• DOL Proposes Revised FMLA Rules for Military Families and Airline Flight Crew Employees
  • February 24, 2012 | Author: Tasos C. Paindiris
  • Law Firm: Jackson Lewis LLP - Miami Office
  • The U.S. Department of Labor’s Wage and Hour Division has issued a notice of proposed rulemaking (NPRM) to implement statutory amendments to the Family and Medical Leave Act that, among other things, would expand military family leave provisions and incorporate a special eligibility provision for airline flight crew employees. Secretary of Labor Hilda L. Solis made the announcement on January 30, 2012, at an event entitled, “Joining Forces for Caregivers.”  The NPRM was published in the February 15, 2012, Federal Register.

    The FMLA entitles eligible employees of covered employers to take unpaid, job-protected leave for specified family and medical reasons.

    Military caregiver leave allows an employee to take up to 26 workweeks of leave during a single 12-month period to care for a covered servicemember with a serious injury or illness if the eligible employee is the servicemember’s spouse, son, daughter, parent, or next of kin. The National Defense Authorization Act for Fiscal Year 2010 (“NDAA FY 2010”) amended the FMLA and the DOL proposal implements those amendments.  Highlights of the DOL proposal on military family leave include the following:

    • Extending entitlement of military caregiver leave to family members of veterans for up to five years after leaving the military.
    • Extending qualifying exigency leave to employees whose family members serve in the regular armed forces.
    • Extending from five days to 15 days the time an employee may take leave to spend with a military member who is on rest and recuperation leave.
    • Expanding the definition of a serious injury or illness for both current servicemembers and veterans to include that resulting from a condition that existed before the servicemember’s active duty service and was aggravated by service in the line of duty.

    On December 21, 2009, the Airline Flight Crew Technical Corrections Act, amending section 101(2) of the FMLA, became law. It establishes a special hours-of-service eligibility requirement for airline flight attendants and flight crew members. Airline flight attendants and flight crew members continue to be subject to the FMLA’s other eligibility requirements. The proposal provides that an airline flight attendant or flight crew member meets the hours-of-service requirement if, during the previous 12-month period, he or she (1) has worked or been paid for at least 60 percent of the applicable total monthly guarantee (or its equivalent), and (2) has worked or been paid for at least 504 hours, not including personal commute time, or time spent on vacation, medical, or sick leave.  Caution should be exercised in determining the applicable total monthly guarantee as this determination will require consideration of time during which flight crew members are unavailable to work.

    In addition to the changes required by the NDAA FY 2010 and the AFCTCA, the DOL proposes to remove the optional-use forms (e.g., WH-380E and WH-380F) and notices (e.g., WH-381 and WH-382) from the regulations, even though they will continue to be available from the Wage and Hour Division’s website.  Finally, the proposal would delete a 2009 provision that allows employers to record leave in the increment in which other leave is recorded, provided that increment is no greater than one hour (this was to address the problem of employees using FMLA leave as an excuse for chronic tardiness). Thus, elimination of the provision would have employers revert to the pre-2009 scheme of calculating FMLA using the employer’s shortest increment of leave (typically six minutes) at any time.

    With the publication of the NPRM in the Federal Register on February 15, 2012, interested parties can submit written comments on the proposed rule during the 60-day open comment period, through April 16, 2012.

    Should the NPRM be adopted, employers will have to review and revise their FMLA policies to address the expanded scope of the law.  Airlines, in addition, would need to review their collective bargaining agreements to ensure that they account for the revised eligibility requirements applicable to flight crews.

    This is only a brief summary of the proposed changes.  Employers should consider consulting legal counsel to review their particular situations or to submit comments to the DOL.