The Department of Labor’s (DOL’s) Wage and Hour Division (WHD) has released proposed regulations that would revise certain regulations regarding the Family and Medical Leave Act of 1993 (FMLA), primarily to implement recent statutory amendments to the Act. These proposed regulations would implement amendments to the military leave provisions of the FMLA made by the National Defense Authorization Act for Fiscal Year 2010, which:
- Extends the availability of FMLA leave to family members of members of the Regular Armed Forces for qualifying exigencies arising out of the servicemember’s deployment ;
- Defines those deployments covered under these provisions; and
- Extends FMLA military caregiver leave to family members of certain veterans with serious injuries or illnesses.
This proposed regulation also would amend the FMLA regulations to implement the Airline Flight Crew Technical Corrections Act, which established new FMLA leave eligibility requirements for airline flight crewmembers and flight attendants. In addition, the proposal includes changes concerning:
- The calculation of leave;
- Reorganization of certain sections to enhance clarity;
- The removal of the forms from the regulations; and
- Technical corrections of inadvertent drafting errors in the current regulations.
Once the regulations are published in the Federal Register, there will be a 60-day comment period. To comment electronically on Federal rulemakings, go to the Federal e-Rulemaking Portal at http://www.regulations.gov, which will allow you to find, review, and submit comments on Federal documents that are open for comment and published in the Federal Register. You must identify all comments submitted by including the RIN 1235-AA03 in your submission.
The DOL intends to make minor changes to the FMLA poster and forms to reflect the amendments affecting military family leave and airline flight crews. The DOL also intends to develop a new form for the certification for the serious injury or illness of a covered veteran.
The DOL also proposes to remove the optional-use forms and notices from the regulations’ Appendices. The DOL updates the forms and the versions in the regulations are not the latest ones, which causes confusion. The forms will continue to be available on the WHD Web site. Employers are permitted to use forms other than those issued by the DOL as long as they do not require information beyond that specified in the regulations.
The DOL proposes to clarify in the regulatory text that FMLA leave may only be counted against an employee’s FMLA entitlement for leave taken and not for time that is worked for the employer. Accordingly, where an employer chooses to waive its increment of leave policy in order to return an employee to work — for example where an employee arrives a half hour late due to an FMLA-qualifying condition and the employer waives its normal one hour increment of leave and puts the employee to work immediately – only the amount of leave actually taken by the employee may be counted against the FMLA entitlement.
Military Family Leave
The DOL proposes to add a definition of “covered servicemember” to reflect the addition of covered veterans. The DOL also proposes to change the term “active duty” to “covered active duty”.
The DOL proposes to define deployment of the member with the Armed Forces to a foreign country. The term does not include reassignments to a new duty station or deployment for training exercises. The definition of “deployment” includes deployment of the military member to active duty in international waters.
The proposed regulations also add language to clarify that in all instances of qualifying exigency leave the military member must be the spouse, son, daughter, or parent of the employee requesting leave. While the military member must be the spouse, parent, or son or daughter of the eligible employee, the child for whom childcare leave is sought need not be a child of the employee requesting leave. For example, the employee may be the mother of the military member and may need qualifying exigency childcare and school activities leave for the military member’s child.
The DOL proposes to expand the amount of leave an employee may take for Rest and Recuperation qualifying exigency leave from 5 days to equal that provided to the military member, which is up to a maximum of 15 days. The DOL proposes to require that certification of qualifying exigency leave for Rest and Recuperation include a copy of the members Rest and Recuperation leave orders, or other documentation issued by the military, and the dates of the leave.
The DOL proposes to add attending funeral services as an additional example to the activities that are covered by post-deployment leave.
The military family leave amendments provide up to 26 workweeks of leave in a “single 12-month period” for an eligible employee to care for a covered servicemember with a serious injury or illness if the employee is the spouse, son, daughter, parent, or next of kin of the covered servicemember. A veteran will be a covered servicemember if he or she is “undergoing medical treatment, recuperation, or therapy for a serious injury or illness [and the veteran] was a member of the Armed Forces (including a member of the National Guard or Reserves) at any time during the period of 5 years preceding the date on which the veteran undergoes that medical treatment, recuperation, or therapy. Under the proposed regulations, if the leave commences within the five-year period, the employee may continue leave for the applicable “single 12-month period”, even if it extends beyond the five-year period.
The proposed regulations define serious injury or illness for a covered veteran with three alternative definitions. The first alternative basically says that an eligible employee may take military caregiver leave for the same family member based on the same serious injury or illness when the family member is a current member of the Armed Forces and when the family member becomes a covered veteran. The second alternative defines a serious injury or illness for a covered veteran as a physical or mental condition for which the covered veteran has received a Department of Veterans Affairs Service Related Disability Rating of 50% or higher and such rating is based, in whole or part, on the condition precipitating the need for caregiver leave. The DOL proposes to define a serious injury or illness for a covered veteran in the third alternative as a 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 would do so absent treatment.
Under the proposed regulations, if a servicemember is injured in the line of duty on active duty and suffers severe burns, an eligible employee is entitled to 26-workweeks of caregiver leave. If the servicemember later manifests a traumatic brain injury that was incurred in the same incident as the burns, the eligible employee would be entitled to an additional 26-workweeks of leave to care for the same servicemember.
The proposed regulations revise the regulatory language to make it clear that new active duty orders or documentation do not automatically need to be provided; rather new active duty orders or documentation need only be provided upon request by the employer.
The proposed regulations expand the list of authorized providers who can certify a serious health condition for servicemembers to include private health care providers.
The proposed regulations permit an employer to require that the employee or covered servicemember indicate whether the member is a veteran, the date of separation, and whether the separation was other than dishonorable. It also permits the employer to request documentation confirming this information, and permits the employee to provide a copy of the veteran’s DD Form 214 or other proof of veteran status to satisfy such documentation requirement.
The DOL proposes that second and third opinions are not permitted when the certification has been completed by a military health care provider.
Airline Flight Crews
The DOL proposes to base the number of hours that an airline flight crew employee has worked on the employee’s duty hours during the previous 12-month period. Duty hours scheduled means the hours that the individual employee is scheduled to work in the workweek in which FMLA leave is needed.
The DOL proposes to base the leave entitlement and calculation of the employee’s workweek on an average of the greater of the applicable monthly guarantee or actual duty hours worked over the prior 12 months. Under this proposal, the employee’s average workweek would be calculated by adding the greater of the applicable monthly guarantee (the number of hours for which an employer has agreed to pay the employee for any given month) or actual duty hours worked in each of the previous 12 months and dividing by 52 weeks per year. This average workweek would be the basis for FMLA leave usage for the 12-month FMLA leave year. For example, if a reserve flight attendant has worked or been paid an average of 20 hours per week over the prior 12 months, the employee would be entitled to 12 workweeks of 20-hours for FMLA leave (or 26 workweeks in the case of leave to care for a covered servicemember). If the flight attendant needs four hours of FMLA leave in one workweek, the employee would use one-fifth (1/5) of a workweek (4 hours ÷ 20 hours/workweek).
The proposed regulations outline additional records that are required to be kept specific to employers of airline flight crew employees. These additional records include any records or documents that specify the applicable monthly guarantee for each type of employee to whom the guarantee applies, including any relevant collective bargaining agreements or employer policy documents that establish the applicable monthly guarantee; as well as records of hours scheduled