In an announcement made yesterday by First Lady Michelle Obama and Labor Secretary Hilda Solis, the U.S. Department of Labor has introduced proposed regulations implementing and interpreting two sets of Family and Medical Leave Act (FMLA) amendments from 2009 that expand leave entitlement for military caregivers and airline flight crew members.

Military Service Member Caregiver and Qualifying Exigency Leave

Proposed regulations relating to military caregivers seek to provide job security and peace of mind to military families and caregivers tending to wounded, ill, and injured service members and veterans. While the FMLA already provided for military caregiver leave and qualifying exigency leave for family members of the National Guard and Reserves, the proposed regulations extend the exigency leave provisions to include family members of the regular U.S. Armed Forces. All covered service members are now required to be deployed to a foreign country in order for their family members to be eligible for exigency leave. Additionally, the proposed regulations expand the FMLA leave that an eligible employee may take during a military family member’s rest and recuperation from five to 15 days.

For the first time, the proposed regulations would expand caregiver leave coverage beyond active service members to include care for eligible veterans discharged within the five years preceding treatment. For both active duty service members and covered veterans, caregiver leave would be extended to cover serious injuries or illnesses resulting from a pre-existing condition aggravated in the line of duty. The scope of what may constitute a “serious injury or illness” has been clarified in a three-part definition, and health care providers that are unaffiliated with the military would now be eligible to provide a medical certification.

Airline Flight Crew Amendments

The second set of amendments would allow a larger number of airline employees access to protected leave under the FMLA by taking their unique circumstances into consideration. Due to the unconventional work schedules required for airline flight crews, many pilots and flight attendants fail to meet the requisite 1,250 hours worked in the previous 12-month period, which equates to 60 percent of a typical 40-hour workweek. The proposed rules apply the 60 percent standard to members of airline flight crews.

Under the statutory amendments, airline flight crew employees will be eligible for FMLA protected leave if they have worked or been paid for at least 60 percent of the applicable total monthly guarantee and have worked or been paid for at least 504 hours during the 12 months prior to their leave. This calculation of hours to determine eligibility under the FMLA will not include personal commute time or time spent on vacation, medical, or sick leave.

The Notice of Proposed Rulemaking detailing the amendments’ implementation has not yet been published in the Federal Register. Comments to the proposed rules are due within 60 days of its publication.

If you have questions on the proposed rule and the implications for your organization, please contact Brian D. Pedrow at 215.864.8108 or, or the member of the Labor and Employment Group with whom you work.


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