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Recent FMLA Amendments Expand Military Caregiver and Flight Crew Member Leave, Add New Poster Requirement

February 26, 2013

By Kathryn M. Hindman

FMLA Benefits

On March 8, 2013 the United States Department of Labor’s new Family and Medical Leave Act regulations go into effect. These regulations implement the amendments to FMLA that were included in the National Defense Authorization Act of 2010 (NDAA) and the Airline Flight Crew Technical Corrections Act (AFCTA). The NDAA expanded the scope of FMLA rights for military family leave; AFCTA established new leave eligibility standards for airline crew members and flight attendants. DOL contends that its new regulations clarify aspects of existing law, including reiterating the intermittent leave and the physical impossibility rules, eliminating the optional-use forms and notices from DOL’s FMLA regulatory appendices, and modifying the FMLA poster.

FMLA Military Leave
On October 28, 2009 President Obama signed the NDAA, amending the FMLA’s military family leave entitlements by expanding coverage in two significant ways. Now, three years later, DOL’s regulations implement those changes.
  1. Qualifying Exigency Leave
The final rule clarifies that eligible employees with a parent, spouse, son or daughter in any branch of the Armed Forces may take FMLA for qualifying exigencies associated with deployment to a foreign country. Previously, exigency leave was not available where the covered family member was in the Regular Armed Forces - it was only available where the covered family member was a member of the Reserve or National Guard.

The “qualifying exigency” leave regulations also add a new category for parental care (to care for a service member’s parent when the parent is incapable of self-care), and expands from five to fifteen days the maximum amount of “rest and recuperation” leave an eligible employee may take to spend with a covered family member.
  1. Serious Illness or Injury of a Covered Service Member
The NDAA also expanded FMLA military caretaker leave to cover eligible employees whose family member is a recent veteran with a serious injury or illness. DOL’s final rule clarifies that eligible employees may take caretaker leave up to five years after the veteran service member leaves the military for conditions exacerbated by the military service.

FMLA for Airline Flight Crews
The final regulations also implement the AFCTA. Many airline employees, because of the way that airlines schedule them, have difficulty meeting the FMLA hours worked requirements. The AFCTA is intended to allow more airline workers to meet the eligibility requirements for FMLA.

Under the FMLA, employees must work at least 1250 hours in the prior 12-month period, which is equal to 60% of a typical 40-hour workweek. Now, airline pilots and flight attendants will meet the FMLA hours of service eligibility requirement if they have worked or have been paid for not less than 60 percent of the applicable total monthly guarantee, and have worked or have been paid for not less than 504 hours during the 12 months prior to the start of their leave. This calculation does not include personal commute time, time spent on vacation, medical or sick leave (or other noncompensable FLSA time).

The new FMLA airline flight crew regulations also: (a) list special requirements for flight crew use of intermittent leave, (b) expand leave entitlement to 72 days of leave in any 12 month period for FMLA leave and 156 days for military caregiver leave, and (c) impose special recordkeeping obligations for employers of flight crew employees.

Additional (Clarifying) Changes
Employers had hoped that DOL would use the regulations to address a number of practical issues. DOL chose not to do this in a meaningful way. Instead, it provided several clarifications that seem to sidestep these issues.

Specifically, leading up to the release of the regulations DOL had discussed narrowing or eliminating the “physical impossibility” rule. This rule allows employers to delay (not deny) reinstatement of an employee from leave where it is physically impossible for an employee to return to his/her job in the middle of a shift (for example, a railroad conductor whose FMLA intermittent leave prevents him from boarding the trains before it leaves the station could not return to work in the middle of the train’s trek). In the final regulations, DOL instead added language reminding employers that this exception is extremely narrow, and that the employer is responsible for returning the employee to the same or equivalent position as soon as possible.

Additionally, employers had hoped that DOL would address the use (and abuse) of intermittent leave. The final regulations do not do this; they only reaffirm current intermittent leave rules. DOL also admonishes employers to allow employees to use FMLA leave in the smaller of one hour increments or the time increment it allows for use with other forms of leave.

Finally, DOL removed its model FMLA optional-use forms and notices from the regulatory appendices. It explained: “Removal of the forms from the regulations does not alter the department’s belief that the forms facilitate employer and employee compliance with their respective obligations under the FMLA.” The forms are available on the Wage and Hour Division’s website; DOL believes this will allow it to update forms more easily (without having to go through the regulatory approval process). Employers that choose to use DOL’s forms should visit DOL’s website more frequently to make sure they have the most current model forms. Remember, however, employers do not have to use the DOL forms; employers may create their own forms, which must include the content permitted (and required) by the regulations.

To assist employers with compliance, DOL has created a Final Rule web page that includes an FAQ sheet, a new FMLA poster, and a new Certification for Serious Injury or Illness of a Veteran for Military Caregiver Leave (Form WH-385-V).

We will continue to monitor FMLA and state law family leave developments. Please feel free to contact us any time with any questions about the new FMLA regulations, the FMLA and state family leave laws in general, or any other labor, employment or benefits issues.