Within the last few weeks, the Department of Labor has released new proposed regulations for the Family and Medical Leave Act (FMLA) that would expand military family leave and clarify eligibility for flight crew members to ensure increased protection. Since the proposal date, the DOL is accepting public comment for sixty days, after which the DOL will review the comments and decide whether to incorporate them into the regulations. Finally, the DOL will release the regulations in their final form.
One of the proposed changes applies to qualified exigency leave. Initially, the FMLA applied only to those employees whose family members enlisted in the National Guard or Reserves were called to active duty. This type of leave enabled those employees to handle certain practical personal matters when their family member was called to active duty.
In 2009 Congress expanded this protection to also include employees whose family members are enlisted in the regular Armed Forces, but this leave only applied when the family member was deployed to a foreign country. The proposed regulations not only reflect these changes, but also lengthened the amount of leave available to an employee whose family member is on rest and recuperation leave (R and R) from five to fifteen days, based on the length of the family member’s R and R.
Finally, the regulations clarify that exigency leave includes an employee taking leave to handle school or childcare issues that arise from the deployment of a spouse, child, or parent. Essentially, employees may take leave to assist children who are not their own. By the very words of the regulations, if the employee’s child is deployed, the employee may take qualifying exigency leave to sort out childcare and educational needs for their grandchild.
The proposed regulations also effect military caregiver leave. Generally employees are entitled to twenty-six weeks of leave to care for family members who suffered a serious illness or injury while on active military duty. Congress has expanded this entitlement in two ways now covering: (1) individuals who have pre-existing injuries or illnesses that were aggravated by their military duty, and (2) veterans who were discharged or released under conditions that were not dishonorable within the past five years.
The proposed regulations also define the terms “serious injury or illness” for veterans and propose certification requirements for this type of leave.
The DOL has made several interpretive statements in the wake of the proposed regulations. The 26 week leave provision has been interpreted to entitle employees to leave on a per service member, per injury requirement. Essentially, an employee gets only 1 period of leave, unless a different family member meets the injury requirements or the same family member is subsequently injured again. However, the DOL has muddied the waters of this provision by stating that it believes employees should receive 2 leave periods for the same family member – first when the family member is an active military member, and again when the family member achieves veteran status. The DOL has clearly stated that employers are not yet required to offer leave to employees for veteran family members, because, to date, no final regulations have been adopted.
The final changes also affect flight crew coverage. Congress created different rules to determine eligibility for flight crew members who often were excluded due to the varied interpretation of the 1,250 hour requirement. The proposed regulations incorporate the changed eligibility standards as well as changes in calculating how much leave an employee has actually taken.
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