This section of the FEDERAL REGISTER

contains notices to the public of the proposed

issuance of rules and regulations. The

purpose of these notices is to give interested

persons an opportunity to participate in the

rule making prior to the adoption of the final

rules.

Proposed Rules Federal Register

70845 

Vol. 75, No. 223 

Friday, November 19, 2010 

OFFICE OF PERSONNEL 

MANAGEMENT 

5 CFR Part 630 

RIN 3206–AM11 

Absence and Leave; Qualifying 

Exigency Leave 

AGENCY: U.S. Office of Personnel 

Management. 

ACTION: Proposed rule. 

SUMMARY: The U.S. Office of Personnel 

Management is issuing proposed 

regulations to implement an amendment 

to the Family and Medical Leave Act 

(FMLA) that creates an additional 

qualifying reason for leave. Under this 

amendment, eligible Federal employees 

may take up to 12 administrative 

workweeks of FMLA leave without pay 

due to a qualifying exigency. Qualifying 

exigencies arise out of the fact that a 

covered family member is on covered 

active duty in the Armed Forces or has 

been notified of an impending call or 

order to covered active duty status. 

These regulations would help 

employees manage family affairs when 

a family member is on covered active 

duty. 

DATES: Comments must be received on 

or before January 18, 2011. 

ADDRESSES: You may submit comments, 

identified by RIN number ‘‘3206–AM11’’ 

using either of the following methods: 

Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the 

instructions for submitting comments. 

All submissions received through the 

Portal must include the agency name 

and docket number or Regulation 

Identifier Number (RIN) for this 

rulemaking. 

Mail: Jerome D. Mikowicz, Deputy 

Associate Director, Pay and Leave, U.S. 

Office of Personnel Management, Room 

7H31, 1900 E Street, NW., Washington, 

DC 20415–8200. 

FOR FURTHER INFORMATION CONTACT: 

Doris Rippey by telephone at (202) 606– 

2858; by fax at (202) 606–0824; or by email at pay-performancepolicy@opm.gov. 

SUPPLEMENTARY INFORMATION: The U.S. 

Office of Personnel Management (OPM) 

is issuing proposed regulations to 

implement section 565(b)(1) of the 

National Defense Authorization Act 

(NDAA) for Fiscal Year (FY) 2010 (Pub. 

L. 111–84, October 28, 2009). Section 

565(b)(1) amended 5 U.S.C. 6382(a)(1) 

by inserting a new subparagraph (E) that 

adds qualifying exigencies to the 

circumstances or events that entitle 

Federal employees to up to 12 

administrative workweeks of Family 

and Medical Leave Act (FMLA) unpaid 

leave during any 12-month period. The 

proposed regulations would amend 

OPM’s current regulations at part 630, 

subpart L, to cover qualifying exigencies 

when the spouse, son, daughter, or 

parent of the employee is on covered 

active duty in the Armed Forces or has 

been notified of an impending call or 

order to covered active duty. OPM 

proposes eight categories of qualifying 

exigencies: short-notice deployments, 

military events and related activities, 

childcare and school activities, financial 

and legal arrangements, counseling, rest 

and recuperation, post-deployment 

activities, and additional activities not 

encompassed in the other categories 

when the agency and employee agree 

they qualify as exigencies, including the 

timing and duration of the leave. 

Background 

The FMLA is divided into two titles 

that are governed by two different 

agencies; the Department of Labor (DOL) 

is responsible for the rules and 

regulations for title I of the FMLA 

(mostly the non-Federal sector), and 

OPM is responsible for the rules and 

regulations for title II of the FMLA 

(mostly Federal employees). Under title 

II of the FMLA (5 U.S.C. 6387), OPM is 

required to prescribe regulations that are 

consistent, to the extent appropriate, 

with regulations prescribed by the 

Secretary of Labor to carry out title I of 

the FMLA. 

FY 2008 NDAA. Section 585 of the 

National Defense Authorization Act 

(NDAA) for Fiscal Year (FY) 2008 (Pub. 

L. 110–181, January 28, 2008) amended 

the FMLA provisions for both title I and 

title II of the FMLA to provide a specific 

military family leave entitlement 

(referred to by OPM as ‘‘leave to care for 

a covered servicemember’’) for an 

employee who (1) is the spouse, son, 

daughter, parent, or next of kin (defined 

as the nearest blood relative) of a 

covered servicemember with a serious 

injury or illness, and (2) provides care 

for such servicemember. The legislation 

provided 26 weeks of FMLA leave 

during a single 12-month period to care 

for a servicemember who was injured in 

the line of duty while on active duty. 

