Update 01/07/13—In late 2012, the Unified Agenda of Federal Regulatory and Deregulatory Actions was issued. According to the revised agenda, DOL plans to issue final FMLA regulation covering leave for qualifying exigencies, servicemember caregiver leave and airline/flight crews in March, 2013. Please note that the dates included in the revised agenda are tentative and may be subject to change.

On February 15, 2012, the U.S. Department of Labor (DOL) published its Notice of Proposed Rulemaking (NPRM) in the Federal Register to alter and expand the Family and Medical Leave Act’s (FMLA) provisions relating to military family leave and leave provisions relating to airline flight crew members. In the NPRM, DOL allowed a 60-day period for public comments on the proposed rule, expiring on April 16, 2012. The DOL has since extended the comment period through April 30.

According to DOL, the NPRM was issued to implement and interpret new statutory amendments to the FMLA. Specifically, DOL is proposing new FMLA rules to address changes brought about by the National Defense Authorization Act for Fiscal Year 2010 (FY 2010 NDAA), which amended the FMLA to extend the military caregiver leave entitlement to eligible family members of certain veterans and to extend the qualifying exigency leave entitlement to eligible family members of the regular armed forces. The NPRM also aims to address changes brought about by the Airline Flight Crew Technical Corrections Act (AFCTCA), which addressed the application of FMLA to airline flight crew members, such as airline pilots and flight attendants.

In the NPRM, DOL further stated that it will remove FMLA forms and notices from the appendix to the FMLA regulations and instead, begin posting them to the Department’s website. For more on this development, see our article New Expiration Dates on FMLA Forms: Good Until 2015.

And the Changes Are …

The major provisions of the 2012 NPRM (discussed in more detail, below) include:

• Extension of qualifying exigency leave to eligible employees with covered family members serving in the regular armed forces;
• Foreign deployment requirement for qualifying exigency leave for the deployment of all servicemembers (National Guard, reserves, regular armed forces);
• Extension of military caregiver leave to eligible family members of recent veterans with a serious injury or illness incurred in the line of duty;
• A new three-part definition for “serious injury or illness” of a veteran;
• Extension of military caregiver leave to cover serious injuries or illnesses for both current servicemembers and veterans that result from the aggravation during military service of a preexisting condition;
• A special hours of service eligibility requirement for airline flight crew employees;
• Specific provisions for calculating the amount of FMLA leave used by airline flight crew employees; and
• Administration of intermittent and reduced schedule leave, including time increments and issues of physical impossibility.

Qualifying Exigency Leave

Most of the provisions of the FY 2010 NDAA amendments to the FMLA took effect on October 28, 2009, the date the law was signed. Under these statutory provisions, eligible employees are already entitled to take FMLA leave for qualifying exigencies related to a spouse, parent, or child’s covered active duty or notification of an impending call or order to covered active duty in a foreign country with the regular armed forces. The foreign deployment requirement is also in effect for eligible employees taking qualifying exigency leave for covered family members in the National Guard or reserves.

Active duty. The NPRM proposes changes to the definition of what military service constitutes “active duty” for the purposes of qualifying exigency leave. Specifically, the NPRM creates two types of covered service: one for servicemembers in the regular armed forces and one for servicemembers in the reserves.

For members of the regular armed forces, “covered active duty” occurs when the individual is deployed with the armed forces in a foreign country.

For reserve members, the definition of “covered active duty” under the proposed rules is more complicated. Under proposed Section 825.126(a)(2), a member of the reserves is covered when active duty or call to covered active duty occurs “during the deployment of the member to a foreign country under a federal call or order to active duty in support of a contingency operation.” As a result, employers considering leave requests for employees with a servicemember in the reserves will need to determine whether the servicemember’s federal call or order to active duty is to a foreign country and in support of a contingency operation.

Note: According to the NPRM, the term “deployment” does not include reassignments to a new duty station or deployment for training exercises.

The NPRM notes that a reserve member’s active duty orders will usually specify if the covered active duty military member is serving in support of a contingency operation by citing the relevant section of the U.S. Code or by reference to the specific name of the contingency operation.

