The FMLA Blog

DOL Proposes New FMLA Military Family Leave Rules and Solicits Public Comment

On January 30, 2012, the U.S. Department of Labor (DOL) released proposed rules for public comment to implement statutory changes resulting from the National Defense Authorization Act of 2010 (FY 2010 NDAA) and the Airline Flight Crew Technical Corrections Act (AFCTCA). The proposed rules also clarify the meaning of, and make changes to, existing military family leave regulations. They also propose changes to the FMLA regulations generally. 

Military Family Leave

As addressed in previous posts, the FMLA was amended by the FY 2008 and FY 2010 NDAA's to add two new categories of FMLA leave: qualifing exigency leave and militlary care giver leave.  Both categories allow eligible employees of covered employers to take FMLA leave casually releated to the military service of a covered family member. 

Qualifying Exigency (QE) Leave

QE leave allows an eligible employee of a covered employer to take up to 12 workweeks of FMLA leave during a 12-month leave year because of a qualifying exigency arising out of the military service of a covered family member, including short-notice deployment, military events, child care & school activities, financial & legal arrangements, non-medical counseling, rest & recuperation, post-deployment activities, and other mutually agreed upon activities related to the family members military service.  

As originally codified, QE leave was limited to military service in the Reserves and National Guard. Thus, an eligible employee could not take QE leave related to the deployment of a family member serving in the Regular Armed Forces.  The FY 2010 NDAA amended the FMLA to allow eligible employees to take QE leave to for family members serving in the Regular Armed Forces (Army, Navy, Matines, Air Force) provided military service was to a foreign country.  The rules proposed by the DOL update the regulations to reflect the changes resulting from enactment of the FY 2010 NDAA.  The rules also propose to clarify and modify existing QE regulations.  For example-

• QE leave is only available where a covered family member of the Regular Armed Forces or Reserves is deployed to a foreign country.  Prior to FY 2010 NDAA, foreign deployment was not required for QE leave due to call or active duty of a member of the Reserves. 
• The proposal defines "foreign deployment" to include deployment in international waters.
• Clarifies that QE leave is availble for an eligible employee for child care and school activities even if the employee is not the parent of the child of the deployed military member.
• Expands Rest and Recuperation leave from 5 to 15 days during a period of deployment as a better match to DOD practice.
• Permits an employer to require the employee to provide a copy of the R & R order to substantiate the need for QE leave for this purpose.
• Adding attendance at furneral services as a post-deployment activiity covered by QE leave.

 Military Caregiver Leave

Military caregiver leave was created as a new FMLA entitlement by the FY 2008 NDAA amendments.  An eligilble employee of a covered employer who is the a covered servicemember's spouse, son, daugher, parent, or next of kin may take up to 26 workweeks of leave duing a "single 12-month period" to care for a service member receiving treatment for a serious illness or injury incurred inthe line of activie duty.  As orginally enacted, military caregiver leave was limited to current members of the Armed Forces, including Guard and Reserves.  The FY 2010 NDAA amendments expanded military caregiver leave to cover leave to care for certain veterans within 5 years of their duscgage or release from the Armed Forces.  It also amended the definition of "serious illness or injury" to include aggravation of preexisting conditions.  The proposed DOL regulations address these statutory changes.

Interesting aspects of the proposal on this issue include-

• Allowing an eligible employee to continue on military caregiver leave that began before the passage of the five-year period until the end of the single 12-month period.
• Newly defines a qualifying "serious injury or illness" for a veteran to include (1) serious illnesses or injuries suffered while the individual was a current servicemember; (2) as a physical or cmental condition for which the covered veteran has received a VA Servife Related Disability Rating of 50 percent or higher; or (3)  a physical or mental condition that substnatially impairs the veteran's aabilty to secure or follow a substantially gainful occupation by reason of a service-connected disabilty, or would do so absent treatment.
• The DOL is considering adding a fourth alternative definition of "serious illness or injury" involving veterans: enrollment in the VA's Program of Comprehensive Assistance for Family Caregivers.
• Proposes allowing medical certifications from non-military "health care providers." 
• Modifies the medical information that an employer may be entitled to receive to support a request for military caregiver leave.