The legislation also provided a second 

military family leave entitlement— 

qualifying exigency leave—to title I 

employees, but remained silent on this 

entitlement for title II employees. 

Therefore, Federal employees were not 

provided the authority to use qualifying 

exigency leave in the FY 2008 NDAA 

legislation. 

DOL issued its final regulations on 

November 17, 2008, (73 FR 67934) to 

implement the military family leave 

entitlements in the FY 2008 NDAA, as 

well as other changes that were part of 

a systemwide review of DOL’s FMLA 

regulations. Following DOL’s issuance 

of these regulations, OPM issued 

proposed FMLA regulations on August 

26, 2009, (74 FR 43064, at http:// 

edocket.access.gpo.gov/2009/pdf/E9- 

20610.pdf) concerning care for a 

covered servicemember. 

FY 2010 NDAA. Before OPM could 

issue its final FMLA regulations 

implementing leave to care for a covered 

servicemember, section 565(b) of the FY 

2010 NDAA made further changes to the 

FMLA. In summary, the FY 2010 NDAA 

amendments (1) provide a new 

entitlement to qualifying exigency leave 

for Federal employees covered by 

OPM’s FMLA regulations parallel to the 

entitlement provided to employees 

covered by DOL’s FMLA regulations, 

and (2) expand the coverage for the 26- 

week entitlement for family members to 

care for a covered servicemember 

undergoing medical treatment, 

recuperation, or therapy, for a serious 

injury or illness by amending the 

definitions of covered servicemember 

and serious injury or illness. These 

changes have a broad impact on the 26- 

week entitlement that requires changes 

to DOL’s final FMLA regulations and 

OPM’s proposed FMLA regulations. 

OPM must wait for DOL to implement 

proposed and final regulations on the 

expanded FMLA coverage provisions 

before we can implement corresponding 

regulations for the Federal Government. 

However, the FY 2010 NDAA did not 


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70846 Federal Register / Vol. 75, No. 223 / Friday, November 19, 2010 / Proposed Rules 

alter the qualifying exigency portion of 

the FY 2008 NDAA for employees 

covered by title I of DOL’s regulations. 

Therefore, it is possible for OPM to 

issue proposed regulations 

implementing the qualifying exigency 

portion of the FY 2010 NDAA without 

having to wait for any further action on 

the part of DOL. 

The military family leave 

amendments to the FY 2010 NDAA 

were effective upon enactment (October 

28, 2009). Until OPM issues final 

regulations, agencies should follow 

OPM’s guidance in CPM 2010–06 on 

March 5, 2010, at http://www.chcoc.gov/ 

Transmittals/TransmittalDetails.aspx

?TransmittalId=2884. 

DOL Regulations on Qualifying 

Exigency Leave 

The DOL regulations implementing 

title I of the FMLA are set out at 29 CFR 

part 825. The DOL provisions regarding 

qualifying exigency leave are prescribed 

at §§ 825.100, 825.101, 825.112, 

825.126, 825.127, 825.200, 825.202, 

825.203, 825.300, 825.302, 825.303, 

825.305, 825.309, and 825.313. 

Supplementary information on the DOL 

regulations regarding qualifying 

exigency leave may be found in the DOL 

proposed regulations published on 

February 11, 2008, at 73 FR 7876 (http: 

//edocket.access.gpo.gov/2008/pdf/E8- 

2062.pdf), and final regulations 

published on November 17, 2008, at 73 

FR 67934 (http:// 

edocket.access.gpo.gov/2008/pdf/E8- 

26577.pdf). (See in particular § 825.126 

(Leave Because of a Qualifying 

Exigency) at 73 FR 67954.) To the extent 

appropriate, OPM is adopting the 

qualifying exigency portion of the DOL 

regulations to apply to the Federal 

workforce. 

Exception to DOL Regulations 

OPM’s proposed regulations on 

qualifying exigency leave are parallel to 

DOL’s final FMLA regulations with only 

minor adaptations to make them 

applicable to Federal employees. The 

one exception stems from a change to 

5 U.S.C. 6381 made by the FY 2010 

NDAA, which has not yet been 

incorporated into DOL’s FMLA 

regulations. This change removes the 

definition of active duty from the statute 

and adds a definition of covered active 

duty. The new definition now covers 

duty of a servicemember who is 

deployed to a foreign country in either 

a regular component or a reserve 

component of the Armed Forces. (The 

previous definition covered only 

members of reserve components.) 

