United States: DOL Issues Proposed Rules Regarding FMLA Changes For Military Caregivers And Flight Crew

The U.S. Department of Labor (DOL) published proposed rules on February 15, 2012, in 77 Fed. Reg. 8960 to implement amendments to the Family and Medical Leave Act (FMLA) made by the National Defense Authorization Act for Fiscal Year 2010 (NDAA) and the Airline Flight Crew Technical Corrections Act (AFCTCA). (The DOL has provided employers with a FAQ sheet on the proposed rule, which is available on the agency's website.)

As most employers are aware, the FMLA regulations were modified by the DOL in 2008, and the new regulations took effect in early 2009. In late 2009, Congress amended the text of the FMLA statute twice, once to expand the scope of some FMLA rights for leave associated with military family leave and military caregiver leave and second to establish new leave eligibility standards for airline flight crew members and flight attendants. These proposed rules provide for a 60-day comment period that expires April 16, 2012.

Key Changes

Two of the key proposed changes to the FMLA regulations include:

• Qualifying Exigency Leave

Under the proposed rule, eligible employees with a spouse, child or parent in any branch of the Armed Forces can take FMLA leave to deal with exigencies related to their loved one's deployment to a foreign country. Thus, qualifying family members are entitled to FMLA leave for qualifying exigencies in connection with the foreign deployment of members of the regular Armed Forces.

This type of leave previously was available only to eligible employees with family members in the National Guard and Reserves. The proposal also includes a requirement that the Reserves and National Guard be deployed to a foreign country.

The FMLA leave may be used to deal with exigencies involving financial, legal or child care issues related to the family member's call-up or deployment, as well as to attend certain military events, spend time with the family member during rest and recuperation leave, and for other exigencies.

The DOL is proposing to expand the amount of FMLA leave an eligible employee may take to spend time with his or her covered family members during rest and recuperation leave to a maximum of 15 days. Currently, such leave is limited to five days.

• Serious Illness or Injury of a Covered Service Member

The proposed rule would expand military caregiver leave to cover eligible employees whose family members are recent veterans with a serious injury or illness.

Before the NDAA, only eligible employees who were the spouse, parent, child or next of kin of a current service member with a serious injury or illness were entitled to the special 26-week FMLA leave to provide care to members of their family. The NDAA extended military caregiver leave to eligible employees caring for veterans with serious injuries or illnesses. The proposed regulations include a definition of a covered veteran undergoing medical treatment, recuperation or therapy for a serious illness or injury, which is defined to include conditions that do not arise until after the veteran has left military service. The law also expanded the definition of a serious injury or illness for current service members and veterans to include serious injuries or illnesses that resulted from a condition that existed before the service member's active duty service and was aggravated by service in the line of duty.

There are limits to the FMLA military caregiver leave. The proposed rule permits an eligible employee to take FMLA leave to care for a veteran who was discharged within the five-year period prior to the date the employee first takes military caregiver leave. Eligible employees may still take regular FMLA leave (12 weeks) to care for a veteran who is their spouse, parent, son or daughter (if under 18 or disabled) with a serious health condition regardless of when the veteran separated from the military.

Additional Proposed Changes

In addition to the provisions addressing military caregivers, the proposed regulations also contain language requiring employers to comply with the confidentiality requirements of the Genetic Information Nondiscrimination Act of 2008 (GINA). In particular, the proposal would require all certification records and medical history documents in connection with FMLA leave be maintained as confidential medical records in files separate from personnel records. Also, if this proposed regulation becomes a final rule, employers will have to include GINA disclaimers on FMLA certification forms. The current DOL model forms do not contain the GINA disclaimer language.

The proposed regulations also modify the work hour annual threshold for airline flight crew members to qualify for FMLA leave by implementing the Airline Flight Crew Technical Corrections Act (AFCTCA). Under the proposed regulations, a flight crew employee will meet the FMLA hours-of-service eligibility requirement 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. Airline employees who are not flight crew members continue to be covered under the general hours-of-service eligibility standard that requires 1,250 hours of service in the previous 12 months.

Finally, the DOL proposes several changes to the regulation (section 825.205) that addresses the measurement of increments of leave when an employee takes intermittent or reduced schedule leave. For example, the DOL has proposed to reinsert language stating that an employer may not require an employee to use more leave than is needed to address the serious health condition. Also, the proposal seeks comments on its elimination of an employer's ability to utilize different FMLA leave increments at different times of the day or shift currently allowed in section 825.205(a). As for the physical impossibility provision in current section 825.205(a)(2), the proposal includes language to restrict its application and the DOL further indicates that it is considering removing the regulation.

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