Military Caregivers, Airline Crews Get Expanded FMLA Eligibility under DOL Rule

by Ballard Spahr LLP
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Last week was the 20th anniversary of the Family and Medical Leave Act (FMLA), and the U.S. Department of Labor (DOL) marked the occasion by publishing a Final Rule that broadens the FMLA’s reach. Following regulations proposed last year, the Final Rule amends FMLA regulations to, among other things, expand the availability of qualifying exigency leave and military caregiver leave and to address FMLA eligibility requirements for airline flight crew members. 

These changes are in line with amendments to the FMLA made by the National Defense Authorization Act for Fiscal Year 2010, and with the Airline Flight Crew Technical Corrections Act (AFCTCA). Both Acts, passed by Congress in late 2009, were silent on the effective dates of the amendments, creating some debate. Under the Final Rule, the amendments, to the extent they were not fully effective before, will become effective on March 8, 2013.   

Military Service Member Caregiver

Historically, FMLA military caregiver leave entitled an eligible employee who is the spouse, parent, son, daughter, or next of kin of a covered servicemember with a serious illness or injury to take up to a total of 26 workweeks of unpaid, job-protected leave during any single 12-month period to care for the servicemember. The Final Rule expands this leave to the family members of “covered veterans” who are receiving medical treatment, recuperation, or therapy for a “serious injury or illness.”

Under the Final Rule, a “covered veteran” is an individual who was a member of the Armed Forces and was discharged or released under conditions other than dishonorable at any time during the five-year period before the first date the eligible employee takes FMLA leave to care for the covered veteran. The covered veteran’s serious injury or illness can have  manifested itself  before or after the member became a veteran, but must also meet one of four other criteria. It must be:

  • 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 his or her office, grade, rank, or rating
  • A physical or mental condition for which the covered veteran has received a U.S. Department of Veterans Affairs Service-Related Disability Rating of 50 percent or greater based on the same condition
  • A physical or mental condition that substantially impairs the covered veteran’s ability to secure or follow a substantially gainful occupation due to a disability or disabilities related to military service, or
  • An injury, including a psychological injury, on the basis of which the covered veteran has been enrolled in the Department of Veterans Affairs Program of Comprehensive Assistance for Family Caregivers   

Further, for all covered servicemembers, current and veteran, the Final Rule expands the definition of serious injury or illness to include conditions that existed before the beginning of active duty and were aggravated by service in the line of duty, rather than simply those that were initially incurred in the line of duty while on active duty in the Armed Forces.

Qualifying Exigency Leave

The FMLA also has permitted eligible employees with a spouse, son, daughter, or parent who was a retiree of the Regular Armed Forces, or a retiree or member of various Reserve units or a National Guard member, to take FMLA leave to deal with a number of “qualifying exigencies” that relate to the relative’s federal active duty or a federal call to active duty in support of a contingency operation. Examples of “qualifying exigencies” include addressing financial and legal issues, arranging child care throughout the deployment, and attending military events.

The Final Rule expands that FMLA leave entitlement significantly, extending it to cover qualifying exigencies that relate to any foreign deployment of any member of the Regular Armed Forces. It is no longer limited to retirees, Reserve members, or National Guard members, and no longer limited to wartime calls to duty.

In addition, the Final Rule adds “parental care” to the list of “qualifying exigencies,” recognizing the reality that elder care responsibilities are borne by many eligible employees. The Final Rule also expands the amount of rest and recuperation leave that an eligible employee may take from the current limit of five days to a maximum of 15 calendar days. 

Airline Flight Crew Amendments

The Final Rule gives a larger number of airline employees access to protected leave under the FMLA by taking their unique circumstances into consideration. Due to the unconventional work schedules required for airline flight crews, many pilots and flight attendants historically failed to meet FMLA’ s eligibility requirement that they actually work at least 1,250 hours in the 12 months before their FMLA leave. That equates to 60 percent of a typical 40-hour workweek.

Under the Final Rule, airline flight crew employees are eligible for FMLA-protected leave if during the 12 months before their leave they have worked or been paid for at least 60 percent of their “applicable monthly guarantee” and have worked or been paid for at least 504 hours. The “applicable monthly guarantee” for an airline flight crew employee who is not on reserve status is the minimum number of hours for which the employer agreed to schedule that employee for any given month. For a flight crew member who is on reserve status, the applicable monthly guarantee is the number of hours for which the employer agreed to pay the employee for any given month.

Assuming eligibility as calculated above, the flight crew member is eligible for 72 days of FMLA leave during any 12-month period for a traditional FMLA leave, and is eligible for 156 days of military caregiver leave during a single 12-month period to care for a covered servicemember with a serious injury or illness.

Other Changes and Resources

The DOL’s Final Rule also clarifies the calculation of intermittent or reduced schedule leave, clarifies leave increment language, further explains the physical impossibility rule, updates the FMLA optional use forms (WH-380, WH-381, WH-382, WH-384, WH-385) and creates a new optional use form for certification of a serious injury or illness for a veteran (WH-385-V). 

The DOL has provided an FAQ page, updated FMLA poster, and revised Certification for Serious Injury or Illness of a Veteran for Military Caregiver Leave, Form WH-385-V. It has also republished the full set of FMLA regulations with the Final Rule changes incorporated, as part of its publication of the Final Rule.

The DOL requires all FMLA-covered employers to display the updated FMLA poster in the workplace no later than March 8, 2013. The updated poster reflects the changes in the Final Rule, including clarification on military leave entitlements, the expanded definition of “covered veterans” and “serious injury or illness,” and notice regarding the special hours of service eligibility requirements that apply to airline flight crew employees.

If you have questions on the Final Rule and its implications for your organization, or any other aspects of the FMLA, please contact Elisabeth R. Blattner-Thompson at 801.517.6844 or blattnerthompsone@ballardspahr.com, Nicole M. Sugarman at 215.864.8330 or sugarmann@ballardspahr.com, or the member of the Labor and Employment Group with whom you work.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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