Proposed Rule Would Affect Family and Medical Leave Act

The Department of Labor (DOL) recently announced a proposed rule that would implement amendments to the Family and Medical Leave Act (FMLA). The rule would affect the FMLA in two ways: expanding the leave entitlement for military caregivers and creating special eligibility provisions for airline flight crew employees. 

In 2008, two special military family leave entitlements were added to the FMLA:

• Military caregiver leave: Eligible employees who are the spouse, son, daughter, parent or next of kin of a service member (National Guard, Reserves or Regular Armed Forces) with a serious injury or illness incurred in the line of duty may take up to 26 workweeks of FMLA leave during a single 12-month period to care for their family member
• Qualifying exigency leave: Eligible employees whose spouse, child or parent is called up for active duty in the National Guard or Reserves may take up to 12 workweeks of FMLA leave for “qualifying exigencies” related to the call-up of their family member.

In 2009, President Obama signed the National Defense Authorization Act for FY 2010 and the Airline Flight Crew Technical Corrections Act into law. Both laws provide expanded leave entitlements.

The DOL’s proposed revisions are intended to implement and interpret these amendments, as well as make additional regulatory changes. The proposed language would make several significant changes to existing law: 

• Expanding military caregiver leave to family members of veterans for up to five years after leaving the military. At this time, the leave only covers family members of those service members who are “currently serving” and not veterans.
•  Expanding the definition of “serious injury or illness” for military caregiver leave to include pre-existing conditions that are aggravated in the line of duty.
• Expanding qualifying exigency leave to employees whose family members serve in the Regular Armed Forces. Currently, the law only covers family members of National Guard members and reservists.
• Adding a new statutory requirement that the military member must be deployed to a foreign country in order for eligible family members to take qualifying exigency leave.

The DOL’s proposed rule also seeks to implement earlier FMLA amendments relating to airline flight crews. The proposed revisions make the benefits of the FMLA more accessible to airline flight crew employees by adding special hours of service eligibility requirements and specific direction for calculating the amount of FMLA leave used. The revisions are intended to take into account the uniqueness of the hours worked by airline crews and the difficulty in tracking these hours.

For more information about the proposed revisions, the DOL created a website, which includes a Fact Sheet and a set of Frequently Asked Questions.

DOL is encouraging public comments. Once the rule is published in the federal register, interested parties may submit comments, identified by Regulatory Information Number (RIN) 1235-AA03, by electronic submission through the Federal eRulemaking Portalhttp://www.regulations.gov. Follow instructions for submitting comments.

Interested parties may also submit comments by mail. Address written submissions to Mary Ziegler, Director of the Division of Regulations, Legislation, and Interpretation, Wage and Hour Division, U.S. Department of Labor, Room S-3510, 200 Constitution Avenue, N.W., Washington, D.C. 20210.

Author: Gail Cecchettini Whaley, CalChamber Employment Law Editor/Staff Counsel

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