OPM’s proposed regulations 

published on August 26, 2009, at 74 FR 

43064, included a definition of active 

duty that was derived from DOL’s 

definition based on the FY 2008 NDAA 

statutory definition. Because the FY 

2010 NDAA replaced the definition of 

active duty with covered active duty and 

this term is relevant to the qualifying 

exigency entitlement, we are proposing 

to add covered active duty to the 

definitions at 5 CFR 630.1202. 

Additions to the FMLA Definitions 

In § 630.1202, we propose to add new 

definitions to our existing FMLA 

regulations for covered active duty or 

call to covered active duty status, 

covered military member, and son or 

daughter on covered active duty or call 

to covered active duty status. 

The definitions of son or daughter on 

covered active duty or call to covered 

active duty status and covered active 

duty or call to covered active duty status 

mostly parallel the DOL regulations at 

29 CFR 825.126. The new definitions 

reflect the changes authorized in the FY 

2010 NDAA that provide additional 

benefits to employees covered under 

both title I and title II. In summary, the 

coverage changed to add members of a 

regular component of the Armed Forces 

on active duty or call to active duty 

when deployed to a foreign country and 

members of reserve components on 

active duty or call to active duty during 

deployment to a foreign country in 

support of a contingency operation. 

Amendment to FMLA Leave 

Entitlement 

Section 565(b) of the FY 2010 NDAA 

amended the FMLA provisions at 5 

U.S.C. 6382(a)(1) by adding new 

subparagraph (E) to provide Federal 

employees with an entitlement of up to 

12 administrative workweeks of unpaid 

FMLA leave during any 12-month 

period for any qualifying exigency 

arising out of the fact that the spouse or 

a son, daughter, or parent of the 

employee is on covered active duty (or 

has been notified of an impending call 

or order to covered active duty) in the 

Armed Forces. 

Therefore, we propose to amend our 

regulations at § 630.1203(a) to add a 

new paragraph (5) that includes a 

qualifying exigency among the list of 

reasons for which an employee is 

entitled to a total of 12 administrative 

workweeks of unpaid leave during any 

12-month period. 

New Section To Cover Qualifying 

Exigency Leave 

We are adding a new § 630.1204, 

which is similar to a new section added 

to the DOL regulations at 29 CFR 

825.126. Proposed § 630.1204(a) lists the 

qualifying exigencies for which eligible 

Federal employees may take up to 12 

administrative workweeks of unpaid 

FMLA leave during a 12-month period. 

The qualifying exigencies fall under 

eight categories: 

Short-notice deployment. Employees 

may take qualifying exigency leave to 

address any issue that arises when a 

covered military member receives notice 

of an impending call or order to active 

duty for 7 calendar days or fewer prior 

to the date of deployment. Up to 7 

calendar days of leave may be taken 

beginning on the date the member 

receives the notice of a call or order to 

active duty. 

Military events and related activities. 

Employees may take qualifying exigency 

leave to attend certain official 

ceremonies, programs, or events 

sponsored by the military, as well as 

family support and assistance programs 

and informational briefings sponsored 

or promoted by the military, military 

service organizations, or the American 

Red Cross. These events and activities 

must be related to the covered active 

duty or call to covered active duty status 

of a covered military member. 

Childcare and school activities. 

Employees may take qualifying exigency 

leave when the covered active duty or 

call to covered active duty status of a 

covered military member makes it 

necessary for the employee to arrange 

for alternative childcare; provide 

childcare on an urgent, immediate need 

basis; enroll or transfer a child to a new 

school or daycare facility; or attend 

meetings with school or daycare 

officials regarding disciplinary 

measures, parent-teacher conferences, or 

meetings with school counselors. The 

child must be 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. 

Financial and legal arrangements. 

Employees may take qualifying exigency 

leave for financial or legal matters 

related to the covered military member’s 

absence while on covered active duty or 

call to covered active duty status. Under 

this category, leave may be taken to 

prepare and execute financial and 

healthcare powers of attorney, transfer 

bank account signature authority, enroll 

in the Defense Enrollment Eligibility 

Reporting System, obtain military 

identification cards, prepare or update a 

will or living trust, or for other financial 

and legal arrangements related to the 

covered military member’s absence. 


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Employees may also take leave under 

this category 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 

covered active duty or call to covered 

active duty status or within 90 days 

following the date of termination of 

covered active duty status. 

Counseling. Employees may take 

qualifying exigency leave for counseling 

by someone other than a healthcare 

provider, provided that the need for 

counseling arises from the covered 

active duty or call to covered active 

duty status of a covered military 

member. This counseling may be for the 

employee, the covered military member, 

or a child (as previously described 

under ‘‘Childcare and school activities’’). 

