On February 15, 2012, the U.S. Department of Labor (DOL) issued a notice proposing regulations to implement amendments to the military leave provisions of the Family and Medical Leave Act (FMLA) made necessary by the passage of the National Defense Authorization Act for Fiscal Year 2010 and to implement the Airline Flight Crew Technical Corrections Act that established new FMLA leave eligibility requirements for airline flight crew members and flight attendants.

Key Provisions of the Proposed Regulations:

  • Expand the amount of time an employee may spend with a service member on rest and recuperation leave from 5 to 15 days.  Currently, eligible employees are permitted to take 5 days of leave to spend with a service member on rest and recuperation leave during a period of deployment.

  • Allow for second or third opinions on military caregiver leave certifications that are completed by healthcare professionals who are not associated with the military or with Veteran's Affairs. 

  • Clarify and define the foreign deployment requirement for qualifying exigency leave for all service members, including the Reserves, the National Guard, and the Regular Armed Forces.  Qualifying exigency leave is available only to family of service members who are deployed to a "foreign country."  Deployment to a foreign country would now be defined as areas outside the United States, the District of Columbia, or any Territory/Possession of the United States, and would include international waters.  The DOL wants to ensure that family members of the Navy, Coast Guard, and other military service members deployed in international waters have access to qualifying exigency leave.

  • Create a three-part flexible definition for serious illness or injury of a veteran in order to allow caregiver employees expanded coverage.  Under the proposed definition, a veteran would be considered to have a serious illness or injury if he or she: (1) meets the same requirements of a serious illness or injury of a current service member; (2) has received a disability rating of 50% from Veteran's Affairs (covering more conditions such as amputations, traumatic brain injuries, post-traumatic stress disorders, etc.); or (3) has a similarly severe illness or injury, but is not technically covered under the first two categories.

  • Clarify that although it is the employee's responsibility to provide the employer with sufficient certification to receive qualifying exigency leave, an employee will not be held liable for administrative delays on the part of the military despite his or her good-faith effort to obtain the necessary documents.

  • Establish special eligibility requirements for airline flight crew members, therefore allowing a larger number of airline employees to access FMLA leave.

FMLA Leave for Airline Flight Crew Members

The Airline Fight Crew Act establishes a special leave eligibility requirement under the FMLA for airline flight crew members, including flight attendants and pilots, to address the airline industry's unique scheduling requirements.  Under the new law, a flight crew member is now eligible for FMLA leave if he or she has worked or been paid for not less than 60 percent of the applicable total monthly guarantee and has worked or been paid for not less than 504 hours during the previous 12 months.

FMLA Military Family Leave

The National Defense Authorization Act expanded the FMLA's military caregiver leave and qualifying exigency leave provisions.  The FMLA's military leave provisions allow eligible employees leave to care for a family member who becomes seriously ill or injured in the line of duty during active military service (military caregiver leave) and leave to address family emergencies resulting from a family member being called to active military duty (qualifying exigency leave).  Under the military caregiver leave provision, caregivers are entitled to up to 26 weeks of leave in a single 12-month period.  Qualifying exigency leave gives employees up to 12 weeks of leave.

The original military leave provisions, signed into law in 2009, provided that:

  • An employee is entitled to take qualifying exigency leave for any covered service member, regardless of whether that person is a member of the Reserves, the National Guard, or the Regular Armed Forces.  Previously, such leave was available only for service members who were in the National Guard or Reserves, or called to active duty after retiring from the Regular Armed Forces.

  • An employee may take leave to care for a veteran with a serious illness or injury received in the line of duty as long as the family member served in the military within five years prior to the leave requested by the employee.  Before, employees were only permitted to take military caregiver leave to care for current service members.

  • Military caregiver leave was extended to include caring for both current service members and veterans whose pre-existing serious illnesses or injuries were aggravated during military service.

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