Department of Labor Proposes Amended FMLA Regulations

On January 30, 2012, the U.S. Department of Labor issued a Notice of Proposed Rulemaking seeking to amend the existing Family and Medical Leave Act (FMLA) regulations.  For the most part, the proposed regulations implement statutory changes to the FMLA already enacted in 2009.

Military-Related Leave

The National Defense Authorization Act for Fiscal Year 2010 (FY 2010 NDAA) signed into law on October 28, 2009, amended the FMLA statute to expand the parameters of available leave to eligible family members of those serving in the military for either caregiver leave or exigent circumstances leave.

Formerly, caregiver leave was limited to family members of current service members.  The proposed regulations expand coverage to permit leave for family members of military veterans who experience a serious injury or illness suffered in the line of duty within five years of completing their military service, even if the condition does not arise until after the veteran has left the military.  The proposed regulations also provide a three-part definition of a veteran’s serious injury or illness.  Further, the FY 2010 NDAA and the proposed regulations expand leave opportunities to include circumstances in which the service member aggravates a pre-existing condition in the line of military duty.

Formerly, only family members of National Guard and Reserve members were eligible for exigent circumstances leave.  The proposed regulations implement the FY 2010 NDAA extension of eligibility to family members of service members in the Regular Armed Forces as well.  Further, the proposed regulations require deployment-related exigencies to be triggered only by deployment to a foreign country.

Aviation Flight Crew Eligibility

The Airline Flight Crew Technical Corrections Act (AFCTCA) signed into law on December 21, 2009, amended the FMLA to establish special hours-worked eligibility thresholds for airline flight crews.  Previously, flight crews often did not satisfy the FMLA eligibility requirement of having worked at least 1,250 hours in the prior 12 months given safety restrictions on their flight scheduling.  The proposed regulations implement the AFCTCA’s amendment, which creates a different service threshold for flight crews.  Such employees must work or be paid for not less than 60% of the applicable total monthly guarantee (or its equivalent) and have worked or been paid for not less than 504 hours during the previous 12 months, not including personal commute time or time spent on vacation, medical, or sick leave.  The proposed amendments do not affect eligibility requirement for other airline employees. 

Other Provisions

The proposed regulations also seek to make certain other changes to the FMLA regulations.  For example, the Department of Labor seeks to remove the suggested forms and notices previously appended to the regulations.  This change is proposed to accelerate the process by which these forms and notices can be updated.

Public comments on the proposed regulations must be received by the Department of Labor within 60 days of their publication in the Federal Register.

About Michael Miller

Michael is a Chambers-rated attorney in Briggs and Morgan's Employment, Benefits, and Labor group and is head of the firm’s Employment Law Counseling and Compliance practice group. He has 25 years experience counseling employers to prevent unwanted litigation and advises companies of ongoing changes in federal, state and local employment law. Michael advises employers in all areas of employment law including discipline and discharge, leaves of absence, wage and hour compliance, non-compete and confidentiality agreements, affirmative action plans, background checking, and drug/alcohol testing. For Michael's full bio, click here.

Posted on February 8, 2012, in Family and Medical Leave Act. Bookmark the permalink. Leave a comment.

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