United States: DOL Releases New Regulations Expanding Leave Entitlement For Military Caregivers And Flight Crew Members

On February 6, 2013, the U.S. Department of Labor (DOL) published new regulations that implement the federal 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 were enacted in 2009 and entitle more employees to family and medical leave under the FMLA. The regulations become effective on March 8, 2013.

Military Service Member Exigency Leave

The FY 2010 NDAA expanded the military leave provisions that had been added to the FMLA by the National Defense Authorization Act for FY 2008.1 The FY 2010 NDAA permits the family of regular Armed Forces members, as well as the 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, childcare and school activities, financial and legal arrangements, rest and recuperation, post-deployment activities, counseling, and military events and related activities.

The new regulations add language to ensure that for purposes of exigency leave related to childcare and school activities the military member must be the spouse, parent, or child of the employee seeking leave, but the child for whom the leave is sought need not be the child of the employee requesting leave. For example, an employee that is the mother of a military member is eligible for leave to deal with the childcare of the military member's child (his or her grandchild). The new regulations also expressly provide for exigency leave for parental care for a military member's parent or a person that stood in loco parentis when the parent is incapable of self-care and the need for leave arises out of the military member's active duty or call to active duty. For example, exigency leave may be available to arrange for alternative care for the parent that is required due to the call to active duty.

Prior to the FY 2010 NDAA, exigency leave was limited to the families of Reserve and National Guard members only. The FY 2010 NDAA extended such leave to eligible employees with family members serving in the regular Armed Forces, but it added the requirement that the military member must be deployed to a foreign country. The new regulations incorporate these changes, and further clarify that deployment in international waters is considered deployment to a foreign country.

The new regulations also expand from five to 15 calendar days the amount of FMLA leave an eligible employee is able to take to spend with a covered family member during rest and recuperation periods, with the length of the leave tied to the length of the military member's rest and recuperation leave.

Military Caregiver Leave

The FY 2010 NDAA extended FMLA military caregiver leave to include leave to care for certain veterans, in addition to active members of the Armed Forces. It also expanded such leave to cover serious injuries or illnesses that are aggravated – rather than just initially incurred – during the service member's active duty. Military caregivers may take up to 26 workweeks of leave in a 12-month period to care for a covered service member or veteran with a serious service-related injury or illness. This leave may be taken up to five years after the service member leaves the military with other than a dishonorable discharge.

The FY 2010 NDAA required the DOL to define what constitutes a "serious injury or illness of a veteran." Consequently, the extension of military caregiver leave to the family members of veterans will not be in effect until March 8, 2013 – 30 days after the final regulations were published. Because of the delay in implementing these regulations, however, the regulations specifically state that the period between October 28, 2009, the date the FY 2010 NDAA was enacted, and March 8, 2013, the effective date of the regulations, may not be counted when considering the five-year eligibility period for such leave.

The DOL has adopted four alternative definitions of "serious injury or illness" for veterans. The first definition covers veterans whose serious injury or illness was incurred or aggravated in active duty, rendered the servicemember unable to perform the duties of his or her office, grade, rank or rating, and is a continuation or manifestation of such injury or illness after the servicemember was discharged. The second definition covers servicemembers with a physical or mental condition that have received a Department of Veterans Affairs Service Related Disability Rating (VASRD) of 50% or higher when the rating is at least in part based on the condition that has created the need for leave. The DOL believes that this rating closely approximates a condition that substantially impairs a veteran's ability to work without requiring that the veteran be totally disabled under the U.S. Department of Veterans Affairs' (VA) regulations.

Since the DOL recognizes that not all veterans will satisfy these two criteria and many obtain medical care outside of the VA system, its third definition includes a physical or mental condition that either: (1) substantially impairs the veteran's ability to secure or follow a gainful occupation due to the service-related disability; or (2) would do so absent treatment. Finally, an injury, including a psychological injury, that led to a veteran being enrolled in the VA's Program of Comprehensive Assistance for Family Caregivers will be considered to be a "serious injury or illness."

The regulations permit employers to seek second and third opinions at the employer's expense if a certification in support of military caregiver leave is provided by a healthcare provider that is not affiliated with the Department of Defense, the VA, or TRICARE.

