[Federal Register Volume 75, Number 223 (Friday, November 19, 2010)]
[Proposed Rules]
[Pages 70845-70850]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-29275]


========================================================================
Proposed Rules
                                                Federal Register
________________________________________________________________________

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.

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

[[Page 70845]]



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 e-mail at <a href="/cdn-cgi/l/email-protection#3e4e5f47134e5b4c58514c535f505d5b134e5152575d477e514e5310595148"><span class="__cf_email__" data-cfemail="8dfdecf4a0fde8ffebe2ffe0ece3eee8a0fde2e1e4eef4cde2fde0a3eae2fb">[email protected]</span></a>.

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

[[Page 70846]]

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 Sec. Sec.  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 Sec.  
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 Sec.  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 Sec.  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 Sec.  630.1204, which is similar to a new 
section added to the DOL regulations at 29 CFR 825.126. Proposed Sec.  
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.

[[Page 70847]]

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 Sec.  630.1205(b) (formerly Sec.  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 Sec.  630.1207 (formerly Sec.  630.1206) and the certification 
requirements in new Sec.  630.1209.
    Notice of leave. The proposed regulations add a new paragraph (c) 
to Sec.  630.1207 (formerly Sec.  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 Sec.  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 Sec.  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

[[Page 70848]]

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 Sec.  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; Sec.  630.301 also issued under Pub. L. 103-
356, 108 Stat. 3410 and Pub. L. 108-411, 118 Stat 2312; Sec.  
630.303 also issued under 5 U.S.C. 6133(a); Sec. Sec.  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; Sec.  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 Sec.  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:


Sec.  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 Sec.  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:


Sec.  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 Sec. Sec.  
630.1207 and 630.1208. * * *
* * * * *
    (h) * * * An employee's notice of his or her intent to take leave 
under Sec.  630.1207 may suffice as the employee's confirmation.
    4. Redesignate current Sec. Sec.  630.1204 through 630.1211 as 
Sec. Sec.  630.1205 through 630.1212, respectively, and add a new Sec.  
630.1204 to read as follows:


Sec.  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.

[[Page 70849]]

    (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 Sec.  630.1205, revise paragraph (b) and the 
last sentence of paragraph (c) to read as follows:


Sec.  630.1205  Intermittent leave or reduced leave schedule.

* * * * *
    (b) Leave under Sec.  630.1203(a)(3) or (4) may be taken 
intermittently or on a reduced leave schedule when medically necessary, 
subject to Sec. Sec.  630.1207 and 630.1208(b)(6). Leave under Sec.  
630.1203(a)(5) may be taken on an intermittent or reduced leave 
schedule basis, subject to Sec. Sec.  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 Sec.  630.1210(a) of this part.
* * * * *

[[Page 70850]]

    6. In newly designated Sec.  630.1207, redesignate paragraphs (c) 
through (f) as paragraphs (d) through (g), respectively, and add a new 
paragraph (c) to read as follows:


Sec.  630.1207  Notice of leave.

* * * * *
    (c) If the need for leave taken under Sec.  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 Sec.  630.1208, revise paragraph (k) to read 
as follows:


Sec.  630.1208  Medical certification.

* * * * *
    (k) To ensure the security and confidentiality of any written 
medical certification under Sec. Sec.  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 Sec. Sec.  630.1209 through 
630.1212 as Sec. Sec.  630.1210 through 630.1213, respectively, and add 
new Sec.  630.1209 to read as follows:


Sec.  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 Sec.  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 Sec.  630.1210, revise the last three 
sentences in paragraph (h) and all of paragraph (l) to read as follows:


Sec.  630.1210  Protection of employment and benefits.

* * * * *
    (h) * * * The same conditions for verifying the adequacy of a 
medical certification in Sec.  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 Sec.  630.1205.
* * * * *
    (l) An employee who does not comply with the notification 
requirements in Sec.  630.1207 and does not provide medical 
certification signed by the health care provider that includes all of 
the information required in Sec.  630.1208(b) is not entitled to family 
and medical leave.
    10. In Sec.  630.1213, revise paragraph (b)(3) to read as follows:


Sec.  630.1213  Records and reports.

* * * * *
    (b) * * *
    (3) The number of hours of leave taken under Sec.  630.1203(a), 
including any paid leave substituted for leave without pay under Sec.  
630.1206(b); and
* * * * *
[FR Doc. 2010-29275 Filed 11-18-10; 8:45 am]
BILLING CODE 6325-39-P


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