AFCTCA

Enacted on December 21, 2009, the Airline Flight Crew Technical Corrections Act (AFCTCA) established a special minimum hous of service eligibility requirement for airline clight crew employees.  The legislation was enacted to adapt the 1250 hours of service eligibiltyr equirement to the unique schedules of flight crews which, in some jurisdictions, did not count standby and the time between flights as "hours worked."  As a consequence, airline employees were not eligible for FMLA leave even though they were working full-time schedules.  The proposed rule details the special service requirements unique to the airline industry.  

Additional Proposed Changes

The DOL proposes to make several other interesting changes to the existing FMLA regulations, including:

 

• Eliminate a 2009 regulation permitting employers to charge an employee different minimum increments of intermittent leave during different times of the day if that is the employer's practice for non-FMLA leave in favor of requiring the employer to charge the employee the smallest increment of leave.
• Eliminate a 2009 provision allowing employers to delay an employee's return from FMLA leave where it is  physically impossible (e.g., employee works in a locked clean room and seeks to return mid-shift). 
• Removing the optional-use medical certification and other forms from the regulations, although DOL would continue to encourage their use and make the forms available on their website.

Comments to the proposed regulations are due 60 days after publication in the Federal Register (which has not yet occurred, but is imminent).  You may submit comments, identified by Regulatory Information No. (RIN) 1235-AA03, by electronic submission through the Federal eRulemaking Portal: http://www.regulations.gov.  Follow the instructions for submission. Alternatively, you may submit comments by mail to: Mary Ziegler, Director of the Division of Regulations, Legislation, and Interpretation, Wage and Hour Division, U.S. Department of Labor, Rm. S-3510, Constitution Avenue, NW, Washington DC, 20210. 

Comment:  This is your chance to shape the FMLA regulations.  Serious comments are taken seriously by the DOL.  Speak now or forever hold your peace.  

The DOL proposal may be viewed in its entirety at:   http://www.dol.gov/whd/fmla/NPRM/FMLA_NPRM_2012.pdf

Finally, until adopted, the above are just proposals. The current rules and statutory language continue to apply.       

      

Impact of Proposed Repeal of Defense of Marriage Act on FMLA Leave

On Tuesday, July 19, 2011, the White House announced President Obama's support for repeal of the Defense of Marriage Act (DOMA).  The DOMA defines marriage for purposes of federal benefits, including FMLA leave, as a union between one man and one woman.  DOMA limited the availability of FMLA leave to care for a spouse to heterosexual marriages, thereby excluding same sex marriages and civil unions.  In February of this year the Obama administration announced that it would not longer defend the constitutionality of the DOMA. The recent announcement would repeal the DOMA altogether.

The repeal of the DOMA is contained in the Respect for Marriage Act of 2011, S. 598 and H.R. 1116.  The House and Senate bills are identical. Both would repeal the section of the DOMA defining marriage as the union of one man and one woman.  In its place, the legislation propose the following language:

For purposes of any Federal law in which marital status is a factor, an individual shall be considered married if that individuals marriage is valid in the State where the marriage was entered into or, in the case of a marriage entered into outside any State, if the marriage is valid in the place where entered into and the marriage could have been entered into in a State. 

The proposed legislation defines a "State" to include the District of Columbia, the Commonwealth of Puerto Rico, or any other territory or possession of the United States.

Comment: If enacted, the Respect for Marriage Act would require covered employers to permit FMLA leave to care for a same sex spouse, provided that the marriage was legally recognized in the State where the marriage was entered.  The Respect for Marriage Act does not set a national standard stating that same sex marriages are valid for purposes of the FMLA.  Rather, the Respect for Marriage Act requires employers to look to State law to determine if a marriage is valid.  Curently, a few states recognize same sex marriage.  Many states outlaw same sex marriage.  Some states recognize same sex civil unions or domestic partners, but not same sex marriages.  Because they do not have the same status as marriage, the Respect for Marriage Act as currently written would not require employers to grant FMLA leave to an employee to care for a domestic partner or spouse in a civil union.   

