DOL Proposes Rule Implementing FMLA Expansion for Military Caregivers, Flight Crew Members

The Department of Labor has released a proposed rule that implements the Family and Medical Leave Act (FMLA) amendments made by the National Defense Authorization Act for FY 2010 (FY 2010 NDAA) and the Airline Flight Crew Technical Corrections Act. Both laws enacted in 2009 entitle more employees to FMLA leave.

The FY 2010 NDAA permits family of regular armed forces members, as well as family of Reserve and National Guard members, to take up to 12 weeks of job-protected leave in a 12-month period for a “qualifying exigency” arising out of the active duty or call to active duty status of a spouse, son, daughter or parent. A broad range of events and activities are considered qualifying exigencies, including short-notice deployment, child care and school activities, financial and legal arrangements, rest and recuperation, post-deployment activities, counseling, and military events and related activities. Prior to the FY 2010 NDAA, exigency leave was limited to family of Reserve and National Guard members only.

The proposed rule extends qualifying exigency leave to eligible employees with family members serving in the Regular Armed Forces as well, and adds the requirement that the military member must be deployed to a foreign country in order for eligible family members to take leave for a qualifying exigency. The proposal also seeks to expand from five to 15 days the amount of FMLA leave an eligible employee would be able to take to spend with the covered family member during rest and recuperation periods.

The Airline Flight Crew Technical Corrections Act (AFCTCA) allows more airline employees to avail themselves of leave under the FMLA as well. The Act’s intent was to close a perceived loophole in the FMLA’s hours of service requirements for pilots and flight attendants whose unconventional work schedules often failed to qualify them for FMLA leave. In order to be entitled to FMLA leave, employees must have worked for their employer for at least 12 months and for at least 1,250 hours during the previous 12-month period, which equates to at least 60 percent of a standard 40-hour work week. Under the Fair Labor Standards Act (FLSA), which is used to determine the number of hours worked for FMLA purposes, some courts concluded that the time pilots and flight attendants spent on the job between flights and on mandatory standby do not count as “hours worked.”

 The AFCTCA provided that that the hours pilots or flight attendants work or for which they are paid – not just those spent in actual flight – count toward the minimum hours calculation. Under the revised eligibility rules, flight crew employees will meet the hours of service requirement if they have worked or been paid for not less than 60 percent of the applicable total monthly guarantee and have worked or been paid for not less than 504 hours during the 12 months prior to their leave.

delete a provision that was added to the regulations in 2009 which allows employers to utilize different increments of FMLA leave at different times of day under certain circumstances. The Department’s enforcement experience indicates some confusion over the application of this provision. In response to the apparent confusion, the Department proposes to delete this provision of the regulations in favor of the more general principle of calculating FMLA leave usage using the employer’s shortest increment of leave at any time.

The proposed rule also seeks to clarify the employer’s responsibility to reinstate an employee after FMLA leave. The 2009 regulations added a new provision that permits an employer to delay reinstatement where it is physically impossible for the employee to return to his or her job in mid-shift (for example, if the employee works in a locked clean room). According to the FAQs, the Department “is concerned that some employers may have misinterpreted the concept of physical impossibility to apply to circumstances where it is merely inconvenient to reinstate the employee mid-shift, ” and the proposed rule would “clarify the narrow scope of this regulatory provision.” The Department also proposes to remove the optional-use forms and notices from the regulations’ Appendices. The forms will continue to be available on the Wage and Hour Division Web site.

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