Rest and recuperation. Employees 

may take up to 5 days of qualifying 

exigency leave to spend time with a 

covered military member for each 

instance of short-term rest and 

recuperation leave during the period of 

deployment. 

Post-deployment activities. 

Employees may take qualifying exigency 

leave to attend arrival ceremonies, 

reintegration briefings and events, and 

any other official ceremonies or 

programs sponsored by the military for 

a period of 90 days following the 

termination of the covered military 

member’s covered active duty. 

Employees may also take leave under 

this category to address issues that arise 

from the death of a covered military 

member while on covered active duty 

status, such as making funeral 

arrangements. 

Additional activities. Employees may 

take qualifying exigency leave to 

address other events that arise from the 

covered military member’s covered 

active duty or call to covered active 

duty status if both the agency and 

employee agree the leave qualifies as an 

exigency and agree to the timing and 

duration of the leave. 

Additional Changes to FMLA 

Regulations for Qualifying Exigency 

Leave 

The proposed regulations make the 

following additional changes to the 

FMLA provisions in subpart L of 5 CFR 

part 630 to implement other FY 2010 

NDAA amendments regarding use of 

qualifying exigency leave and to 

conform to DOL regulations: 

Intermittent or reduced leave 

schedule. The proposed regulations 

revise § 630.1205(b) (formerly 

§ 630.1204(b)) to clarify that employees 

may take qualifying exigency leave 

intermittently or on a reduced leave 

schedule basis, subject to the 

notification requirements in § 630.1207 

(formerly § 630.1206) and the 

certification requirements in new 

§ 630.1209. 

Notice of leave. The proposed 

regulations add a new paragraph (c) to 

§ 630.1207 (formerly § 630.1206) that 

requires an employee to notify his or her 

agency of future qualifying exigency 

leave needs, when foreseeable. The 

employee must provide notice as soon 

as practicable, regardless of how far in 

advance the leave is foreseeable. 

Certification. The proposed 

regulations add a new § 630.1209, 

‘‘Certification for leave taken because of 

a qualifying exigency.’’ This section 

permits agencies to (1) require 

employees to provide documentation of 

the family member’s covered active duty 

status, (2) require certification of 

qualifying exigency leave use, and 

(3) verify certain information regarding 

meetings, appointments, or active duty 

status with third-party sources. 

Active duty orders. The proposed 

regulations require an employee, upon 

request from the agency, to provide a 

copy of the covered military member’s 

active duty orders or other 

documentation issued by the military 

that indicates that the covered military 

member is on covered active duty or call 

to covered active duty status and the 

dates of the covered military member’s 

active duty service. This information 

needs to be provided to the agency only 

once. A copy of new active duty orders 

or other documentation issued by the 

military must be provided to the agency 

if the need for leave because of a 

qualifying exigency arises out of a 

different covered active duty or call to 

covered active duty status of the same 

or a different covered military member. 

Required information. An agency may 

require that leave for any qualifying 

exigency specified in § 630.1204 be 

supported by a certification from the 

employee, which includes the following 

information: 

(1) A statement or description, signed 

by the employee, of appropriate facts 

regarding the qualifying exigency for 

which FMLA leave is requested. The 

facts must be sufficient to support the 

need for leave. Such facts should 

include information on the type of 

qualifying exigency for which leave is 

requested and any available written 

documentation that supports the request 

for leave. The documentation may 

include, for example, a copy of a 

meeting announcement for 

informational briefings sponsored by the 

military, a document confirming an 

appointment with a counselor or school 

official, or a copy of a bill for services 

for the handling of legal or financial 

affairs. 

(2) The approximate date on which 

the qualifying exigency commenced or 

will commence. 

(3) If an employee requests leave 

because of a qualifying exigency for a 

single, continuous period of time, the 

beginning and end dates for the absence. 

(4) If an employee requests leave 

because of a qualifying exigency on an 

intermittent or reduced leave schedule 

basis, an estimate of the frequency and 

duration of the qualifying exigency. 

(5) If the qualifying exigency involves 

meeting with a third party, appropriate 

contact information for the individual or 

entity with whom the employee is 

meeting (such as the name, title, 

organization, address, telephone 

number, fax number, and email address) 

and a brief description of the purpose of 

the meeting. 

Verification. The agency may not 

request additional information from the 

employee if an employee submits a 

complete and sufficient certification to 

support his or her request for leave 

because of a qualifying exigency. 