Combined with the Full Faith and Credit Clause of the Constitution, the Respect for Marriage Act requires covered employers with operations in states that do not recognize same sex marriage to nevertheless recognize those marriages as valid for FMLA leave purposes if the marriage was valid in the state where the marriage was entered.  

For example, a same sex couple were legitimately married in New York, a State that recognizes same sex marriage.  The couple thereafter moves to Mississippi for a job opportunity.  Lets assume that Mississippi does not authorize same sex marriages.  All things being equal (e.g., company is covered by the FMLA, employee is eligible for leave, condition meets one or more serious health condition definitions, proper notice and certifications provided, etc.), if the employee of this same sex marriage requests FMLA leave to care for their spouse with a serious health condition, the employer could not deny the leave simply because Mississippi does not recognize same sex marriages.  Because the marriage arose in New York, where it was valid when entered, the couple are married for purposes of FMLA leave.  The Company would process the leave request as it would any other FMLA leave request by an employee to care for a spouse.

Passage of the legislation in the Democrat controlled Senate is likely, even with their thin majority.   During the run-up to the Presidential election, it will be interesting to see how the legislation fares in the Republican-controlled House.  The framing of the bill as something of a States-rights issue may peel some Republicans off their otherwise expected rejection of the proposed  legislation.  The Obama Administration's support of the repeal of the DOMA will also require the Republican Presidential hopefuls to state their position, which may also result in a few surprises.

Stay tuned!     

A link to the Senate bill is provided: http://thomas.loc.gov/cgi-bin/query/C?c112:./temp/~c1120x92ET

NDAA 2011 to Amend USERRA to Permit 2 Weeks of Annual Leave for Family of Deployed Members of the Uniformed Service

Chapter 44 of House Bill (H.R. 5136) of the National Defense Authorization Act of 2011modifies the Uniformed Services Employment and Reemployment Rights Act, 38 USC 4303, et. seq., to require all employers (of any size, including local, state, and the federal government) to permit a spouse, son or daughter, or parent of a member of a uniformed service to take up to two workweeks of leave during any 12-month period where a family member has received notification of an impending call or order to active duty in support of a contingency operation.  The leave may be taken intermittent or or a reduced leave schedule at the discretion of the employee.  Paid leave is available at the discretion of the employer.  Otherwise, the leave is unpaid.  The employee must provide notice of the need for such leave "as is reasonable and practicable."  An employer may require that leave be supported by a certification of entitlement to such leave.  A copy of the notice, call, or order is considered sufficient certification.  An employee has the right to be restored to the position the employee held prior to taking the leave, or to an equivalent position with equivalent rights and benefits.  It is unlawful for an employer to interfere with, restrain, or deny the exercise or attempt to exercise rights under the law.  It is also illegal to discriminate against someone for opposing unlawful practices.   The law would be enforced consistent with USERRA's current structure. 

Comment:  The Senate version of the 2011 National Defense Authorization Act (S. 3454) does not contain a similar provision.  As such, whether the provision survives the House and Senate Conference Committee is anyone's guess.   Stay tuned!

New Flash: DOL to Conduct FMLA Study

Labor Secretary Hilda Solis announced yesterday that the U.S. Department of Labor will conduct a study next year of how families use FMLA leave, as well as "information on regulatory changes, among other things." 

Comment: In the past, DOL studies have been a precursor to regulatory changes.  While there is no mandatory format, past FMLA studies have been a combination of surveys of significant FMLA stakeholders combined with public solicitations of comments.  Interested parties should take this as a "heads-up" to begin to think about and prepare to address what you like about the current regulatory regime, and what you would like to see changed.  The announcement also suggests that the DOL does not intend on making any regulatory changes before the upcoming mid-term elections this November, something of a surprise (at least to me). 

Keep your eye on the ball (er, study) and stay tuned folks!!

