DOL Issues Final Rule Implementing Amendments to FMLA

Practical Law Legal Update 3-523-9900 (Approx. 4 pages)

DOL Issues Final Rule Implementing Amendments to FMLA

by PLC Labor & Employment

FMLA Military Leave

The NDAA expanded the FMLA's military leave provisions by:

Allowing family members of active regular armed forces members, in addition to the family of Reserve and National Guard members, to take leave for qualifying exigencies.
Extending military caregiver leave to:
- include care for certain veterans. Previously, this leave was only available to family of current service members; and
- cover serious injuries or illnesses that result from the aggravation during military service of a preexisting condition for both current servicemembers and veterans.

The final rule:

Expands military caregiver leave to care for covered veterans in accordance with the NDAA.
Provides a flexible four-part definition for serious injury or illness.
Provides a two-part definition for covered veteran.
Interprets the five-year period of eligibility for a covered veteran to exclude the period between the enactment of the NDAA on October 28, 2009 and March 8, 2013, the day the rule is effective.
Increases the amount of leave an employee may take to be with a covered family member for rest and recuperation purposes from five days to 15 days.
Creates a new qualifying exigency leave category for parental care.
Expands the list of authorized health care providers from whom an employee may obtain a certification of the servicemember's serious injury or illness to include authorized health care providers as defined in 29 C.F.R. 825.125.
Permits an employer to request a second and third opinion for medical certifications obtained from a health care provider who is not affiliated with the:
- Department of Defense;
- Department of Veterans Affairs; or
- TRICARE network.

FMLA Leave for Airline Flight Crews

This final rule also amends the regulations to implement the AFCTCA, which established a special FMLA leave eligibility requirement for airline flight crews. Intended to address the special circumstances of flight crew workers whose unusual work schedules were often insufficient to satisfy the FMLA's 1250-hour annual threshold for leave, the AFCTCA amended the FMLA's eligibility rules to permit flight crew employees to meet the hours of service requirement if, during the previous 12-month period, they have worked or been paid both:

For at least 60% of the applicable monthly guarantee.
For at least 504 hours.

The final rule:

Adopts a uniform leave entitlement for airline flight crew employees of:
- 72 days for one or more of the FMLA-qualifying reasons set forth in 29 C.F.R. §§ 825.112(a)(1)-(5); and
- 156 days of military caregiver leave under 29 C.F.R. § 825.112(a)(6).
Provides that employers must account for an airline flight crew employee's FMLA leave usage utilizing an increment no greater than one day.
Includes special recordkeeping requirements applicable to the employers of airline flight crew employees.
Relocates the special rules applicable only to airline flight crew employees and their employers to revised Subpart H of the FMLA.

Additional Changes

In addition to the military leave provisions and the airline flight crew provisions, the final rule:

Clarifies the rules for calculation of intermittent or reduced schedule FMLA leave, including clarifying regulatory language regarding increments of leave and providing additional explanation of the physical impossibility rule.
Updates FMLA optional use forms and creates a new optional use form for the certification of a serious injury or illness for a veteran.
Makes other changes to ensure consistency with other statutes.

DOL Issues Final Rule Implementing Amendments to FMLA | Practical Law