On February 5, 2013, the U.S. Department of Labor (DOL) issued its Final Rule implementing important expansions of the Family and Medical Leave Act (FMLA) relating to the military leave provisions and the eligibility for and calculation of FMLA for certain airline personnel. These regulatory changes implement and interpret statutory amendments to the FMLA pursuant to the National Defense Authorization Act for Fiscal Year 2010 (FY 2010 NDAA) and the Airline Flight Crew Technical Corrections Act (AFCTCA). The Final Rule also clarifies the manner in which employers calculate an employee's use of intermittent FMLA leave, as well as reiterates an employer's obligation to comply with the confidentiality provisions of the Genetic Information Nondiscrimination Act of 2008 (GINA). The full text of the Final Rule appears in the Federal Register, Vol. 78, No. 25 (February 6, 2013).1
Expansion of Qualifying Exigency Leave
Regular Armed Forces Personnel Are Covered
As previously reported here,2 in 2008, the FMLA was amended to permit eligible employees to take leave because of a qualifying exigency that arises out of the active duty or call to active duty of an employee's spouse, child or parent who is a member of the National Guard or Reserves components. The FY 2010 NDAA amended the FMLA to permit an eligible employee to take leave for any qualifying exigency arising out of the fact that the employee's spouse, child or parent is on covered active duty or has been notified of an impending call or order to covered active duty in the Armed Forces, thus expanding the availability of qualifying exigency leave to include family members of the Regular Armed Forces. The Final Rule revises the FMLA regulations to correspond to the expanded availability of leave for qualifying exigencies related to members of the Regular Armed Forces.
Foreign Deployment Requirement
The FY 2010 NDAA also added the condition that the military member's deployment be to a foreign country in order for an eligible employee to take qualifying exigency leave. The Final Rule defines "deployment" of the member with the Armed Forces to a foreign country as "deployment to areas outside of the United States, the District of Columbia, or any Territory or possession of the United States, including deployment in international waters."3
Categories of Qualifying Exigencies
Before the Final Rule, the FMLA regulations contained a list of eight circumstances qualifying for exigency leave: short-notice deployment, military events and related activities, childcare and school activities, financial and legal arrangements, counseling, rest and recuperation, post-deployment activities and additional activities. The Final Rule modifies several of these circumstances and adds a ninth circumstance for which an employee may take qualifying exigency leave:
The Final Rule clarifies the provision regarding leave for childcare and school activities by confirming that 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.
The Final Rule also extends the period of time in which an employee may take Rest and Recuperation leave during a period of deployment from five days to 15 days.
Post-deployment activities to address issues that arise from the death of a military member while on covered active duty now includes attending funeral services as an example of an activity for which an employee may take leave.
Finally, and most notably, the Final Rule creates a new circumstance under which an employee may take qualifying exigency leave. An eligible employee may take parental care leave to provide care for the parent of a military member, or someone who stood in loco parentis to the military member, when the parent is incapable of self-care and the need for leave arises out of the military member's covered active duty.
Expansion of Military Caregiver Leave
Coverage of Veterans
The FY 2010 NDAA further expanded the definition of covered servicemember to include veterans who were active members of the military within the five year period before the eligible employee first takes military caregiver leave. In addition, it changed the definition of serious injury or illness, for both current members of the Armed Forces as well as certain veterans, to include preexisting conditions that were aggravated by service in the military. The FY 2010 NDAA was silent, however, on the definition of a serious injury or illness of a covered veteran and directed the DOL to define this term.
The Final Rule now defines a serious injury or illness of a covered veteran as an injury or illness that was incurred by the veteran in the line of duty on active duty in the Armed Forces or that existed before the veteran's active duty and was aggravated by service in the line of duty on active duty and that manifested itself either before or after becoming a veteran, and that is either:
Only one of these definitions need to be met by a veteran in order for the eligible employee to demonstrate that the veteran has a serious injury or illness.
Healthcare Provider Certification
The Final Rule expands the list of authorized healthcare providers from whom an employee may obtain a certification of the covered servicemember's serious injury or illness to include a healthcare provider who is not affiliated with the military. In the event a healthcare provider not associated with the military provides the medical certification, an employer may now secure a second (or third) opinion. The Final Rule retains, however, the existing prohibition that an employer may not get a second or a third opinion where the medical certification is provided by a healthcare provider associated with the military. In no case is an employer permitted to secure a recertification of an employee’s need for military caregiver leave.
