[Federal Register Volume 76, Number 190 (Friday, September 30, 2011)]
[Rules and Regulations]
[Pages 60701-60706]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-25310]



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Rules and Regulations
                                                Federal Register
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Federal Register / Vol. 76, No. 190 / Friday, September 30, 2011 / 
Rules and Regulations

[[Page 60701]]



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: Final rule.

-----------------------------------------------------------------------

SUMMARY: The U.S. Office of Personnel Management is issuing final 
regulations to amend the Family and Medical Leave Act (FMLA) 
regulations to provide eligible Federal employees up to 12 
administrative workweeks of unpaid leave under the FMLA for qualifying 
exigency purposes. Qualifying exigencies arise when the spouse, son, 
daughter, or parent of an employee 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 will help employees 
manage family affairs when their family members are on covered active 
duty.

DATES: This rule is effective October 31, 2011.

FOR FURTHER INFORMATION CONTACT: Doris Rippey by telephone at (202) 
606-2858; by fax at (202) 606-0824; or by e-mail at pay-leave-policy@opm.gov.

SUPPLEMENTARY INFORMATION: The U.S. Office of Personnel Management 
(OPM) is issuing final 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 unpaid leave under 
the Family and Medical Leave Act (FMLA) during any 12-month period. The 
regulations amend OPM's current regulations at 5 CFR part 630, subpart 
L, to cover qualifying exigencies that arise when the spouse, son, 
daughter, or parent of an employee is on covered active duty in the 
Armed Forces or has been notified of an impending call or order to 
covered active duty. As required by 5 U.S.C. 6387, the final 
regulations are, to the extent appropriate, consistent with the 
regulations prescribed by the Secretary of Labor to carry out the 
family medical leave entitlement for employers covered under title I of 
the FMLA, which primarily applies to employers in the private sector, 
but also includes some Federal entities, such as the U.S. Postal 
Service. Similar to the Department of Labor (DOL) regulations, OPM 
provides for eight categories of qualifying exigencies in its 
regulations: 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 and agree to the timing and duration of the leave.
    OPM published proposed regulations on the qualifying exigency leave 
entitlement for Federal employees for public comment on November 19, 
2010, at 75 FR 70845 (http://www.gpo.gov/fdsys/pkg/FR-2010-11-19/pdf/2010-29275.pdf). We received comments from three Federal labor 
organizations and two agencies that are addressed below.

Counseling

    One agency asked for clarification of the proposed regulations at 
Sec.  630.1204(a)(5), which provide that employees may take qualifying 
exigency leave to attend counseling provided by someone other than a 
healthcare provider for the employee him or herself, for the covered 
military member, or for a child, provided that the need for counseling 
arises from the covered active duty or call to covered active duty 
status of a covered military member. The agency recommended including 
examples of other types of counseling that might be provided by someone 
other than a healthcare provider.
    OPM expects that most counseling will be provided by a healthcare 
provider and fall under the existing FMLA provisions, but recognizes 
that there may be circumstances where counseling that is non-medical in 
nature will be provided by someone other than a healthcare provider. 
For example, this could include counseling provided by a military 
chaplain, pastor, or minister, or counseling offered by the military or 
a military service organization. We believe that providing these 
examples in this supplementary information portion of the regulations 
is sufficient and do not believe it is necessary to add these examples 
to the regulatory text.

Certification

    One labor organization said it supported the regulations, but 
recommended that OPM clarify certain provisions pertaining to the 
certification requirements under the regulations. The union referred to 
proposed Sec.  630.1209(b) published November 19, 2010, at 75 FR 70850.
    The commenter stated that Sec.  630.1209 requires a substantial 
amount of information to certify exigencies, some of which involve 
sensitive and privileged subjects such as legal services, counseling, 
child care, and education. For example, the labor organization stated 
that the regulations ``would require a Federal employee who needs time 
off to attend a parent-teacher conference to submit a signed statement 
of the need for the exigency leave, along with a signed document from 
the school confirming the meeting, in addition the name of the parties 
met with, their titles, their organizations, addresses, phone numbers, 
fax numbers and e-mail addresses.'' The commenter noted obstacles to 
obtaining this information, such as a school prohibition on documenting 
these conferences, schools not having appropriate letterhead, or school 
staff not having time to fill out the certification. The commenter also 
expressed concern regarding an employee's ability to gather and, where 
necessary, pay for the documentation needed to comply with 
certification requirements when the employee is otherwise burdened as a 
result of the deployment or death of a family member. The union said 
employees in these circumstances might not have time to pursue 
documentation for the number of exigencies for which they are now 
solely responsible.

