Focus on Revised FMLA Regulations: Can An Employee Provide Some Other Information In Support of A Request for Leave Due to A Qualifying Exigency If the Active Duty Orders Contain Sensitive Information?

A client recently asked this question. I am told by those who have received active duty orders that they do not specify anything other than the start date of the active duty and the location to which the individual needs to report. That said, 29 C.F.R. Section 825.309(a) provides that, the first time an employee requests leave because of a qualifying exigency arising out of the active duty or a call to active duty status of a covered military member, an employer 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 active duty or call to active duty status in support of a contingency operation, and the dates of the covered military member's active duty service. Given this language, if an employer is presented with the latter documentation, the employer should accept the documents as satisfying the requirements of 29 C.F.R. Section 825.309(a).

Please note that an employer also may require additional information from an employee requesting leave for a qualifying exigency, as set forth in 29 C.F.R. Section 825.309(b). Some of the items that the employer may require include: (1) a statement or description signed by the employee of appropriate facts regarding the qualifying exigency. The statement should include documentation that supports the request for leave. The Regulations provide these examples: a meeting announcement for informational briefings sponsored by the military, written confirmation of meetings with counselors, and bills for the handling of legal or financial affairs; (2) the approximate date on which the qualifying exigency commenced or will commence; and (3) the beginning and end dates of leave for a continuous period of time.

The Department of Labor has prepared a sample Certification of Qualifying Exigency for Military Family Leave (Appendix G to the Final Regulations) that an employer may require an employee requesting leave due to a qualifying exigency to complete.

Please see my November 21, 2008 blog for a link to the full text of the Revised Regulations.

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