New Department of Labor Rules Implementing Changes to the FMLA for Military Members and Airline Flight Crew Employees

The Family and Medical Leave Act (“FMLA”) entitles eligible employees of covered employers to take unpaid leave for (1) the birth of a child and to care for the newborn child; (2) the placement of a child for adoption or foster care and to care for the newly placed child within one year of placement; (3) care for a family member with a serious health condition; (4) the employee’s own serious health condition that makes the employee unable to perform the functions of his or her job; or (5) certain military-related reasons. During the FMLA leave, the employee’s job is protected and the employee receives health insurance coverage under the same terms and conditions as if the employee had not taken leave.

The FMLA was amended in January 2008 to provide two types of military family leave. The first, Exigency Leave, is a 12-week leave for eligible family members to deal with exigencies related to a call to active duty of service members of the National Guard and reserves. The second, Military Caregiver Leave, provides for a 26-week leave for eligible family members to care for seriously ill or injured of the regular armed forces, National Guard and reserves. In 2010, Congress amended the FMLA again and expanded both types of military family leave by expanding Military Caregiver Leave to include family members of certain veterans with serious injuries or illnesses who are receiving medical treatment, recuperation or therapy if the veteran was a member of the armed forces at any time during the five years preceding the date of the medical treatment recuperation or therapy and to include the to the family member of current service members with a preexisting condition aggravated by military service in the line of duty on active duty. The 2010 amendments also expanded Exigency Leave to include family members of those in the regular armed forces but added the requirement that service members be deployed to a foreign country.

On February 6, 2013, the Department of Labor which regulates and oversees enforcement of the FMLA issued a Final Rule, which goes into effect on March 8, 2013. These new regulations increase and clarify, among other things, the scope of military exigency leave, extended military caregiver leave, and airline flight crew employees FMLA eligibility requirements. First, the Final Rule places limits on Exigency Leave to arrange for child care or attend certain school activities for a military member’s child. Specifically, the military members must be the spouse, son, daughter or parent of the employee seeking leave. Second, the Final Rule increases the maximum number of days from five to 15 calendar days for leave to bond with a military member on rest and recuperation leave consistent with the amount of time provided to the military member. For example, if the military allows a member 10 days of rest and recuperation then the employee is entitled to 10 days. Finally, the Final Rule adds parental care as a qualifying exigency for which leave may be taken. This allowance tracks the child care provisions and allows leave for the spouse, parent, or child of a military member in order to do the following: (i) arrange for alternative care for a parent of a military member when the parent is incapable of self care and the covered active duty of the military member necessitates a change in existing care arrangements; (ii) provide care for a parent of a military member on an urgent, immediate-need basis when the parent is incapable of self-care and the need to provide such care arose from the active duty status of the military member; (iii) admit or transfer a parent of the military member to a care facility when the admittance or transfer is necessitated by the military member’s covered duty status; or (iv) attend meetings with staff at a care facility for a parent of a military member.

The Final Rule also includes provisions to align the existing regulations with the passage of the Airline Flight Crew Technical Corrections Act (AFCTCA), effective December 21, 2009. Because the AFCTCA established a special hours-of-service requirement for airline flight crew employees, the Final Rule provides that an airline flight crew employee can meet the hours-of-service requirement under the FMLA if he or she (1) meets the standard threshold (1,250 hours in 12 months) or (2) has worked or been paid for not less than 60% of his or her applicable monthly guarantee and has worked or been paid for not less than 504 hours. The Final Rule also clarifies that it is the employer who has the burden of proof in showing that an airline flight crew employee is not eligible for leave. The Final Rule allows airline flight crews up to 72 days of leave during any 12-month period to use for one or more the following reasons: (i) an employee’s basic leave entitlement for the employee’s own illness; to care for an ill spouse, child or parent; (ii) for the birth or adoption of a child or placement of a child in the employee’s home for foster care; or (iii) for exigent circumstances associated with the employee’s spouse, child or parent on covered active military duty. This entitlement is based on a uniform six-day workweek for all airline flight crews, regardless of time actually worked or paid, multiplied by the statutory 12-workweek entitlement. Airline flight crews employees are entitled to up to 156 days military caregiver leave.

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