[[Page 60702]]

    To address these concerns, the commenter recommended that OPM 
permit employees to provide a statement of facts regarding the 
qualifying exigency along with either the supporting documentation 
described under Sec.  630.1209(b)(1) or the third party contact 
information described under Sec.  630.1209(b)(5), but not require both. 
The labor organization feels this will give Federal employees some 
flexibility in dealing with sensitive issues or uncooperative service 
providers.
    OPM modeled its regulations on qualifying exigency leave to be 
consistent, to the extent appropriate, with DOL's regulations. Section 
630.1209 of OPM's regulations corresponds to 29 CFR 825.309 of DOL's 
regulations. DOL addressed this issue in its final regulations. (See 
discussion at 73 FR 68023-68025.) DOL strove to achieve an appropriate 
balance between providing employers with a reasonable amount of 
information to demonstrate the validity of the qualifying exigency and 
ensuring that employees are not overburdened with unnecessary steps 
that do not enhance the utility of the certification. They also stated 
that for certification purposes, ``[w]here applicable, this information 
should be readily available to the employee and should not impose a 
significant obstacle.'' (73 FR 68024.)
    We believe that the certification requirements for qualifying 
exigency leave under the regulations do not overly burden employees. 
Section 630.1209(b)(1) states only that the certification statement 
include ``any available written documentation'' that supports the leave 
request, and provides such examples as a meeting announcement, an 
appointment confirmation, or a copy of a bill for legal or financial 
services. The regulations do not require the employee to obtain a 
letter or signature from a school, sponsoring organization, or other 
party, or provide any documentation that would be prepared at a cost to 
the employee. The employee's statement of facts regarding the 
qualifying exigency should include, whenever possible, only 
documentation that is already on hand or is easily obtainable.
    Under section 630.1209(b)(5), agencies may require employees to 
provide contact information for individuals or entities with whom the 
employee is meeting so that agencies may verify, as necessary, the 
information described under section 630.1209(c). We believe it is 
important that agencies have discretion to require that employees 
provide this contact information even when the statement of facts is 
complete, sufficient, and fully documented. Agencies must have the 
option to verify the information described in paragraphs (c)(1) and (2) 
in order to prevent abuse of the qualifying exigency leave entitlement. 
However, in most cases, we do not anticipate that agencies will contact 
third parties to verify the information under paragraph (c) if the 
employee provides sufficient documentation of the qualifying exigency 
with his or her statement of facts. We also note that the contact 
information listed in parentheses in paragraph (b)(5) is illustrative; 
employees need provide only the information appropriate for the contact 
(e.g., in many cases, address and fax number may not be necessary). 
Therefore, OPM has not adopted this recommendation and has made no 
changes to the regulations in this section.
    Another labor organization expressed concerns about the potential 
privacy implications of the certification requirement, citing as an 
example a meeting with a bankruptcy counselor. As noted previously, 
employers must be provided a reasonable amount of information to 
demonstrate the validity of the qualifying exigency; however, that 
information may be described in general terms on the certification.

