The NDAA amendments to Titles I and II of the FMLA expanded the FMLA rights of most federal workers, but did so unevenly. Military caregiver leave was extended to federal employees covered by both Titles I and II. Qualifying exigency leave (QE leave), on the other hand, was only extended to Title I employees. QE leave give allows eligible employees to use up to 12 workweeks of leave/leave year due to a qualifying exigency related to the deployment of a covered military family member. DOL This is not a new 12 weeks of leave. Rather, think of it as a new covered condition, like birth, adoption, foster care placement, and serious health conditions, allowing an employee to draw on the same 12 weeks of FMLA leave. DOL has identified eight broad categories of qualifying exigencies.
In addition to stakeholder comments regarding the proposed military caregiver leave regulations, OPM also solicited comments on whether OPM should "pursue legislation to obtain this benefit for the Federal workforce." 74 FR 43064, 43072 (Aug. 26, 2009).
If you want qualifying exigency leave available to Title II federal employees be sure to say so in your comments regarding the proposed military caregiver leave regulations. Those comments are due October 26, 2009.
Comment: In its solicitation, OPM misstates the law. OPM observes that "The NDAA amendments do not provide this benefit [qualifying exigency leave] to Federal employees..." On the contrary, qualifying exigency leave is available to federal employees covered by Title I of the FMLA. Section 825.108, 29 CFR 825.108, defines a covered employer as a "public agency." Public agency is defined, by cross reference to the 29 USC 203(x), as the government of the United States. 29 CFR 825.108(a). Section 825.109, 29 CFR 825.109, is entitled "Federal agency coverage." That regulation, the substance of which has not changed since 1993, lists the federal employees covered by Title I of the FMLA including, for example, all Postal employees. 29 CFR 825.109(b)(1). Title I covers employees of all federal executive agencies not covered by Title II. 29 CFR 825.109(c). OPM's own regulations recognize that Title II does not apply to all federal employees. Section 630.1201(b)(2)(iv), 5 CFR 630.1201(b)(2)(iv), excludes from Title II any employee covered by Title I. 5 CFR 620.1201(b)(2)(iv). Since OPM's jurisdiction is limited to the federal workforce, it follows that there are federal employees covered by Title I that are excluded from Title II coverage. If there were not you would not need the regulation.
There is enough confusion regarding federal sector FMLA rights. OPM should take care to avoid sweeping generalizations suggesting that the FMLA rights of all federal employees are covered by Title II when that is simply not the case.
Final word: If you are a Title II stakeholder and you want or don't want OPM to pursue legislation to secure qualifying exigency leave make your position known to the OPM by October 26, 2009 at http://www.regulations.gov and follow the prompts.