On November 19, 2010, the US OPM published proposed regulations governing qualifying exigency military family leave (QE leave). SEe 75 FR 70845-70850 (Nov. 19, 2010), http://www.thefederalregister.com/d.p/2010-11-19-2010-29275, The regulations implement section 565(b)(1) of the National Defense Authorization Act of 2010 (2010 NDAA), which extended QE leave to federal employees covered by Title II of the FMLA. Prior to the 2010 NDAA amendment, QE leave was available to federal employees covered by Title I of the FMLA, but not Title II. See 29 CFR 825.126.
QE leave allows Title II eligible employees to take up to 12 administrative workweeks of leave during any 12-month period for specified 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 active duty.
The good news is that, with one exception, OPM's proposed regulations on QE leave parallel the DOL's final regulations on the topic, with minor adaptations to make them applicable to civil service employees. See 75 FR at 708461. The one exception involves a statutory change that substitutes "covered active duty" for the existing "active duty" definition. The 2010 NDAA expanded the reach of QE leave to include: (1) active duty in the Armed Forces (not simply reserve duty); and (2) service in a foreign country (not just for contingency operations). The change applies to Titles I and II. The DOL (which enforces Title I) has not issued proposed regulations to address this change.
Like the DOL, OPM allows an agency to require an employee to provide a certification substantiating the need for QE leave. As it has done with other certifications, OPM suggests that agencies use the DOL's WH-384 form for this purpose. However, because the DOL form has not been updated to reflect the availability of QE leave for a covered servicemember's active duty service, OPM suggests that agencies "provide separate instructions regarding the active duty documentation requirements for servicem3embers in a regular component of the Armed Forces. 75 FR at 70847-48.
Comment: The proposed regulations continue OPM's recent trend in issuing regulations that mirror DOL's Title I regulations. If adopted, case law interpreting the DOL Title I QE regulations (which also apply to the private sector) would be persuasive authority for the identical OPM QE regulations. That is a good thing.
I have two quibbles with OPM's proposed regulations. First, for the life of me I can't understand why OPM persists in publishing only the proposed changes. By doing so, the consumer is forced to review two documents: the current regulations and the new proposed regulations. From these two separate documents we are apparently supposed to go back-and-forth until - like a moving cartoon from separate still drawings - we are able to visualize what the new regulations would look like if they were integrated into a single set of regulations. This is an archaic way of displaying regulatory changes, proposed or otherwise. It would be more helpful if OPM integrated the proposed changes into the existing regulatory scheme. The proposed changes could be distinguished by bolding, italics, or underlining the text.
Second, OPM should have created a modified WH-384, or at least offer uniform language that agencies could use to modify the DOL WH-384 to reflect the 2010 NDAA amendments. Instead of actually being helpful, OPM merely suggests that agencies should modify the WH-384 to "provide separate instructions" for active duty documentation requirements. That is simply LAZY. Rather than leaving it to every agency to craft language that they believe addresses the issue, OPM should create uniform language that agencies can insert in the WH-384 until the form is modified by the DOL. The absence of approved, standardized language will likely result in needless litigation as parties challenge the validity of the notice provided by each agency on this issue.
The OPM regulations are merely proposed. Until OPM issues final regualtions, agencies should follow OPM's guidance in CPM 2010-06 on March 5, 2010, at http://www.chcoc.gov/Transmittals/TransmittalDetails.aspx?TransmittalID=2884
Basically, OPM's guidance reiterates the DOL QE leave regulations.