Verification

    In regard to the verification provisions in Sec.  630.1209(c), the 
same labor organization recommended that agencies not be permitted to 
request that third parties describe the nature of employee visits. The 
labor organization also recommended that the verification be conducted 
and kept confidential by agency human resources staff, not by the 
direct supervisor of the employee. Another labor organization commented 
on the verification provisions, recommending that OPM address 
management access to an employee's medical records in regard to the 
Privacy Act. This labor organization also said that agencies should 
inform an employee before a verification contact so that the employee 
can alert the third party as to the importance of the contact to the 
employee's qualifying exigency leave entitlement.
    Based on the comments received by the labor organizations, it is 
apparent that the verification provisions in Sec.  630.1209(c) of the 
proposed regulations did not clearly describe the information an agency 
may verify. Specifically, where the proposed regulations state that an 
agency may verify the nature of a meeting, the intent was not to permit 
an agency to ask for detailed information about an employee's medical 
circumstances or other personal matters, but to permit the agency to 
verify the information the employee already provided in his or her 
statement under Sec.  630.1209(b)(1) regarding the nature of the 
qualifying exigency. As an example of a verification contact 
(paraphrased from DOL's discussion in its November 17, 2008, 
regulations), an agency might call a school to confirm that a meeting 
took place between the employee and the teacher of a child of a covered 
military member. Therefore, we have clarified in Sec.  630.1209(c) of 
the final regulations that agencies may verify only the information 
provided by the employee in his or her statement and may not request 
additional information.
    In light of this clarification, we believe the recommendation from 
the labor organizations that the verification be conducted and kept 
confidential by agency human resources staff and not by the direct 
supervisor of the employee should no longer be an issue. The employee's 
direct supervisor must be able to manage the workload for his or her 
workgroup, which includes the approval of leave requests. The 
verification of information regarding the employee's qualifying 
exigency leave entitlement is therefore pertinent to decisions the 
supervisor must make in scheduling work and approving leave requests. 
Therefore, we believe it is appropriate for the employee's direct 
supervisor to conduct the verification of the information in the 
employee's request or at least be fully apprised of the results of the 
verification.
    Regarding the comment on addressing management access to an 
employee's medical records under the Privacy Act, the qualifying 
exigency leave regulations do not require any collection of medical 
records. (We note, however, that access to medical records is subject 
to the provisions of 5 CFR part 293. See 5 CFR 630.1208(k) of these 
final regulations.) Regarding the comment stating that agencies should 
inform an employee before making a verification contact, we believe 
that the requirement for an employee to provide third party contact 
information is sufficient notice to the employee that the agency may 
contact the third party.
    One agency expressed concern with the verification provisions in 
Sec.  630.1209(c) of the proposed regulations which provide that 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 a call to covered active duty status. The agency 
suggested that before the regulations are implemented, it would be 
helpful for OPM and DOD to agree

[[Page 60703]]

on a procedure for agencies to obtain this information and share these 
procedures. The agency further stated that its experience has been that 
DOD will not provide information on an employee's military service 
without written consent from the employee, and under the regulations, 
the covered military member is likely not an employee of the agency.
    When the Department of Labor was developing the military portions 
of its FMLA regulations (i.e, the qualifying exigency and leave to care 
for a covered servicemember entitlements) it consulted with the 
Department of Defense (DOD), the Department of Veterans Affairs (VA), 
and a number of military service organizations to provide regulations 
that would both meet the intent of Congress and not place an undue 
burden on employees seeking to use these entitlements. OPM therefore 
believes that the verification process outlined in 5 CFR 
630.1209(c)(1), which is the same procedure as in the DOL FMLA 
regulations, should function appropriately. We understand that the 
covered military member may have to provide written consent for release 
of this information, but that may also be the case when an employee 
seeks FMLA leave to care for a family member who has a serious health 
condition. We also believe that in most circumstances, an agency will 
find the covered servicemember's active duty orders sufficient proof 
that a covered military member is on covered active duty or call to 
covered active duty status and will not feel a need to verify the 
certification. However, if an agency has any doubt about the active 
duty orders, we believe the verification process will provide a useful 
tool for agencies to use to verify the certification information given 
to them.

Application

    One labor organization asked if any distinctions exist between 
District of Columbia (DC) employees and other employees under OPM's 
qualifying exigency leave regulations. There are no distinctions made 
between Federal employees working in DC compared to those who work 
outside of the District. OPM's qualifying exigency FMLA regulations 
apply to any employees covered under title II of the FMLA (5 U.S.C. 
6381). Employees who work for the District of Columbia government are 
not covered by title II of FMLA.