However, if the qualifying exigency 

involves meeting with a third party, the 

agency may contact the individual or 

entity with whom the employee is 

meeting for purposes of verifying a 

meeting or appointment schedule and 

the nature of the meeting between the 

employee and the specified individual 

or entity. The employee’s permission is 

not required in order to verify meetings 

or appointments with third parties, but 

no additional information may be 

requested by the agency. An agency also 

may contact an appropriate unit of the 

Department of Defense, without seeking 

the employee’s permission, to request 

verification that a covered military 

member is on covered active duty or call 

to covered active duty status; however, 

no additional information may be 

requested. 

Certification Form 

DOL has developed an optional form 

(Form WH-384) for employees covered 

by DOL’s FMLA regulations to use in 

obtaining a certification that meets the 

qualifying exigency certification 

requirements. (See http://www.dol.gov/ 

whd/forms/WH–384.pdf.) Form WH– 

384 requests documentation to confirm 

that a covered servicemember’s active 

duty (or call to active duty) is in support 

of a contingency operation. However, 

under the FY 2010 NDAA FMLA 

amendments, the active duty of a 

covered servicemember in a regular 

component of the Armed Forces does 

not need to be in support of a 


emcdonald on DSK2BSOYB1PROD with PROPOSALS
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contingency operation for qualifying 

exigency leave purposes. Until DOL 

updates Form WH–384, agencies that 

wish to use the form for their qualifying 

exigency certifications should provide 

separate instructions regarding the 

active duty documentation requirements 

for servicemembers in a regular 

component of the Armed Forces. 

Agencies that do not wish to use Form 

WH–384 may use another document 

containing the same basic information. 

We welcome any comments on whether 

an updated Form WH–384 would be 

sufficient for qualifying exigency 

certifications by Federal agencies or 

whether OPM should develop a similar 

optional form for this purpose. 

Interaction with Basic FMLA 

All other provisions of OPM’s FMLA 

regulations at subpart L of part 630 that 

apply to the leave entitlements under 

§ 630.1203(a) will also apply to 

qualifying exigency leave. 

E.O. 12866, Regulatory Review 

This rule has been reviewed by the 

Office of Management and Budget in 

accordance with E.O. 12866. 

Regulatory Flexibility Act 

I certify that these regulations will not 

have a significant economic impact on 

a substantial number of small entities 

because they will apply only to Federal 

agencies and employees. 

List of Subjects in 5 CFR Part 630 

Government employees. 

U.S. Office of Personnel Management. 

John Berry, 

Director. 

Accordingly, OPM is proposing to 

amend 5 CFR part 630 as follows: 

PART 630—ABSENCE AND LEAVE 

1. The authority citation for part 630 

continues to read as follows: 

Authority: 5 U.S.C. 6311; 630.205 also 

issued under Pub. L. 108–411, 118 Stat 2312; 

§ 630.301 also issued under Pub. L. 103–356, 

108 Stat. 3410 and Pub. L. 108–411, 118 Stat 

2312; § 630.303 also issued under 5 U.S.C. 

6133(a); §§ 630.306 and 630.308 also issued 

under 5 U.S.C. 6304(d)(3), Pub. L. 102–484, 

106 Stat. 2722, and Pub. L. 103–337, 108 Stat. 

2663; subpart D also issued under Pub. L. 

103–329, 108 Stat. 2423; § 630.501 and 

subpart F also issued under E.O. 11228, 30 

FR 7739, 3 CFR, 1974 Comp., p. 163; subpart 

G also issued under 5 U.S.C. 6305; subpart 

H also issued under 5 U.S.C. 6326; subpart 

I also issued under 5 U.S.C. 6332, Pub. L. 

100–566, 102 Stat. 2834, and Pub. L. 103– 

103, 107 Stat. 1022; subpart J also issued 

under 5 U.S.C. 6362, Pub. L. 100–566, and 

Pub. L. 103–103; subpart K also issued under 

Pub. L. 105–18, 111 Stat. 158; subpart L also 

issued under 5 U.S.C. 6387 and Pub. L. 103– 

3, 107 Stat. 23; and subpart M also issued 

under 5 U.S.C. 6391 and Pub. L. 102–25, 105 

Stat. 92. 

2. In § 630.1202, add the definitions of 

‘‘Covered active duty or call to covered 

active duty status,’’ ‘‘Covered military 

member,’’ and ‘‘Son or daughter on 

covered active duty or call to covered 

active duty status’’ alphabetically to read 

as follows: 

§ 630.1202 Definitions. 

