Yesterday, the Department of Labor published its proposed regulations (pdf) to address the recently enacted changes to military leave and eligibility requirements for flight crew members. Beyond the changes detailed below, the DOL clarified that employers are not required to provide employees with FMLA-protected military caregiver leave for the "serious injury or illness of a veteran" until final rules defining that term are issued. However, employers are required to comply with the expansion of qualifying exigency leave for foreign deployment of a family member in the regular Armed Services, in addition to the leave already available for family members of Reservists and members of the National Guard.
Highlights of the Proposed Regulations:
Qualifying Exigency Leave
- Expanded to allow qualifying exigency leave for qualifying family members of individuals who serve in the regular armed services
- Addition of a foreign deployment requirement associated with the active duty for which exigency leave is requested
- Expanded leave available (from 5 to 15 days) for qualifying family members of servicemembers on rest and recuperation leave
Military Caregiver Leave
- Expanded to allow military caregiver leave for qualifying family members of individuals who serve in the regular armed services and to recent veterans
- Definition of "serious injury or illness"
- Expanded to include conditions that existed before the servicemember joined the military or served active duty but were aggravated in the line of duty
- For veterans, defined to include any of the following: (1) conditions that occurred while the veteran served and continued after the veteran’s discharge; (2) physical or mental conditions for which the veteran has received a VA Service Related Disability Rating of 50% or higher; or (3) any injury or illness of similar severity as (1) or (2) that substantially impairs the veteran’s ability to secure or follow a substantially gainful occupation by reason of a service-connected disability, or would do so absent treatment.
Flight Crew Employees
- Hours of service eligibility criteria: Flight crew employees must meet at least 60% of the applicable monthly guarantee and must have worked or been paid for at least 504 hours (not including personal commute time or time spent on vacation, sick leave or medical leave)
- Calculation of leave taken: Includes specific calculations for leave usage with different methods for "line holders" and flight crew members on reserve status.
- "Physical impossibility": The proposed rules clarify that the physical impossibility provision is to be used only in limited circumstances where, as applied to flight crew members, there are truly no flights available to restore the employee returning from FMLA leave. In such cases, the employer may count the delay to return the employee to work due to physical impossibility against the flight crew member’s FMLA entitlement. However, the DOL is considering removing the "physical impossibility" requirement from the regulations altogether if it finds that employers have applying the provision more broadly than intended.
Note that these are proposed regulations not requiring employer compliance at this time—the DOL will collect comments from the public for the next 60 days, and after those comments are collected, the DOL will issue final rules that employers will be required to follow.
FMLA Model Forms and Notices:
As we reported previously, the optional FMLA forms supplied by the DOL expired on December 31, 2011. On Monday of this week, they reissued the identical forms as published before (available here) under a new expiration date of February 28, 2015. These forms still do not include the GINA safe harbor language we recommended in our previous post, nor do they account for the 2010 changes for military exigency leave. So they remain less than ideal, but at least are no longer past their expiration date.
At the same time, in the proposed rules published yesterday, the DOL stated that it intends to remove its current model forms and notices from the regulations’ Appendices entirely, and to issue a revised FMLA poster and model forms and notices to reflect the final changes to the regulations that result from their latest proposal.