The U.S. Department of Labor (DOL) recently issued a final rule implementing two new congressional expansions of the Family and Medical Leave Act (FMLA), which became effective March 8, 2013. The first expansion provides families of eligible veterans the same job-protected FMLA leave currently available to families of military members, and enables families of regular and reserve components of the Armed Forces to take leave related to activities arising when a current servicemember is deployed. The second expansion changes existing rules under the FMLA related to the required number of hours airline flight crew employees must meet to be eligible for FMLA leave.
The final rule implements amendments made by the National Defense Authorization Act for Fiscal Year 2010 related to the military leave provisions of the FMLA. The amendments expand the qualifying exigency leave provisions to include leave for eligible family members of servicemembers of the regular Armed Forces, and expand military caregiver leave to cover pre-existing injuries or illnesses that were aggravated in the line of duty during active duty. The amendments also expand military caregiver leave provisions to provide leave to eligible family members of certain veterans with serious injury or illness. Other changes related to military leave include:
- Defining “covered veteran” as an individual undergoing medical treatment, recuperation or therapy for a serious injury or illness who was discharged or released under conditions other than dishonorable five years prior to the date the employee’s military caregiver leave begins (excluding the period between October 28, 2009, and March 8, 2013)
- Creating a flexible definition for “serious injury or illness” of a covered veteran that includes four alternatives, only one of which must be met
- Permitting eligible employees (and employer’s requesting a second or third opinion) to obtain certification of a servicemember’s serious injury or illness (both current servicemembers and veterans) from any health care provider as defined in the FMLA regulations (not only those affiliated with the U.S. Department of Defense, U.S. Department of Veterans Affairs or TRICARE® networks, as was permitted under the 2009 regulations)
- Adding the requirement for all military members to be deployed to a foreign country in order to be on “covered active duty” under the FMLA
- Increasing the amount of time an employee may take for qualifying exigency leave related to the military member’s Rest and Recuperation Leave from five days to up to a maximum of 15 days
- Creating an additional qualifying exigency leave category for “parental care” leave to provide care necessitated by the covered active duty of the military member for the military member’s parent who is incapable of self-care
With respect to airline flight crew employees, the final rule implements amendments made by the Airline Flight Crew Technical Corrections Act (AFCTCA) to the hours of service requirements in the FMLA. The amendments provide that an airline flight crew employee will meet the hours of service requirement of the FMLA if during the previous 12-month period, the employee has (1) worked or been paid for no less than 60 percent of the applicable total monthly guarantee and (2) worked or been paid for no less than 504 hours, not including personal commute time or time spent on vacation, medical or sick leave. Under the AFCTCA, the DOL estimates that roughly 6,000 flight attendants, pilots, co-pilots and flight engineers will take new FMLA leaves.
As a result, family members of current servicemembers and veterans will likely have greater ability to attend to personal matters and medical needs related to their family members’ service in the Armed Forces. In addition, airline flight crews that maintain unique work schedules will have a special method of calculating leave and greater access to the benefits of the FMLA. Given these changes, employers should review their FMLA policies to ensure they are consistent with any new applicable requirements.