FMLA Leave for Domestic Partners: The New Federal Employee Leave Regulations as Stalking Horse

During the last presidential campaign, candidate Obama favored expansion of the FMLA to allow an employee to take job-protected leave to care for a same sex domestic partner suffering with a serious health condition.  Pending legislation (H.R. 3047) seeks to make such a change law. Currently, the Defense of Marriage Act excludes same-sex marriages, including civil unions or domestic partnerships, from FMLA coverage (by defining a "spouse" as member of the opposite sex). 

Given the President's expressed support for changes to the FMLA, and the Democrats control of Congress (at least until mid-term elections this November), it is possible that legislation to modify the FMLA, including the addition of domestic partnerships, might be seriously considered.  With regard to expansion of the FMLA to cover same-sex partnerships, what that legislation might look like may be gleaned from recent regulatory changes made by the US Office of Personnel Management (OPM) allowing some federal employees to take leave (but not FMLA leave) for a domestic partner.  See 75 FR 33491-33497 (June 14, 2010).  The regulations are effective July 14, 2010. 

On June 17, 2009, President Obama directed OPM to clarify that existing employment benefits enjoyed by federal workers extended to same-sex domestic partners.  OPM did so by altering the definition of a "family member" to include a domestic partner in a committed relationship.  The benefits extended included the federal employees ability to use sick leave, funeral leave, voluntary leave transfer, voluntary leave bank, and emergency leave transfer in relation to . 

Domestic partner means an adult in a committed relationship with another adult, including both same-sex and opposite-sex relationships.  Opposite-sex domestic partnerships would cover common law marriages in States that do not recognize common law marriages.  In States that already recognize common law marriages, the inclusion of opposite-sex domestic partnerships suggests coverage for committed relationships that fall short of a common law marriage. 

Committed relationship means one in which the employee, and the domestic partner of the employee, are each other's sole domestic partner (and are not married to or domestic partners with anyone else); and share responsibility for a significant measure of each other's common welfare and financial obligations.  This includes, but is not limited to same-ex and opposite-sex relationships granted legal recognition by a State or the District of Columbia as a marriage or analogous relationship (e.g., civil union). 

OPM rejected suggestions that it issue regulations governing what documentation an agency may request to substantiate a covered domestic partnership.  It noted that agency's typically do not ask for documentation to substantiate leave to prove an employee's relationship with a parent, brother, sister, or spouse.  OPM implied that, absent suspicion of leave abuse, it should follow that practice where an employee claims the need for leave for a domestic partner.  Where leave abuse is suspected, OPM indicated that agencies have the existing authority to request documentation to substantiate a request for leave, and that they should follow the same procedures for all employees where they suspect leave abuse.  

Comment: OPM's definition of a domestic partner in a committed relationship is, in my opinion, needlessly vague and over broad.  Specifically, it is unclear what it means to "share responsibility for a significant measure of each other's common welfare and financial obligations."   The terms are undefined.  Other than rejecting application of the definition to a roommate, OPM fails to give examples to animate the meaning of this key phrase.  Certainly, the phrase applies to common law marriages, civil unions, or domestic partnerships in States that recognize such relationships.  It is unclear, at least to me, why OPM would not adopt a definition that ties the relationship to the attributes of a common law marriage, domestic partnership, or civil union, as those terms have been recognized by some States for years.  Absent such a tether, OPM invites a flood of litigation to flesh out the contours of a committed relationship, particularly in the area above roommate and below recognized common law marriage, civil union, or domestic partnership.  The point of a regulation is to give employers and employees useful guidance so that they know what to expect and can conform their conduct to meet legal obligations.  This regulation, in my opinion, falls short of meeting that standard. 

The above regulatory changes do not apply to the FMLA - yet.  That will require modification of the Defense of Marriage Act (DOMA). If, however, this is any example of the standard to be applied in the event the DOMA and FMLA are modified to include domestic partnerships, employers and employees should be prepared for the tsunami of litigation that will ensue over the level of commitment to the relationship.  The good news is that such a change should make the attorneys very happy. 

    

DOL To Propose Regulatory Changes to FMLA

In the Unified Agenda for April 26, 2010, the DOL announced that it will be proposing regulatory changes to implement the National Defense Authorization Act of 2010, and the Airline Flight Crew Technical Corrections Act, as well as other unspecified revisions, once it completes its review of the subject.  The DOL did not provide a date when it it expected to propose the regulations.  It did, however, indicate that it would publish the revisions for notice-and-comment rulemaking.  The notice may be found at 75 FR 21832 (April 26, 2010). 

