Airline Industry Legal Alert: DOL Issues Final FMLA Crewmember Regulations

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Executive Summary:  At long last the Department of Labor has issued final regulations implementing the Airline Flight Crew Technical Corrections Act (AFCTCA), which established new standards for airline flight crewmembers to qualify for FMLA leave.  These regulations have been released over two years after President Obama signed this legislation into law and resolve much uncertainty in the industry over how these new standards impact established FMLA programs.

There are five (5) significant components of these regulations: (1) explanation of the new crewmember eligibility standards; (2) establishment of a uniform FMLA leave bank for crewmembers; (3) implementation of a new manner of calculating crewmember FMLA leave usage; (4) retention of the "physical impossibility exception," which permits extending FMLA leave when crewmembers cannot immediately be returned to service; and (5) establishment of unique recordkeeping obligations.

(1) Flight Crew Eligibility Standards

The AFCTCA established special hours-of-service FMLA eligibility requirements for airline flight crewmembers: during the previous 12 months a crewmember must have worked or been paid for (1) 60 percent of his or her monthly guarantee AND (2) 504 hours (which must not include personal commute time or time spent on vacation, medical, or sick leave) in order to be eligible to take FMLA leave.

The AFCTCA provided that the "monthly guarantee" is the minimum number of hours that a carrier has agreed to schedule a lineholder and to pay a reservist.

The new regulations clarify that the proper measure of a crewmember's hours "worked" is duty hours, not flight or block hours.  Although the regulations do not define "duty hours," DOL commentary suggests that they include pre- and post-flight duties as well as training time. 

(2) Flight Crew Leave Bank

One of the regulations' most significant provisions is the establishment of a uniform bank of 72 days of FMLA leave for crewmembers to use over the carrier's 12-month FMLA period.  The bank is based on the Federal Aviation Regulation (FAR) that mandates a maximum 6-day duty period for crewmembers.  Multiplying this maximum 6-day duty period by the universal 12 weeks of FMLA leave yields the 72-day bank. 

This is a significant deviation from traditional FMLA methodology, which bases FMLA banks on an average of actual time worked for those employees with fluctuating schedules.  This provision may significantly expand FMLA leave benefits for crewmembers and entitle them to more leave than a carrier's other employees. 

The regulation also establishes a 156-day crewmember leave bank (within a single 12-month period) for military caregiver leave purposes.  This calculation is based on the same FAR 6-day duty period, but represents the 26-workweek entitlement afforded for military caregiver leave. 

(3) Flight Crew Utilization Calculations

Another significant provision of the regulations is the authorization of charging crewmembers in full-day increments for FMLA leave taken on an intermittent or reduced schedule basis.  Previously carriers may have been required to charge crewmembers in increments of an hour, or less, depending on the carrier's broader leave practices. 

This provision relieves what has traditionally been a huge burden in the administration of FMLA leave.  It also should be easier for crewmembers to understand and manage.

(4) Retention of Physical Impossibility Exception

The final regulations leave intact (after threatening removal of) an exception to the general rule that employee leave banks may not be charged more time than the employee is absent from work for an FMLA-related reason.  The "physical impossibility exception" permits employers to charge employees with more FMLA leave than they requested or needed where it is "physically impossible" to restore them to their original job or to assign them to alternate work. 

This exception is particularly applicable to crewmembers because of the unique nature of their jobs.  Crewmembers usually cannot be rejoined with their original trip at the time they are ready to return from FMLA leave, and sometimes they also cannot be immediately placed on reserve or are not called to work another flight while on reserve.  In these instances, the physical impossibility exception may authorize a carrier to charge the crewmember's leave bank for additional FMLA time until the crewmember can be returned to service. 

DOL commentary warns, however, that it does not consider contractual or other scheduling restrictions to be lawful reasons to delay a crewmember's return to her trip or to equivalent duty.  Thus, seniority restrictions that delay or prevent a crewmember's reinstatement to her original or equivalent duty do not justify the extension of her FMLA leave. 

(5) Crewmember Recordkeeping Obligations

In addition to the FMLA's existing recordkeeping obligations, which continue to apply to crewmembers, an air carrier must also maintain (1) documentation of crewmembers' monthly guarantee (which in most instances means copies of applicable collective bargaining agreements), and (2) records of hours worked and hours paid for purposes of verifying a crewmember's duty hours.

Like the existing FMLA recordkeeping obligations, these records need only be maintained and made available to the DOL in the event of an inspection or investigation.

Effective Date and Resource Materials

These new regulations are effective on March 8, 2013.

The DOL republished the entirety of its FMLA regulations with this rulemaking.  They can be found at http://www.dol.gov/whd/fmla/2013rule (Click on "Final Rule" under Additional Information and Guidance.)  The crewmember regulations are located in a new Subpart H ("Special Rules Applicable to Airline Flight Crew Employees") at Sections 825.800-803  The physical impossibility exception is located at Section 825.205(a)(2). 

The DOL has published two Fact Sheets discussing the crewmember amendments.  They can be found at http://www.dol.gov/whd/fmla/2013rule/fs-airline.htm and http://www.dol.gov/whd/regs/compliance/whdfs28j.htm.  Also helpful are a list of Frequently Asked Questions about this rulemaking, found at http://www.dol.gov/whd/fmla/2013rule/militaryFR_FAQs.htm, and a Side-by-Side Comparison of Current/Final Regulations, found at http://www.dol.gov/whd/fmla/2013rule/comparison.htm

If you have any questions about the new FMLA crewmember regulations or their application to existing FMLA programs, please contact Sarah Wimberly, a partner in our Atlanta office and member of FordHarrison's Airline Industry practice group, at swimberly@fordharrison.com, or 404-888-3842, or the FordHarrison attorney with whom you usually work.