Qualifying Exigency Leave: Childcare and School Activities. The NPRM proposes some changes to the regulatory provisions allowing for leave for a qualifying exigency to attend to childcare issues or to attend specified school activities for a servicemember’s child (29 CFR Sec. 825.126(a)(3)). Under the proposed regulations, such leave would be limited to service members who are the son, daughter, or parent of the employee requesting leave.

The child for whom such leave is being requested must be the servicemember’s “biological, adopted, or foster child, stepchild, legal ward, or child for whom the servicemember stands in loco parentis, who is either under age 18 or age 18 or older and incapable of self-care because of a mental or physical disability at the time that FMLA leave is to commence.” The child for whom childcare leave is sought need not be a child of the employee requesting leave.

Qualifying Exigency Leave: Rest and Recuperation.The regulations currently allow a covered employee to take up to 5 days of FMLA leave to spend time with a military member on rest and recuperation (R&R) leave during a period of deployment (29 CFR Sec. 825.126(a)(6)). The NPRM proposes expanding the maximum duration of R&R qualifying exigency leave from 5 to 15 days, based on the actual number of days of R&R leave provided by the military. The NPRM also proposes a new Sec. 825.309(b)(6) to require that certification of qualifying exigency leave for R&R include a copy of the servicemember’s R&R leave orders or other documentation issued by the military, and the dates of the leave.

Military Caregiver Leave

Under FMLA, eligible employees are entitled to take up to 26 workweeks of military caregiver leave in a single 12-month period to care for a covered servicemember or veteran with a serious service-related injury or illness. This leave may be taken up to 5 years after the servicemember leaves the military, including when a caregiver is needed because of serious injuries or illnesses that result from a condition that predates the servicemember’s active duty, but was aggravated by military service.

According to a statement by DOL in the NPRM, the statutory provision for military caregiver leave for family members of veterans is not yet in effect. Because the FY 2010 NDAA required DOL to define what a “serious injury or illness” was for a veteran, the military caregiver leave for family members of veterans with serious injuries or illnesses could not take effect until DOL issued a final rule that contained the definition.

In the meantime, says DOL, eligible employees can take up to 12 weeks of FMLA leave to care for a veteran with a serious health condition who is their spouse, parent, son, or daughter. Employers may also provide employees with leave to care for a seriously injured or ill veteran beyond the leave required by FMLA; such leave, however, would not be FMLA-protected and could not be counted against the employee’s FMLA entitlement.

Note: FY 2010 NDAA did not contain an effective date. As a result, the provision regarding military caregiver leave for veterans was presumed by many, if not most, employers to have become effective on October 28, 2009. However, in the most recent NPRM, DOL explicitly stated its position that employers are currently not required to provide military caregiver leave to care for a veteran until the regulatory definition of a veteran’s “serious injury or illness” is final. This contradicts the widely held belief that the veterans provision was already in effect. Because FY 2010 NDAA did not contain a delayed effective date for this provision, it is unclear whether the courts would agree with DOL’s position.

Medical certification. The FMLA regulations currently limit the type of healthcare providers who may complete a medical certification for military caregiver leave for current members of the military to a U.S. Department of Defense (DOD) healthcare provider; a U.S. Department of Veterans Affairs (VA) healthcare provider; a DOD TRICARE network authorized private healthcare provider; or a DOD nonnetwork TRICARE authorized private healthcare provider.

According to the NPRM, DOL no longer believes it is appropriate to limit a current servicemember’s selection of healthcare provider more than it is limited for an individual seeking FMLA leave for a serious health condition. Under the proposed regulations (29 CFR Sec. 825.310), DOL would allow any healthcare provider that is authorized under Section 825.125 of the FMLA regulations to certify a serious health condition under the FMLA to also certify a serious injury or illness under the military caregiver provisions (in addition to DOD, VA, and TRICARE healthcare providers).

The NPRM also proposes that second and third opinions be allowed when healthcare providers outside of the DOD, VA, or TRICARE systems certify leave for military caregivers (but second or third opinions would still not be allowed for certifications by DOD/VA/TRICARE healthcare providers).