* * * * * 

Covered active duty or call to covered 

active duty status means— 

(1) In the case of a member of a 

regular component of the Armed Forces, 

duty during the deployment of the 

member with the Armed Forces to a 

foreign country under a call or order to 

active duty (or notification of an 

impending call or order to active duty); 

and 

(2) In the case of a member of a 

reserve component of the Armed Forces, 

duty during the deployment of the 

member with the Armed Forces to a 

foreign country 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 any of the following 

sections of title 10, United States Code, 

or any other provision of law during a 

war or during a national emergency 

declared by the President or Congress: 

(i) Section 688, which authorizes 

ordering to active duty retired members 

of the Regular Armed Forces and 

members of the Retired Reserve retired 

after 20 years for length of service, and 

members of the Fleet Reserve or Fleet 

Marine Corps Reserve; 

(ii) Section 12301(a), which 

authorizes ordering all reserve 

component members to active duty in 

the case of war or national emergency 

declared by Congress, or when 

otherwise authorized by law; 

(iii) Section 12302, which authorizes 

ordering any unit or unassigned member 

of the Ready Reserve to active duty in 

time of national emergency declared by 

the President after January 1, 1953, or 

when otherwise authorized by law; 

(iv) Section 12304, which authorizes 

ordering any unit or unassigned member 

of the Selected Reserve and certain 

members of the Individual Ready 

Reserve to active duty; 

(v) Section 12305, which authorizes 

the suspension of promotion, 

retirement, or separation rules for 

certain Reserve components; 

(vi) Section 12406, which authorizes 

calling the National Guard into Federal 

service in certain circumstances; or 

(vii) Chapter 15, which authorizes 

calling the National Guard and State 

militia into Federal service in the case 

of insurrections and national 

emergencies. 

Covered military member means the 

employee’s spouse, son, daughter, or 

parent on covered active duty or call to 

covered active duty status. 

* * * * * 

Son or daughter on covered active 

duty or call to covered 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 

covered active duty or call to covered 

active duty status, and who is of any 

age. 

* * * * * 

3. In § 630.1203, add a new paragraph 

(a)(5), revise the first sentence of 

paragraph (b), and revise the last 

sentence of paragraph (h) to read as 

follows: 

§ 630.1203 Leave entitlement. 

(a) * * * 

(5) Any qualifying exigency arising 

out of the fact that the employee’s 

spouse, son, daughter, or parent is a 

covered military member on covered 

active duty (or has been notified of an 

impending call or order to covered 

active duty) in the Armed Forces. 

(b) An employee must invoke his or 

her entitlement to family and medical 

leave under paragraph (a) of this 

section, subject to the notification and 

medical certification requirements in 

§§ 630.1207 and 630.1208. * * * 

* * * * * 

(h) * * * An employee’s notice of his 

or her intent to take leave under 

§ 630.1207 may suffice as the 

employee’s confirmation. 

4. Redesignate current §§ 630.1204 

through 630.1211 as §§ 630.1205 

through 630.1212, respectively, and add 

a new § 630.1204 to read as follows: 

§ 630.1204 Qualifying exigency leave. 

(a) Eligible employees may take 

FMLA leave while the employee’s 

spouse, son, daughter, or parent (the 

‘‘covered military member’’) is on 

covered active duty or call to covered 

active duty status for one or more of the 

following qualifying exigencies: 

(1) Short-notice deployment. To 

address any issue that arises from the 

fact that a covered military member is 

notified of an impending call or order to 

covered active duty seven or fewer 

calendar days prior to the date of 

deployment. Leave taken for this 

purpose can be used for a period of up 

to 7 calendar days beginning on the date 

a covered military member is notified of 

an impending call or order to covered 

active duty. 


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(2) Military events and related 

activities. (i) To attend any official 

ceremony, program, or event sponsored 

by the military that is related to the 

covered active duty or call to covered 

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 covered active duty or call 

to covered active duty status of a 

covered military member. 

(3) Childcare and school activities. 

(i) To arrange for alternative childcare 

when the covered active duty or call to 

covered active duty status of a covered 

military member necessitates a change 

in the existing childcare arrangement for 

a child; 

(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 covered active duty or 

call to covered active duty status of a 

covered military member for a child; 

(iii) To enroll in or transfer to a new 

school or day care facility a child, when 

enrollment or transfer is necessitated by 

the covered active duty or call to 

covered 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 child when such 

meetings are necessary due to 

circumstances arising from the covered 

active duty or call to covered active 

duty status of a covered military 

member. 

(v) For purposes of paragraphs (a)(3)(i) 

through (a)(3)(iv) of this section, ‘‘child’’ 

means 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 

the FMLA leave is to commence 

(4) Financial and legal arrangements. 