Comment:  In addition to regulations implementing the referenced statutory revisions to the FMLA, it is widely expected that the DOL under the current administration will propose revisions to some of the regulatory revisions to the FMLA made during the twilight of the Bush Administration.  In the prior Unified Agenda, the DOL anticipated that it would have the new rules by this November - just in time for mid-term elections.  I find it interesting that the current Unified Agenda omits an expected publication date.  My guess -  and that is all it is- is that we will see new proposed DOL FMLA regulations by this November as fodder for the base. 

Bill Expanding FMLA Coverage for Flight Crews Signed into Law

On Monday, December 21, 2009, President Obama signed into law the Airline Flight Crew Technical Corrections Act.  The legislation extends FMLA coverage to approximately 50,000 airline pilots and flight attendants. Because of the way that airlines calculated work hours, flight crews who frequently travel overnight often did not meet the 1250 work-hours eligibility requirement.  As such, they were not eligible to take FMLA leave.  To rectify that problem, the legislation modified the FMLA work hours requirement for flight crew members.  A flight crew member satisfies the work hours requirement if -

1.   the employee has worked or been paid at least 60 percent of the monthly guarantee for the previous 12-month period; and
2.  the employee has worked or been paid for not less than 504 hours during the previous 12-month period.

The legislation also directs the DOL to issue conforming regulations to implement the legislation.

Comment:  For my taste, the legislation was drafted to narrowly.  The legislation should have addressed the practice and not just the industry.  Other industries in the transportation sector calculate work hours the same as airlines where individuals or crews travel overnight.  Do we really need a railroad crew technical corrections act?  A bus drivers technical corrects act? A long haul trucker technical corrections act? etc.  Congress should have fixed the problem for all industries instead of limiting the fix only to the better organized employees.   

Consensus Suggests that New Military Family Leave Regulations Effective Now

As reported in an earlier post, on October 27, 2009, President Obama signed the 2010 National Defense Authorization Act (2010 NDAA) into law. The 2010 NDAA modified the military family leave provisions of Titles I and II of the FMLA.  As far as I can tell, to date, neither the DOL or OPM have taken an official position regarding the effective date of the amendments.  Based on my review, the consensus of major labor and employment law firms and interested association is that, absent an indication otherwise, the legislation went into effect immediately when President Obama signed it (i.e., October 27, 2009). 

Recall, however, that, at least as far as the DOL was concerned, the 2009 NDAA amendment of the FMLA did not all go into effective immediately.  The DOL took the position that the military caregiver provisions went into effect immediately, but the qualifying exigency leave provisions did not because the statute directed DOL to determine what qualifying exigencies were covered.   

Unless and until the DOL or OPM issue an official statement otherwise, employers would be well-advised to immediately apply the new military family leave provisions.  Until regulations are issued, employers need to do the best they can to comply with the statutory language. 

For federal agency employers covered by Title II, the 2010 NDAA FMLA amendments allow employees to take qualifying exigency leave.  Until OPM issues regulations implementing this right, federal employers should strongly consider applying the Title I regulations on this issue.  The central part of those regulations are codified at 29 CFR 825.112(a)(5), 825.126, and 825.309. 

I offer three thoughts in support of my suggestion.  First, 5 USC 6387 directs the OPM to issue FMLA regulations that are consistent, to the extent appropriate, to the DOL FMLA regulations.  Second, the OPM's recently proposed military family leave regulations are nearly identical to the DOL comparable regulations.  Third, the guidance provided by the DOL regulations is a whole lot better than simply guessing at what might be a qualifying exigency under Title II.

What really needs to happen is that the DOL and OPM need to announce whether the 2010 NDAA FMLA amendments are effective and, if not, when they will be effective (i.e., when regulations are issued).   

  

FMLA To Be Modified Today!