Covered veteran servicemembers. The term “covered servicemember” is not currently defined in the FMLA regulations as it pertains to veterans (29 CFR Sec. 825.127). The NPRM proposes that a “covered veteran” be defined as an individual who was discharged or released under conditions other than dishonorable at any time during the 5-year period before the first date the eligible employee takes FMLA leave to care for the covered veteran. As a result, a veteran will be considered a covered veteran if he or she was a member of the armed forces within the 5-year period immediately preceding the date the requested leave is to begin. If the FMLA leave commences within the 5-year period, the employee may continue leave for the applicable “single 12-month period,” even if it extends beyond the 5-year period.

Serious injury or illness. For current members of the armed forces and covered veterans, a serious injury or illness that existed before the beginning of the servicemember’s active duty and was aggravated by service in the line of duty on active duty includes conditions that were noted at the time of entrance into active service and conditions that the military was unaware of at the time of entrance into active service, but that are later determined to have existed at that time.

The NPRM states that “a preexisting injury or illness will generally be considered to have been aggravated by service in the line of active duty where there is an increase in the severity of such injury or illness during service, unless there is a specific finding that the increase in severity is due to the natural progression of the injury or illness.”

DOL proposes three definitions of “a serious injury or illness” for a covered veteran (29 CFR 825.127 (c)(2)(i), (c)(2)(ii), and (c)(2)(iii)). Those definitions are:

(1) A serious injury or illness of a current servicemember that continues after the servicemember becomes a veteran. Thus, if a veteran suffered a serious injury or illness when he or she was an active member of the armed forces and that same injury or illness continues after the member leaves the armed forces and becomes a veteran, the injury or illness will continue to qualify as a serious injury or illness warranting military caregiver leave.

(2) A physical or mental condition for which the covered veteran has received a VA Service Related Disability Rating (VASRD) of 50 percent or higher and such VASRD rating is based, in whole or part, on the condition precipitating the need for caregiver leave. A VASRD disability rating of 50 percent or higher encompasses disabilities or conditions such as amputations, severe burns, post traumatic stress syndrome, and severe traumatic brain injuries.

(3) Injuries and illnesses that are not technically within the definitions proposed in paragraphs (1) and (2), above, but are of similar severity. This would include a serious injury or illness such as a physical or mental condition that either substantially impairs the veteran’s ability to secure or follow a substantially gainful occupation by reason of a service-connected disability, or would do so absent treatment (i.e., traumatic brain injuries, post traumatic stress disorder, and other such conditions that may not manifest until some time after the member has become a veteran).

The third definition is intended to replicate the VASRD 50 percent disability rating standard (Sec. (c)(2)(ii)) for situations in which the veteran does not have a service-related disability rating from the VA. Instead, private healthcare providers would determine disability ratings in the same way they would make similar determinations for Social Security disability claims and workers’ compensation claims.

Note: The provisions for medical certification of military caregiver leave (29 CFR Sec. 825.310(f)) state that it is the employee’s responsibility to provide the employer with a complete and sufficient certification and describes the consequences of failing to do so. In the NPRM, DOL proposes adding text that clarifies this requirement, providing that “an employee may not be held liable for administrative delays in the issuance of military documents, despite the employee’s diligent, good-faith efforts to obtain such documents.” This proposed provision mirrors the “good-faith” exception for medical certification of leave for nonmilitary individuals.

Airline Flight Crew Members

As discussed in the introduction to this article, the AFCTCA established special FMLA hours of service eligibility requirements for airline flight crew members, such as airline pilots and flight attendants. Under AFCTCA, an airline flight attendant or flight crew member meets the FMLA’s hours of service requirement if, during the previous 12-month period, he or she (1) has worked or been paid for not less than 60 percent of the applicable total monthly guarantee (or its equivalent), and (2) has worked or been paid for not less than 504 hours, not including personal commute time, or time spent on vacation, medical, or sick leave.

In addition to integrating AFCTCA’s changes into the regulations, the NPRM proposes the following regulatory changes:

Definition of hours of service. In determining whether an airline flight crew employee has worked or been paid for 504 hours during the previous 12-month period, the NPRM proposes basing the number of hours that an airline flight crew employee has worked on the employee’s duty hours during the previous 12-month period. All airline flight crew employees are generally paid on an hourly basis, and these hours are routinely tracked by each airline. The hours an airline flight crew employee has been paid is the number of hours for which an employee received wages during the previous 12-month period (personal commute time, vacation, and medical or sick leave do not count as established in the AFCTCA).

