As we reported in a previous white paper, the U.S. Department of Labor (DOL) recently published a Notice of Proposed Rulemaking (NPRM) to alter and expand the Family and Medical Leave Act’s provisions relating to military family leave and leave provisions relating to airline flight crew members. Due to the high level of interest in the proposed rule and DOL’s “desire to obtain as much information about its proposal as possible,” the comment period was extended through April 30, 2012.
Here is a brief summary of the proposed changes to the FMLA regulations.
Family military leave
- Expands coverage for military caregiver leave to include care for covered veterans with a serious injury or illness.
- Creates a flexible, three-part definition for serious injury or illness of a veteran.
- Allows nonmilitary physicians to certify need for leave
- Includes the statutory amendment’s limitation on coverage to care for veterans to veterans who have been discharged within the 5 preceding years.
- Expands military caregiver leave to cover serious injuries or illnesses that result from the aggravation of a preexisting condition in the line of duty for both active duty servicemembers and covered veterans.
- Extends qualifying exigency leave to include employees whose family members serve in the regular armed forces (in addition to the National Guard and reserves).
- Expand qualifying exigency leave for rest and recuperation from 5 to 15 days.
- Adds the new statutory requirement that the employee’s family member be deployed to a foreign country. (Note: this requirement applies to National Guard, reserves, and regular armed forces members).
Airline flight crew amendments
- Implement a new special minimum “hours of service” eligibility requirement for airline flight crew employees.
- Allow airline flight crew employees to meet the hours of service eligibility 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 their leave.
- Allow employers to track intermittent or reduced schedule FMLA leave in the smallest increments used by an employer’s payroll system, so long as it is 1 hour or less. Disallows use of varying increments of time.
- Limit the employer’s ability to delay reinstatement where it is physically impossible for the employee to return to his or her job in the middle of his or her shift (i.e., flight attendants) to only the most limited circumstances to avoid abuse of the exception.
The comments are in …
Comments on the proposed regulations ranged from approving (a few) to outright condemnation. Said Mike Aitken, vice president for government affairs at the Society for Human Resource Management (SHRM), the organization was “disappointed that the agency chose to alter provisions unrelated to these legislative changes and that were carefully considered by the agency in 2008.”
Most notably, reaction to the proposed changes for tracking intermittent leave was hostile, at best. Comments submitted by SHRM noted that the proposed changes to intermittent leave tracking were “misguided and should be withdrawn.”
SHRM registered its concern that the proposed regulations were DOL’s “attempt to roll back certain employer-supported provisions” that were made to the regulations just 4 years ago. The proposed changes to intermittent leave tracking would “eliminate an employer’s flexibility to maintain a policy intended to discourage tardy arrivals by tracking leave in 1-hour increments,” said SHRM.
WorldatWork (a human resources organization) also objected to the proposed changes to intermittent leave tracking based on numerous studies conducted by the organization that demonstrated a high level of difficulty in administering intermittent leave.
As a result, WorldatWork also requested that DOL “maintain the maximum amount of flexibility for employers in administering intermittent leave, including maintaining the provision allowing for varying increments at different times of the day or shift.”
With regard to DOL’s proposal to limit an employer’s ability to delay reinstatement where it is physically impossible for an employee to return to his or her job in the middle of his or her shift (i.e., flight attendants), the reaction was overwhelmingly negative.
SHRM asked DOL to leave the regulations alone, saying that “the physical impossibility provision has not been in existence long enough to develop a meaningful track record,” and the organization was “unaware of any misuse of this provision.”
WorldatWork agreed, citing a 2012 survey the organization conducted that revealed that respondents had very little experience with the physical impossibility rule—only 7 percent of respondents reported that they work in an organization that had used the provision.
WorldatWork would also like further clarification from DOL regarding when FMLA protection is triggered where an individual takes a non-FMLA leave for an FMLA-qualifying purpose that commenced before the date the employee satisfied the eligibility provisions (12-month rule), but after satisfying the 1,250 hour rule. Additional clarification is needed in regard to how leave time is counted against that employee’s FMLA entitlement.
What happens next?
The period for public comment on the proposed rule closed on April 30, 2012. Generally, the agency allows for at least 90 days to consider the comments and formulate responses to be included in the preamble to the final rule.
As a result, we do not anticipate that a final rule would be issued before August 2012, at the earliest. It is more likely that any final rule would be issued even later this year.
Proposed rule resources