Enhancements to Guidelines for Airline Personnel
The FMLA's general employee eligibility criteria require an employee to: be employed by his/her employer for a total of at least 12 months; be employed for at least 1,250 hours of service in the 12-month period immediately preceding the commencement of the leave; and work at a worksite where 50 or more employees work within 75 miles.
The AFCTCA altered the hours of service eligibility requirements for airline flight crew employees to take into account their unconventional work schedules. Under the AFCTCA, the hours of service eligibility criteria is met if, during the applicable 12-month period, the airline flight crew employee has worked or has been paid for not less than 60 percent of the applicable monthly guarantee and has worked or been paid for not less than 504 hours (not including personal commute time or time spent on vacation leave or sick or medical leave).
The Final Rule provides guidance on the terms "applicable monthly guarantee" and "hours" for purposes of determining the hours of service requirement. The "applicable monthly guarantee" for an airline flight crew employee who is not on reserve status is the minimum number of hours for which an employer has agreed to schedule such employee for any given month. The "applicable monthly guarantee" or an airline flight crew employee who is on reserve status is the number of hours for which an employer has agreed to pay the employee for any given month. Under the Final Rule, the determination of "hours" is based on the industry concept of "duty hours," which includes not just actual flight time, but also support duties that begin before a flight takes place and after it lands.
The Final Rule also includes special rules on the calculation of leave. Eligible airline flight crew employees are entitled to 72 days of leave for one or more of the FMLA-qualifying reasons, with the exception of military caregiver leave, for which an eligible employee will be able to take 156 days of FMLA leave during the applicable 12-month period. The Final Rule also dictates that when an airline flight crew employee takes intermittent or reduced schedule FMLA leave, an employer must account for the leave using an increment no greater than one day.
Clarification of the Calculation of Intermittent/Reduced Schedule FMLA Leave
The DOL did not make any substantive changes to the manner in which an employer calculates an employee's use of intermittent or reduced schedule FMLA leave. However, the Final Rule clarifies that an employer may not require an employee to take more leave than necessary to address the circumstances that precipitated the need for leave. The Final Rule also reiterates that an employer must account for FMLA leave in an increment no greater than the smallest increment the employer uses to account for any other forms of leave, so long as it is not greater than one hour.
The Physical Impossibility Rule
Additionally, the Final Rule limits application of the "physical impossibility rule" introduced in the 2009 FMLA regulations. The physical impossibility rule permits an employer to delay reinstatement where it is physically impossible for the employee to return to his or her job mid-shift. Although there was some discussion during the notice and comment period as to whether this rule should be removed from the regulations because employers have misinterpreted the concept of physical impossibility to apply to circumstances where it is merely inconvenient to reinstate the employee mid-shift, the DOL retained the rule and adopted language emphasizing that it shall "apply solely to situations in which it is truly physically impossible to return the employee to work."5
Consistency with GINA
The Final Rule also provides that if the Genetic Information Nondiscrimination Act of 2008 (GINA) is applicable, FMLA related records (e.g., certifications, recertifications, medical histories) containing family medical history or genetic information must be maintained consistently with the confidentiality requirements of GINA.
Changes to Model FMLA Forms
As anticipated, the Final Rule removes the model forms from the FMLA regulations' appendices to enable the DOL to more expeditiously amend its forms in response to statutory and other changes and to avoid the confusion of having updated forms on the Wage and Hour Division's (WHD) website, but not in the regulations. The forms will continue to be made available on the WHD website, including as revisions are made in accordance with the Final Rule.
Effective Date of Final Rule
The regulatory changes in the Final Rule will not take effect until 30 days after the Final Rule was published, including with respect to an eligible employee's ability to take military caregiver leave for covered veterans and the calculation of FMLA leave for airline flight crew employees. Notably, however, other aspects of the military leave provisions, such as with respect to qualifying exigency leave and military caregiver leave to care for a current servicemember due to the aggravation of a preexisting condition, as well as the hours of service eligibility criteria for FMLA leave taken by airline flight crew employee, are already in effect.
For Further Information
If you have questions regarding the Final Rule or FMLA and leaves of absence policies, please contact any of the attorneys in our Employment, Labor, Benefits and Immigration Practice Group or the attorney in the firm with whom you are regularly in contact.
"U.S. Department of Labor Proposes FMLA Regulatory Changes: It's Not Just About the Military Leave Provisions," Duane Morris Alert, March 7, 2012.
29 C.F.R. Sec. 825.126(a)(3).
29 C.F.R. 825.127(c)(2)(i)-(iv).
78 F.R. 8869.