Robert P. Tinnin, Jr. and Glenn A. Beard, Editors
Tinnin Law Firm, A Professional Corporation

Vol. 14, No. 6
June 2008

QUESTION CORNER

What is a 'qualifying exigency' under the FMLA?

Robert P. Tinnin, Jr.

Q In January of this year, amendments to the Family and Medical Leave Act (FMLA) became effective, adding certain types of leave for family members to help relatives serving in the military. I understand the leave is available for a "qualifying exigency." What is that? I recently had an employee ask if he could take FMLA leave to greet his son who is returning from a tour of duty in the Middle East. Does that qualify?

A Congress had its heart in the right place when it amended the FMLA to provide two new types of leave for family members of military personnel. "Active duty family leave" allows family members to assist those who are on active duty, while "injured service member leave" allows them to care for their injured military family member. However, in its haste, Congress left a number of matters open, leaving the secretary of labor to address those issues and the new regulations. Nevertheless, the amendments became effective immediately because Congress failed to postpone the effective date to give the secretary of labor a chance to adopt regulations, so we're all in the same boat of figuring out what we need to do to comply.

Active duty family leave

The amendment allows employees up to 12 weeks of leave per year for any "qualifying exigency" arising from the fact that a spouse, parent, or child is on or has been called to active duty. The U.S. Department of Labor (DOL) says the provision won't be effective until regulations are adopted defining "qualifying exigency."

In the proposed amendments, the DOL provides some indication of what may be a "qualifying exigency." It states that active duty family leave generally isn't intended for medical reasons, which would qualify under other provisions of the FMLA. However, it emphasizes that there must be some sort of connection between the need to engage in activities on behalf of the service member and his service in the armed forces.

The department has also indicated that "qualifying exigency" may include things such as making arrangements for childcare, making financial and legal arrangements, attending counseling relating to the active duty of the service member, or attending to farewell or arrival arrangements for the service member. Thus, the request by your employee to use FMLA leave to travel to greet his son who is returning from active duty in the Middle East would probably qualify.

Injured service member leave

The amendments also allow leave for a spouse, child, parent, or "next of kin" to provide care for a covered service member. A qualifying employee can take up to 26 weeks of leave ― including traditional FMLA leave and active duty family leave ― in a 12-month period to care for an injured service member.

The statute defines "next of kin" as "the nearest blood relative of that individual." Can there be more than one next of kin? What determines next of kin? Those questions will have to be answered in the regulations. The Act does define "son or daughter" as a child who is under 18 years of age or who is 18 years of age or older and incapable of self-care because of a mental or physical disability. Clearly, the definition doesn't work in the case of leave to care for a son or daughter who is injured on active duty. Most members of the armed forces are over 18 years of age and capable of caring for themselves.

Bottom line

The military leave provisions of the FMLA amendments are now in effect, but until we receive clear direction from the DOL, we can only do our best to comply. The "qualifying exigency" issue is probably the most difficult issue to address in the meantime. For now, the best course of action is to err in favor of the employee. In other words, if an employee asks for leave that's in some way connected to assisting a family member in the military, it's best to simply grant the leave. Hopefully, we'll have more definitive answers through regulations adopted before the end of the year.

"Question Corner" is a regular monthly feature of New Mexico Employment Law Letter. Submit any questions you want the editors to address to rtinnin@tinninlawfirm.com.

Copyright 2008 M. Lee Smith Publishers LLC

NEW MEXICO EMPLOYMENT LAW LETTER is published to provide information of general interest and not to provide legal advice regarding any specific situation. Questions and inquiries directed to specific applications of the information contained in the newsletter should be addressed to an attorney.