(i) To make or update financial or legal 

arrangements to address the covered 

military member’s absence while on 

covered active duty or call to covered 

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 

covered active duty or call to covered 

active duty status, and for a period of 90 

days following the termination of the 

covered military member’s covered 

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 a child 

as defined in paragraph (a)(3)(v) of this 

section, provided that the need for 

counseling arises from the covered 

active duty or call to covered active 

duty status of a covered military 

member. 

(6) Rest and recuperation. To spend 

time with a covered military member 

who is on short-term, temporary, rest 

and recuperation leave during the 

period of deployment. Eligible 

employees may take up to 5 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 covered active duty 

status; and 

(ii) To address issues that arise from 

the death of a covered military member 

while on covered 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 covered 

active duty or call to covered active 

duty status provided that the agency 

and employee agree that such leave 

shall qualify as an exigency, and that 

they agree to both the timing and 

duration of such leave. 

(b) Employees are eligible to take 

FMLA leave because of a qualifying 

exigency when the covered military 

member is on covered active duty or call 

to covered active duty status as a 

member of a regular component of the 

Armed Forces, or when the covered 

military member is on covered active 

duty or call to covered active duty status 

in support of a contingency operation 

pursuant to one of the provisions of law 

identified in the definition of covered 

active duty or call to covered active duty 

status 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. 

(c) For those called to covered active 

duty status in support of a contingency 

operation— 

(1) 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) of this 

section in support of a contingency 

operation. 

(2) For such members, the active duty 

orders of a covered military member 

will generally specify whether the 

servicemember is serving in support of 

a contingency operation by citation to 

the relevant section of title 10 of the 

United States Code or by reference to 

the specific name of the contingency 

operation, or both. 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, or 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. (See 10 U.S.C. 

101(a)(13).) 

5. In newly designated § 630.1205, 

revise paragraph (b) and the last 

sentence of paragraph (c) to read as 

follows: 

§ 630.1205 Intermittent leave or reduced 

leave schedule. 

* * * * * 

(b) Leave under § 630.1203(a)(3) or (4) 

may be taken intermittently or on a 

reduced leave schedule when medically 

necessary, subject to §§ 630.1207 and 

630.1208(b)(6). Leave under 

§ 630.1203(a)(5) may be taken on an 

intermittent or reduced leave schedule 

basis, subject to §§ 630.1207 and 

630.1209. 

(c) * * * Upon returning from leave, 

the employee shall be entitled to be 

returned to his or her permanent 

position or an equivalent position, as 

provided in § 630.1210(a) of this part. 

* * * * * 


emcdonald on DSK2BSOYB1PROD with PROPOSALS
70850 Federal Register / Vol. 75, No. 223 / Friday, November 19, 2010 / Proposed Rules 

6. In newly designated § 630.1207, 

redesignate paragraphs (c) through (f) as 

paragraphs (d) through (g), respectively, 

and add a new paragraph (c) to read as 

follows: 

§ 630.1207 Notice of leave. 

* * * * * 

(c) If the need for leave taken under 

§ 630.1203(a)(5) is foreseeable, the 

employee must provide notice as soon 

as practicable, regardless of how far in 

advance such leave is being requested. 

* * * * * 

7. In newly designated § 630.1208, 

revise paragraph (k) to read as follows: 

§ 630.1208 Medical certification. 

* * * * * 

(k) To ensure the security and 

confidentiality of any written medical 

certification under §§ 630.1208 or 

630.1210(h) of this part, the medical 

certification shall be subject to the 

provisions for safeguarding information 

about individuals under subpart A or 

part 293 of this chapter. 

8. Further redesignate newly 

designated §§ 630.1209 through 

630.1212 as §§ 630.1210 through 

630.1213, respectively, and add new 

§ 630.1209 to read as follows: 

§ 630.1209 Certification for leave taken 

because of a qualifying exigency. 

(a) Active duty orders. The first time 

an employee requests leave because of 

a qualifying exigency arising out of the 

covered active duty or call to covered 

active duty status of a covered military 

member, an agency may require the 

employee to provide a copy of the 

covered military member’s active duty 

orders or other documentation issued by 

the military which indicates that the 

covered military member is on covered 

active duty or call to covered active 

duty status, and the dates of the covered 

military member’s active duty service. 

This information need only be provided 

to the agency once. A copy of new 

active duty orders or other 

documentation issued by the military 

must be provided to the agency if the 

need for leave because of a qualifying 

exigency arises out of a different 

covered active duty or call to covered 

active duty status of the same or a 

different covered military member. 

