Lawyer Article

On February 5, 2013, exactly twenty years after the Family and Medical Leave Act (FMLA) was signed into law by President Bill Clinton, the Department of Labor (DOL) issued a Final Rule amending the FMLA regulations and expanding protection for airline personnel and families of military service members.  The Final Rule is a result of two statutory amendments to the FMLA: (1) the Airline Flight Crew Technical Corrections Act of 2009, and (2) the National Defense Authorization Act for Fiscal Year 2010.

 

 

            The Final Rule amends the FMLA regulations to incorporate the Airline Flight Crew Technical Corrections Act of 2009, which establishes FMLA eligibility requirements unique to airline flight attendants and flight personnel. Due to the particular scheduling requirements of the airline industry, flight personnel have had a difficult time qualifying for leave under the FMLA. Under the new regulations, there are special FMLA hours of service eligibility requirements for airline flight crew. For example, an airline flight crew employee will qualify for FMLA leave if he has worked at least 60 percent of the applicable total monthly guarantee and he has worked at least 504 hours in the previous 12 months. 

 

 

            In addition, the Final Rule plays a significant role in developing regulations that further extend protection to military families. First, FMLA leave for a qualifying “exigency leave” is now available to family members of the Regular Armed Forces (active duty military) and is no longer limited to those individuals in the Reserves or National Guard. However, under the new regulations, leave is only permitted when the military member has been deployed to a foreign country. Second, military caregiver leave was expanded to allow family members to obtain leave to take care of a veteran with a serious injury or illness. Previously, only family members of active duty military could take caregiver leave. In order to qualify for leave, the veteran must have left active duty within 5 years of the date when the FMLA is requested. Furthermore, military caregiver leave may be taken for an injury or illness that existed prior to the military service as long as it can be shown that the injury or illness was aggravated in the line of active duty.   These are the most significant changes to the types of military leave permitted under the FMLA.

 

While these new regulations do not take effect until March 8, 2013, several of the statutory amendments regarding military leave are already enforceable against employers. Accordingly, employers need to take the following steps: (1) revise the employer’s FMLA policy to reflect the new regulations; (2) start using the new FMLA poster by March 7, 2013, which can be found at http://www.dol.gov/whd/regs/compliance/posters/fmlaen.pdf; and (3) train managers on the new FMLA regulations. For assistance on the FMLA, contact your labor and employment attorney, or you can reach Jill Benson of Womble Carlyle at (336) 574-8095 or jibenson@wcsr.com.