U.S. Department of Labor Proposes New Rules to Carry Out 2009 Family and Medical Leave Act Changes for Military Caregivers and Airline Flight Workers

On January 30, 2012, Labor Secretary Hilda Solis and First Lady Michelle Obama announced new proposed rules by the Department of Labor’s Wage and Hour Division to implement and interpret the 2009 statutory amendments to the Family and Medical Leave Act of 1993 (“FMLA”) concerning military caregiver leave and leave entitlement for airline flight crew employees.

Under the FMLA, eligible employees of covered employers are entitled to take unpaid, job-protected leave for specified family and medical reasons. Eligible employees may take up to 12 weeks of FMLA leave in a 12-month period for:

(1) The birth, adoption or placement of a child;

(2) To care for a family member with a serious health condition; or

(3) Because they are unable to work due to their own serious health condition.

In 2008, the FMLA was amended to provide:

(1) Eligible employees who are the spouse, son, daughter, parent, or next of kin of a service member (National Guard, Reserves, or Regular Armed Forces) with a serious injury or illness incurred in the line of duty with up to 26 weeks of FMLA leave during a single 12-month period to care for their family member (military caregiver leave); and

(2) Eligible employees whose spouse, child, or parent is called up for active duty in the National Guard or Reserves with up to 12 weeks of FMLA leave for “qualifying exigencies” related to the call-up of their family member (qualifying exigency leave).

2009 Statutory Amendments to the FMLA

Congress amended the FMLA through the National Defense Authorization Act (“NDAA”) in October 2009, and again through the Airline Flight Crew Technical Corrections Act in December 2009. These amendments enhanced the military family leave provisions and included an eligibility provision for airline flight crew employees.

Military Family Leave

For the first time, the statutory amendments extended military caregiver leave to eligible employees whose family members are recent veterans with serious injuries or illnesses. These amendments include a limitation on coverage to care for veterans to veterans who have been discharged within the five preceding years. The statutory amendments also broaden military caregiver leave to cover serious injuries or illnesses that result from the aggravation of a preexisting condition in the line of duty for both active duty service members and covered veterans.

The amendments also expanded the military family leave provisions of the FMLA by extending qualifying exigency leave to employees whose family members serve in the Regular Armed Forces (in addition to the National Guard and Reserves). The proposed rules also add the new statutory requirement that the employee’s family member be deployed to a foreign country (this requirement applies to National Guard, Reserves, and Regular Armed Forces members).

Airline Flight Crew Amendments

The Department of Labor’s (“DOL”) proposal would implement a new minimum hours of service eligibility requirement for airline flight crew employees. Previously, the requirement of serving 1250 hours in the 12 months preceding the leave was difficult for flight crew employees to meet in light of the airline industry’s unique requirements. Instead, to be eligible for FMLA qualifying leave, flight crew members and flight attendants must have worked or been paid for at least 60 percent of the “applicable total monthly guarantee, or the equivalent,” during the prior 12-month period for the employer. In addition, the flight crew member or flight attendant must have worked or been paid for at least 504 hours during the prior 12-month period, not including personal commuting time or time spent on vacation or medical or sick leave.

Notice of Proposed Rule Making (“NPRM”)

The purpose of the NPRM is to propose revisions to the regulations implementing the FMLA with respect to the recent statutory revisions described above, as well as make some additional regulatory changes. If they become effective, the proposed rules would:

• Allow eligible employees to take leave before, during or after a service member’s deployment abroad to tend to matters related to their service, such as attendance at military briefings and making financial and legal arrangements;

• Increase the amount of leave an eligible employee may take to spend time with a family member on “rest and recuperation” leave during a period of deployment from 5 to 15 days;

• Provide a flexible, three-part definition for serious injury or illness of a veteran;

• Clarify the general principle of using the employer’s shortest increment of any type of leave at any time;

• Emphasize the employer’s responsibility to restore employees to their equivalent positions at the end of any FMLA leave as soon as possible;

• Allow employees to obtain medical certification from providers who are not affiliated with the military;

• Include a new foreign deployment requirement for qualifying exigency leave for the deployment of all service members (National Guard, Reserves, Regular Armed Forces); and

• Add specific provisions for calculating the amount of FMLA leave used by airline flight crew employees.

What Should Employers Do Now?

Because the statutory amendments went into effect in 2009, employers should comply with them, as employers covered by the FMLA must comply even though the supporting and interpretive regulations have not yet been implemented.

Employers also should consider reviewing and submitting written comments on the proposed rules. The NPRM has not yet been published in the Federal Register, but once the NPRM has been published, interested parties will be invited to submit written comments on the proposed rule. All public comments must be received within 60 days following the publication date, and must reference the assigned Regulatory Information Number (“RIN”): 1235-AA0. Employers wishing to comment may submit their comments in one of two ways:

1. By electronic submission through the Federal eRulemaking Portal; or,

2. By mail addressed to Mary Ziegler, Director of the Division of Regulations, Legislation, and Interpretation, Wage and Hour Division, U.S. Department of Labor, Room S-3510, 200 Constitution Avenue, N.W., Washington, D.C. 20210.

Leech Tishman’s Employment Practice Group has experience handling FMLA and other employment issues and is available to answer any questions you may have regarding the DOL’s proposed FMLA regulations.

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