The regulatory changes regarding hours of service will not be in effect until DOL issues a final rule. Although the proposed regulations are not yet in effect, the statutory provisions of the AFCTCA took effect on the day it was signed, December 21, 2009.

Applicable monthly guarantee for flight crew and line holders. The NPRM’s proposed paragraph Section 825.110(c)(2)(i) would include the statutory definition of “applicable monthly guarantee” for airline flight crew employees on reserve and non-reserve status. The applicable monthly guarantee would be determined by the employer’s policies or collective bargaining agreement and differ, depending on whether the airline flight crew employee is a “line holder” (not on reserve status), or on reserve status, and also on the employee’s job classification (i.e., pilot, co-pilot, flight attendant, or flight engineer).

For airline employees who are on reserve status, the applicable monthly guarantee would mean the number of hours for which an employer has agreed to pay the employee for any given month. For line holders, the applicable monthly guarantee would be the minimum number of hours for which an employer has agreed to schedule such employee for any given month. The NPRM also proposes a method for calculating leave usage for airline flight crew employees on reserve status.

Calculating “hours worked” and “hours paid.” Airline flight crew employees are FMLA-eligible if they have either the required number of “hours worked” or “hours paid.” In the NPRM, DOL proposes basing the number of hours that an airline flight crew employee has worked on the employee’s duty hours during the previous 12-month period. DOL would rely on the number of hours for which the employee was paid, according to the airline’s payroll records. DOL bases this proposed rule on the fact that airline flight crew employees are generally paid on an hourly basis and that these hours are routinely tracked by each airline. As required by the AFCTCA, personal commute time, vacation, and medical or sick leave do not count toward the hours worked or paid calculation.

Other Proposed Changes to FMLA Regulations on Intermittent and Reduced Schedule Leave

Section 825.205 of the current regulations explains how to count increments of leave in cases of intermittent or reduced schedule leave. This provision has been the source of much angst and confusion for employers. As a result, DOL proposes several changes to clarify this provision of the regulations.

Minimum increments. Current Sec. 825.205(a) defines the minimum increment of FMLA leave to be used when taken intermittently or on a reduced schedule as an increment no greater than the shortest period of time that the employer uses to account for other forms of leave, provided that it is not greater than 1 hour. DOL proposes adding language stating that an employer may not require an employee to take more leave than is necessary to address the circumstances that precipitated the need for leave. DOL believes it is necessary to emphasize the statutory requirement that an employee’s FMLA leave entitlement not be reduced beyond the amount of leave actually taken.

Varying increments. Current Sec. 825.205(a)(1) also permits employers to utilize different increments of FMLA leave at different times of the day or shift under certain circumstances. Under this provision, for example, if an employer utilizes a larger increment of leave at the beginning or the end of a shift, an employee needing FMLA leave during those periods may be required to take the leave in the size of the smallest increment of leave permitted at that particular time. In order to alleviate confusion, DOL proposes removing the language allowing for varying increments at different times of the day or shift in favor of the more general principle of using the employer’s shortest increment of any type of leave at any time.

Physical impossibility. Current Sec. 825.205(a)(2) sets forth the physical impossibility provision, which provides that where it is physically impossible for an employee to commence or end work mid-way through a shift, the entire period that the employee is forced to be absent is counted against the employee’s FMLA leave entitlement. The physical impossibility provision is intended to apply only in very narrow circumstances (i.e., fight crews, closed laboratories).

DOL is concerned that the provision may be being applied more broadly than intended. Accordingly, DOL proposes adding language emphasizing that it is an employer’s responsibility to restore an employee to his or her same or equivalent position at the end of any FMLA leave as soon as possible and that the physical impossibility provision be applied in only the most limited circumstances. In the alternative, DOL is considering deleting the physical impossibility provision in its entirety.

Other Resources

• DOL’s proposed rule website
  
• Federal Register notice
  
• FAQs on the NPRM
  
• DOL Fact Sheet on the FMLA statutory amendments
  
• DOL Fact Sheet on proposed regulatory changes