DOL Issues New FMLA Regulations Affecting Military Leave and Airline Flight Crews

The U.S. Department of Labor (DOL) has issued updated Family Medical Leave Act (FMLA) regulations ahead of schedule, and just in time for the FMLA’s 20th birthday. The Final Rule addresses family military leave and rules applicable to airline flight crews. The effective date for these updates will be March 8, 2013, for those provisions not already in effect.

Recall that the last major update to the FMLA and its regulations became effective in January 2009, and added the two new major categories of qualifying leave applicable to military families: military caregiver leave and qualifying exigency leave. The latest Final Rule updates FMLA to implement amendments to its military leave provisions made by the National Defense Authorization Act (NDAA) passed in October 2009 effective for Fiscal Year 2010. Below are the highlights of what the newly issued regulations will change:

With respect to FMLA miltary caregiver leave, the Final Rule:

  • Expands the definition of “serious injury or illness” to include preexisting injuries or illnesses aggravated in the line of duty and manifesting either before or after the servicemember became a veteran;
  • Provides specific definitions of what constitute a serious injury or illness for a current member of the Armed Forces or a covered veteran, including four specific types of conditions applicable to veterans, any one of which may be sufficient;
  • Defines a servicemember’s enrollment with the VA’s Program of Comprehensive Assistance for Family Caregivers as proof of a covered veteran’s qualifying serious injury or illness; and
  • Allows healthcare providers other than those affiliated with the DOD, VA, or TRICARE to certify a servicemember’s serious injury or illness.

With respect to the FMLA’s qualifying exigency provision, the new Final Rule:

  • Expands the eligibility for qualifying exigency leave to include employees with family members serving in the Regular Armed Forces (not just the National Guard or Reserves);
  • Adds a foreign country deployment requirement to the definition of “covered active duty” for all covered servicemembers;
  • Increases the number of days an eligible employee may take for qualifying exigency leave based on Rest and Recuperation from 5 days to up to a maximum of 15 days; and
  • Creates a new qualifying exigency leave category for parental care, whereby a qualifying employee may take leave to care for a servicemember’s parent who is incapable of self-care.

The Final Rule also removes the forms from the regulations (they will now be on the DOL’s website), clarifies changes regarding the calculation of intermittent or reduced schedule FMLA leave, and makes technical corrections to the current regulations.

 In light of the odd hours and on-call time typically required of airline flight crews, the new regulations also implement the Airline Flight Crew Technical Corrections Act (AFCTCA), which amends the FMLA to establish special eligibility requirements specifically for airline flight crew members and flight attendants, as well as special rules for calculating leave for such employees.

 Whoever administers FMLA leave for your business should familiarize themselves with the requirements of the new FMLA Final Rule and work with employment counsel to update your FMLA policy. Consult the following links to learn more:

 A chart comparing the previous regulations to the Final Rule is available from the DOL here: http://www.dol.gov/whd/fmla/2013rule/comparison.htm.

 Required FMLA posters and certification forms are available from the DOL’s website here: http://www.dol.gov/whd/regs/compliance/ca_main.htm.

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Author: Elizabeth Sigler

Elizabeth Sigler is an Associate with Stanton Law LLC. She attended the University of North Carolina at Chapel Hill as a Davie Scholar, where she earned her Bachelors of Arts degree in Political Science and Spanish. Her studies at UNC included a semester at the University of Havana in Havana, Cuba. She is also a graduate of Georgia State University College of Law, where she served as Articles Editor of the Georgia State University Law Review. While in law school Elizabeth clerked at both the U.S. Department of Labor Office of the Solicitor and the Equal Employment Opportunity Commission Hearings Unit, where she researched and analyzed a wide variety of federal employment issues. Elizabeth focuses her practice on all aspects of the employer-employee relationship, including representing and advising employers in claims involving hiring, wage, and leave disputes; discrimination; harassment; retaliation; and occupational safety and health. View all posts by Elizabeth Sigler →

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