April 18, 2012 – The public comment period on the U.S. Department of Labor’s recently issued proposed changes to the federal Family and Medical Leave Act (FMLA) regulations, related primarily to military family leave and airline flight crew eligibility, will close on April 30, 2012. The following highlights the significant changes proposed by the Department of Labor.

Service member leave

The 2008 revisions made to the FMLA allow an eligible employee to take up to 26 weeks of leave to care for a covered servicemember with a serious injury or illness. For purposes of such leave, a covered servicemember includes the employee’s spouse, child, parent, or next of kin who is a current member of the Armed Forces, including a member of the National Guard or Reserves.

The Fiscal Year 2010 National Defense Authorization Act (NDAA) expanded the definition of covered servicemember to include veterans who were active members of the military within the past five years. It also changed the definition of “serious injury or illness” to include not only injuries or illnesses incurred in the line of duty but also any pre-existing injuries or illnesses that are aggravated by service in the line of duty.

The proposed regulations further clarify servicemember eligibility and leave administration as follows:

1) As it relates to veterans, a “serious injury or illness” includes a:

• “continuation of a serious injury or illness that was incurred or aggravated when the covered veteran was a member of the Armed Forces and rendered the servicemember unable to perform the duties of the servicemember’s office, grade, rank, or rating;”
• “physical or mental condition for which the covered veteran has received a U.S. Department of Veterans Affairs Service Related Disability Rating (VASRD) of 50 percent or higher, and such VASRD rating is based, in whole or in part, on the condition precipitating the need for military caregiver leave;” or
• “physical or mental condition that substantially impairs the veteran’s ability to secure or follow a substantially gainful occupation by reason of a service-connected disability or disabilities, or would do so absent treatment;” and

2) Servicemember medical certifications may be completed not only by military health-care providers, as is currently required by the regulations, but also by health-care providers who are not affiliated with the military. Second and third medical opinions may also be requested from nonmilitary affiliated health-care providers, so long as a military health-care provider did not complete the initial certification.

Military qualifying exigency leave

In 2008, the FMLA was amended to permit eligible employees to take FMLA leave because of a qualifying exigency that arises out of the active duty or call to active duty of a family member in the National Guard or Reserves. Qualifying exigencies include attending to legal, financial, childcare, and other related matters. The NDAA expanded qualifying exigency leave to include family members in the Regular Armed Forces. It also added a new condition that the deployment triggering the qualifying exigency must be to a foreign country.

The proposed regulations provide the following additional guidance regarding qualifying exigency leave:

• Deployment to a foreign country can include deployment to “international waters” and areas outside the United States and its territories;
• Leave for “rest and recuperation,” currently provided for under the regulations, would be expanded from a maximum of five days to 15 days; and
• Allows an employer to require documentation of a servicemember’s active duty order or other similar military-issued documentation to substantiate the need for leave.

Airline flight crew

The Airline Flight Crew Technical Corrections Act (AFCTCA), enacted in 2009, altered the FMLA hours of service eligibility requirements for flight crew employees. Instead of the traditional 1,250 hours worked requirement, the airline flight crew employee must have worked or have been paid for not less than 60 percent of the applicable monthly guarantee and have worked or been paid for not less than 504 hours (not including personal commute time, vacation, sick leave, or medical leave). The proposed regulations attempt to further clarify how such calculation is to be undertaken for purposes of determining the applicable monthly guarantee and hours of duty.

Additional proposed changes

In addition to the foregoing changes, the proposed regulations:

• Provide additional guidance on the calculation of intermittent leave, including clarifying that if an employer uses different increments of leave for different types of leave, the employer must use the smallest of the increments to account for FMLA leave usage;
• Reiterate that employers are required to comply with the recordkeeping requirements of the Genetic Information Non-Discrimination Act with respect to FMLA documentation that contains “genetic information;” and
• Remove from its appendix the optional-use forms and notices, which will remain available on the Department of Labor’s website.

As noted above, comments on the proposed regulations are due to the Department of Labor by no later than April 30, 2012.

About the author

Margaret Kurlinski, Washington Univ. 2005, practices management-side labor and employment law with Godfrey & Kahn S.C., Milwaukee. She can be reached at (414) 287-9539 or mkurlinski@gklaw.com.