(b) Required information. An agency 

may require that leave for any qualifying 

exigency specified in § 630.1204 be 

supported by a certification from the 

employee that sets forth the following 

information: 

(1) A statement or description, signed 

by the employee, of appropriate facts 

regarding the qualifying exigency for 

which FMLA leave is requested. The 

facts must be sufficient to support the 

need for leave. Such facts include the 

type of qualifying exigency for which 

leave is requested and any available 

written documentation that supports the 

request for leave, such as a copy of a 

meeting announcement for 

informational briefings sponsored by the 

military, a document confirming an 

appointment with a counselor or school 

official, or a copy of a bill for services 

for the handling of legal or financial 

affairs; 

(2) The approximate date on which 

the qualifying exigency commenced or 

will commence; 

(3) If an employee requests leave 

because of a qualifying exigency for a 

single, continuous period of time, the 

beginning and end dates for such 

absence; 

(4) If an employee requests leave 

because of a qualifying exigency on an 

intermittent or reduced leave schedule 

basis, an estimate of the frequency and 

duration of the qualifying exigency; and 

(5) If the qualifying exigency involves 

meeting with a third party, appropriate 

contact information for the individual or 

entity with whom the employee is 

meeting (such as the name, title, 

organization, address, telephone 

number, fax number, and email address) 

and a brief description of the purpose of 

the meeting. 

(c) Verification. If an employee 

submits a complete and sufficient 

certification to support his or her 

request for leave because of a qualifying 

exigency, the agency may not request 

additional information from the 

employee. However, the agency may 

verify the information described in 

paragraphs (c)(1) and (c)(2) of this 

section and does not need the 

employee’s permission to do so. 

(1) If the qualifying exigency involves 

meeting with a third party, the agency 

may contact the individual or entity 

with whom the employee is meeting for 

purposes of verifying a meeting or 

appointment schedule and the nature of 

the meeting between the employee and 

the specified individual or entity. 

(2) An agency may contact an 

appropriate unit of the Department of 

Defense to request verification that a 

covered military member is on covered 

active duty or call to covered active 

duty status. 

9. In newly designated § 630.1210, 

revise the last three sentences in 

paragraph (h) and all of paragraph (l) to 

read as follows: 

§ 630.1210 Protection of employment and 

benefits. 

* * * * * 

(h) * * * The same conditions for 

verifying the adequacy of a medical 

certification in § 630.1208(c) shall apply 

to the medical certification to return to 

work. No second or third opinion on the 

medical certification to return to work 

may be required. An agency may not 

require a medical certification to return 

to work during the period the employee 

takes leave intermittently or under a 

reduced leave schedule under 

§ 630.1205. 

* * * * * 

(l) An employee who does not comply 

with the notification requirements in 

§ 630.1207 and does not provide 

medical certification signed by the 

health care provider that includes all of 

the information required in 

§ 630.1208(b) is not entitled to family 

and medical leave. 

10. In § 630.1213, revise paragraph 

(b)(3) to read as follows: 

§ 630.1213 Records and reports. 

* * * * * 

(b) * * * 

(3) The number of hours of leave 

taken under § 630.1203(a), including 

any paid leave substituted for leave 

without pay under § 630.1206(b); and 

* * * * * 

[FR Doc. 2010–29275 Filed 11–18–10; 8:45 am] 

BILLING CODE 6325–39–P 

DEPARTMENT OF AGRICULTURE 

Federal Crop Insurance Corporation 

7 CFR Part 457 

RIN 0563–AC27 

Common Crop Insurance Regulations; 

Extra Long Staple Cotton Crop 

Provisions 

AGENCY: Federal Crop Insurance 

Corporation, USDA. 

ACTION: Proposed rule with request for 

comments. 

SUMMARY: The Federal Crop Insurance 

Corporation (FCIC) proposes to amend 

the Common Crop Insurance 

Regulations, Extra Long Staple Cotton 

Crop Insurance Provisions to remove all 

references to the Daily Spot Cotton 

Quotation and replace the reference 

with the National Average Loan Rate 

published by the Farm Service Agency 

(FSA), to incorporate a current Special 

Provisions statement into the Crop 

Provisions, and to make the Extra Long 

Staple Cotton Crop Insurance Provisions 

consistent with the Upland Cotton Crop 

Insurance Provisions. The intended 

effect of this action is to provide policy 

changes, to clarify existing policy 


emcdonald on DSK2BSOYB1PROD with PROPOSALS