Stacia. Jaelyn may take FMLA leave to enroll Stacia in a new school district near Jaelyn’s home and to arrange childcare for Stacia.
An employee may need to provide appropriate certification to support their request for qualifying exigency leave. The certification may require:
- A copy of the military member’s active-duty orders – The employee only needs to provide this information to the employer once for a military member on a specific deployment. An employer also may contact the Department of Defense to verify a military member’s covered active-duty status.
- Appropriate facts related to the qualifying exigency – For example, if the employee is using leave to meet with an alternate childcare provider or a financial consultant, the employee may need to provide the contact information of the third party with whom the employee is meeting. The third party may be contacted to confirm that the meeting is taking place and the nature of the meeting, but the employer may not request additional information.
- A copy of the military member’s rest and recuperation orders – When an employee takes qualifying exigency leave to spend time with a military member on rest and recuperation leave, the employer can request a copy of the orders or other documentation confirming the dates of the military member’s leave.
Employees may use form WH-384 for providing a certification for qualifying exigency leave. The employer may not require second and third opinions or recertification for qualifying exigency leave.
For more information about using FMLA leave because of a family member’s military service generally, see Fact Sheet #28M.
Some States have their own family and medical leave laws. Nothing in the FMLA prevents employees from receiving protections under other laws. Workers have the right to benefit from all the laws that apply.
Protection from Retaliation
The FMLA is a federal worker protection law. Employers are prohibited from interfering with, restraining, or denying the exercise of, or the attempt to exercise, any FMLA right. Any violations of the FMLA or the FMLA regulations constitute interfering with, restraining, or denying the exercise of rights provided by the FMLA. For more information about prohibited employer retaliation under the FMLA, see Fact Sheet #77B and Field Assistance Bulletin 2022-2.
The Wage and Hour Division is responsible for administering and enforcing the FMLA for most employees. If you believe that your rights under the FMLA have been violated, you may file a complaint with the Wage and Hour Division or file a private lawsuit against your employer in court. State employees may be subject to certain limitations in pursuit of direct lawsuits regarding leave for their own serious health conditions. Most Federal and certain congressional employees are also covered by the law but are subject to the jurisdiction of the U.S. Office of Personnel Management or Congress.
Where to Obtain Additional Information
For additional information, visit our Wage and Hour Division Website: http://www.dol.gov/agencies/whd and/or call our toll-free information and helpline, available 8 a.m. to 5 p.m. in your time zone, 1-866-4USWAGE (1-866-487-9243).
This publication is for general information and is not to be considered in the same light as official statements of position contained in the regulations.