The FMLA will be modified today.  President Obama is set to sign the National Defense Authorization Act of 2010 at 2:30 p.m. EST today. Section 565 of that legislation modifies the FMLA in several important ways:

• Eligible employees will be able to take military caregiver leave for veterans who served in the regular Armed Forces, the Reserves within 5 years of the date the veterans undergoes medical treatment, recuperation, or therapy.  Currently, military caregiver leave is only available to care for current members of the Armed Forces, Guard, or Reserves.
• Military caregiver leave is expanded to cover aggravation of existing or preexisting injuries incurred in the line of duty while on active duty.  Currently, DOL regulations exclude aggravation of existing injuries incurred in the line of duty while on active duty as a basis for taking military caregiver leave.  Only where the serious injury or illness rises to the level of a subsequent injury or illness will an employee be entitled to take military caregiver leave for the same covered servicemember.
• Qualifying exigency leave is expanded to cover members of the regular Armed Forces who are deployed to a foreign country.  Currently, qualifying exigency leave is only available for covered military members in the Reserves or Guard.
• The legislation extend qualifying exigency leave to federal employees covered by Title II of the FMLA.  Currently, federal employees covered by Title II do not have the right to take qualifying exigency leave.

The legislation directs the U.S. Department of Labor and Office of Personnel Management to work with the Secretary's of Defense and the Veterans Administration in formulating regulations to carry out the amendments.  It is unclear whether the legislation is effective immediately or whether it will become effective with the issuance of implementing regulations.  Consultation on this issue with DOL or OPM is highly recommended.

Comment: The legislation effectively implements bills introduced by Senator Dodd (D-CT) and Congressman Woolsey (D-CA)(H.R. 3403, S. 1543).  The amendments should greatly expand the availability and use of military family leave. 

Employers should review and adjust their FMLA leave policies accordingly to reflect the military family leave amendments.  I expect additional expansions of the FMLA in order for President Obama to fulfill his campaign promises to extend FMLA coverage to more employers, and to cover more family members and for more activities (e.g., school functions).  

NEWS FLASH: OPM Issues Proposed Military Family Leave Regulations Covering Federal Employees

On August 26, 2009, the OPM issued proposed FMLA regulations implementing military family leave for purposes of Title II of the FMLA.  The proposed regulations are set forth in 74 Federal Register 43064-43082 (Aug. 26, 2009).  A link to the new regulations is provided below.  

http://frwebgate2.access.gpo.gov/cgi-bin/TEXTgate.cgi?WAISdocID=OvRJay/0/1/0&WAISaction=retrieve

The proposal includes regulations implement a Title II employee's right to take up to 26 administrative workweeks of FMLA leave a year to care for a member of the Armed Forces who is injured in the line of duty while on active duty (military caregiver leave).  It also amends the rules on advancing sick leave, including sick leave that may be substituted for unpaid military caregiver leave.  The OPM is also proposing organizational changes to the existing sick leave and FMLA regulations "to enhance reader understanding and administration of these programs.

SIGNIFICANTLY, the OPM also announced that it was considering whether a comprehensive review of the OPM's FMLA regulations is needed to identify any problems or concerns that stakeholders have encountered.  OPM specifically asks agencies for their recommendations on what significant changes, if any, are needed within the existing OPM FMLA regulatory framework.

Comments regarding the proposed FMLA regulations must be received on or before October 26, 2009. To submit comments, you must use RIN number "3206-AL91."  Comments may be submitted by the following methods:

• Federal eRulmaking Portal: http://www.regulations.gov.  Follow the instructions.
• Mail: Jerome D. Mikowicz, Deputy Associate Director, Center for Pay and Leave Administration, U.S. Office of Personnel Management, Room 7H31, 1900 E Street, NW., Washington DC 20415-8200

For further information, contact: Doris Rippey by telephone at (202) 606-2858; by fax at (202) 606-0824; or by e-mail at pay-performance-policy@opm.gov.

Comment:  Once I review the regulations I will issue another post.  All stakeholders (federal agencies, unions, employee associations, enforcement agencies) are not going to want to pass up the chance to influence the shaping of the Title IIFMLA regulations.  Speak now or forever hold your peace!