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.
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: https://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: https://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.