The U.S. Department of Labor has amended the Family Medical Leave Act (“FMLA”) to expand leave available to military family members and airline flight crew employees. The expansion is expected to affect more than 91 million workers working for 1.2 million employers.
Military Family Members
Qualifying Exigency Leave
Employees eligible for FMLA are entitled to take up to 12 weeks of leave for a qualifying exigency, which includes the following categories: (1) short notice deployment, (2) military events and related activities, (3) childcare and school activities, (4) financial and legal arrangements, (5) counseling, (6) rest and recuperation (“R&R”), (7) post-deployment activities, and (8) additional activities agreed to by the employer and employee. Under the 2013 amendments, R&R leave is expanded to 15 days from five days, and the list of required information for certification of such leave is expanded to include documentation issued by the military setting forth the dates of the military member’s R&R leave.
The 2013 expansion also adds a new category of exigency leave: parental care leave. Eligible employees may now take leave to care for a military member’s parent when the care is necessitated by the military member’s deployment to a foreign country, and when the parent is incapable of self-care. Types of parental care include arranging for alternative care, providing care on an immediate need basis, admitting or transferring the parent to a care facility, or attending meetings with staff at a care facility.
Military Caregiver Leave
Under FMLA’s military caregiver leave, eligible employees (i.e., employees who are the spouse, child, parent, or next of kind of a servicemember) may take up to 26 weeks of leave to care for a covered servicemember undergoing medical treatment, recuperation, or therapy for a serious injury or illness. The Department of Labor has expanded the list of healthcare providers who are authorized to complete a certification for military caregiver leave to include healthcare providers who are not affiliated with the Department of Defense, the Department of Veterans Affairs, or TRICARE.
Under the 2013 amendments, FMLA’s definition of “covered servicemember” is expanded from current member of the Armed Forces, including National Guard and Reserve members, to include covered veterans, i.e., those released or honorably discharged at any time during the five-year period prior to the employee’s taking FMLA leave to care for the veteran. Additionally, “serious injury or illness” is expanded to include not only those injuries or illnesses incurred in the line of duty by a member on active duty that may render the servicemember medically unfit to perform his or her duties, but also injuries or illnesses which existed before the beginning of the servicemember’s active duty, and were aggravated by service in the line of duty.
For veterans, the definition of “serious illness or injury” also includes those physical or mental conditions for which the veteran has received a Veterans Affairs Service Related Disability Rating of 50% or greater, or a physical or mental condition that substantially impairs the veteran’s ability to secure or maintain gainful occupation, or an injury, including a psychological injury, on the basis of which the veteran has been enrolled in the Department of Veterans Affairs Program of Comprehensive Assistance for Family Caregivers.
Airline Flight Crew Employees
The FMLA has special provisions for airline flight crew employees (i.e., flight crew members and flight attendants). The 2013 amendments to FMLA set forth these provisions in Subpart H: Special Rules Applicable to Airline Flight Crew Employees.
An airline flight crew employee meets FMLA’s hours of service requirement, and is eligible for FMLA, if, during the previous 12-month period, the airline flight crew employee has worked or been paid for not less than 60% of the applicable monthly guarantee and has worked or been paid for not less than 504 hours, excluding commute time, vacation, or sick or medical leave.
An eligible airline flight crew employee is entitled to 72 days of leave during a single 12-month period for all FMLA-qualifying reasons other than military caregiver leave, and 156 days for military caregiver leave.