Certification Form

    For employees covered by DOL's FMLA regulations, DOL has developed 
an optional form (Form WH-384) for employees' use in obtaining a 
certification that meets the qualifying exigency certification 
requirements. (See http://www.dol.gov/whd/forms/WH-384.pdf.) On March 
5, 2010, OPM issued CPM 2010-06 to Heads of Executive Departments and 
Agencies regarding ``Recent Changes to the Family and Medical Leave 
Act'' to reflect the changes made by the FY 2010 NDAA. As part of this 
memorandum, we provided Federal agencies the option to choose to use 
this form as a guide in administering FMLA leave for qualifying 
exigencies for their employees. This optional form reflects 
certification requirements so as to permit the employee to furnish 
appropriate information to support his or her request for leave because 
of a qualifying exigency. At that time, we stated that employing 
agencies could use Form WH-384 or another document containing the same 
basic information for qualifying exigency purposes. In our proposed 
regulations, we requested comments on whether OPM should develop a 
certification form similar to DOL's WH-384 for use by Federal employees 
covered by title II of the FMLA.
    We received one comment outside of the public comment period in 
support of developing an OPM form. The commenting agency felt that an 
OPM form would provide more specific information to Federal employees, 
including applicable regulatory citations. Currently the WH-384 
references the DOL citations for title I employees, who are primarily 
employed in the private sector.
    We have considered developing a separate form for Federal agencies 
to use with specific citations to OPM's FMLA regulations. The DOL form 
is optional and reflects certification requirements so as to permit the 
employee to furnish appropriate information to support his or her 
request for leave because of a qualifying exigency. Currently, we state 
that employing agencies could use Form WH-384 or another document 
containing the same basic information for qualifying exigency purposes. 
Absent any comments or concerns raised by agencies, we have concluded 
that there is little to be gained by creating another optional form 
that would mostly duplicate the DOL form.
    As mentioned in our previous guidance, it should be noted that Form 
WH-384 contains citations to DOL's regulations, which are not the 
applicable authority for Federal employees governed by OPM's FMLA 
authorities. It should also be noted that since WH-384 was issued, the 
NDAA for FY 2010 added a definition of ``covered active duty'' at 5 
U.S.C. 6381(7) to mean duty of a member of a regular component of the 
Armed Forces during deployment to a foreign country, and duty of a 
member of a reserve component of the Armed Forces to a foreign country 
under a call or order to active duty under a provision of law referred 
to in 10 U.S.C. 101(a)(13)(B). Currently the 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. Federal 
agencies should continue to use the WH-384 as a tool; however, agencies 
do not need to document that the covered service member's active duty 
is in support of a contingency operation, but instead may request 
information to ensure that the active duty is to a foreign country.

Executive Order 13563 and Executive Order 12866

    The Office of Management and Budget has reviewed this rule in 
accordance with E.O. 13563 and 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 amending 5 CFR part 630 as follows:

PART 630--ABSENCE AND LEAVE

0
1. The authority citation for part 630 continues to read as follows:

    Authority: 5 U.S.C. 6311; Sec.  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.


[[Page 60704]]



0
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.
* * * * *

0
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.

0
4. Redesignate 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) An employee 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 7 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.
    (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 health care 
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

[[Page 60705]]

    (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 that 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 qualifies as an exigency, and that they agree to both the 
timing and duration of such leave.
    (b) An employee is 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).)

0
5. In redesignated 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 is entitled to be 
returned to his or her permanent position or an equivalent position, as 
provided in Sec.  630.1210(a) of this part.
* * * * *

0
6. In redesignated Sec.  630.1207, redesignate paragraphs (c) through 
(f) as (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 the leave is being requested.
* * * * *

0
7. In redesignated 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.  630.1208 or 630.1210(h) of this part, 
the medical certification is subject to the provisions for safeguarding 
information about individuals under subpart A of part 293 of this 
chapter.

0
8. Further redesignate 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 that indicates 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

[[Page 60706]]

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 e-mail 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 verifying the information provided in the employee's statement 
under paragraph (b)(1) of this section regarding the meeting between 
the employee and the specified individual or entity. No additional 
information may be requested by the agency.
    (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. No 
additional information may be requested by the agency.

0
9. In Sec.  630.1210 as redesignated, 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) 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.

0
10. In redesignated 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. 2011-25310 Filed 9-29-11; 8:45 am]
BILLING CODE 6325-39-P