Military caregiver leave may be taken in a single 12-month period that begins on the first day the employee takes leave and ends 12 months later. In the regulations, the DOL explains that as long as the leave begins at any point within the five-year period, it can extend beyond the five-year period. The regulations also make it clear that a military caregiver may take leave for a servicemember when she or he is on active duty, as well as for the same servicemember when she or he subsequently becomes a veteran.

Airline Flight Crew FMLA Entitlement

The Airline Flight Crew Technical Corrections Act (AFCTCA) allows more airline employees to avail themselves of leave under the FMLA.2 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. 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, 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 duty did not count as "hours worked."

The AFCTCA provided 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 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 the start of their leave.

The regulations establish a special rule for flight crews' use of intermittent or reduced-schedule leave, stating that employers may account for such leave in increments as large as, but no greater than, one day. Because of their unique and widely varying scheduling patterns, flight crews are entitled to 72 days of leave in any 12-month period for FMLA-qualifying leave other than military caregiver leave, and 156 days of leave during any single 12-month period for military caregiver leave. The regulations also impose special recordkeeping obligations on employers of flight crew employees.

Additional Changes to the FMLA Regulations

Although the DOL had proposed making several other changes to the FMLA regulations, with a particular focus on provisions regarding the use of intermittent leave, it made only some language changes that it contends will clarify certain provisions. It had proposed eliminating a provision that was added to the regulations in 2009 that allows employers to require employees to take FMLA leave in different increments at different times of the day under certain circumstances. While retaining that provision, the DOL added language reinforcing its position that such a rule must apply to all other leaves taken during the same time of day. Other language additions serve to remind employers that they may only calculate FMLA leave using the shortest increment of time they use to measure other leaves (provided that it is not more than one hour), and reinforce the point that employers may not require employees to use more FMLA leave than is necessary to address their condition.

The DOL had sought to narrow or eliminate another provision added by the 2009 regulations 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). Instead, it added language emphasizing that this exception is limited to the period of time when an employer is physically unable to permit the employee to return to work.

The Department, however, did remove the optional-use forms and notices from the regulations' Appendices. The forms will continue to be available on the Wage and Hour Division's website, where the DOL believes they can be updated more readily. The DOL released a new, optional certification form for military caregiver leave for veterans, made minor changes to the other military caregiver certification form, the qualifying exigency certification form, and the Notice of Eligibility and Rights & Responsibilities form. It did not alter the other forms at this time. Notably, the DOL did not add to the forms the "safe harbor" language that employers should use in connection with medical inquiries to avoid liability under the Genetic Information Nondiscrimination Act (GINA). The DOL notes that any future substantive changes to the forms will effectively remain subject to normal notice and comment rulemaking since the authority for the content of the forms is set forth in the FMLA statute and its regulations. The agency further states that non-substantive changes to the forms also would be subject to public comment, but it would be through the process established by the Paperwork Reduction Act of 1995.

The DOL has provided fact sheets, a set of frequently asked questions, and additional guidance on these changes on its webpage.

What Employers Should Do Now

Employers should take this opportunity to:

  • Review their FMLA policies to ensure that the military exigency leave and military caregiver leave provisions are incorporated and accurately reflect the current state of the law.
  • Educate their HR team and managers on the military caregiver provisions of the FMLA, particularly the extension of military caregiver leave for certain veterans that will be available as of March 8, 2013.
  • Continue to ensure that their FMLA-related medical inquiries – including requests for certifications using the DOL's optional forms – are accompanied by appropriate GINA "safe harbor" language, customized as needed to the particular inquiry.
  • Ensure that if they have employees covered by AFCTCA, their FMLA policies and practices have been updated to incorporate the new provisions.

Footnotes

1 See Mark Phillis, Congress Adds Additional Family Military Leave Entitlements to the FMLA, Littler ASAP (Oct. 30, 2009).

2 See Ilyse Schuman and Peter Petesch, President Signs Bill Easing FMLA Eligibility Requirements for Airline Flight Crew, Littler ASAP (Dec. 22, 2009).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Mark T. Phillis
Similar Articles
Relevancy Powered by MondaqAI
Reinhart Boerner Van Deuren s.c.
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Reinhart Boerner Van Deuren s.c.
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions