Feb 13, 2013

Department of Labor Issues Final Rule Expanding FMLA Protections

On February 6, 2013, the U.S. Department of Labor published a final rule implementing amendments to the Family and Medical Leave Act (“FMLA”) made by the 2010 National Defense Authorization Act (“NDAA”) and the Airline Flight Crew Technical Corrections Act (“AFCTCA”). The date of publication was scheduled to coincide with the 20th anniversary of the signing of the FMLA, and the final rule will take effect on March 8, 2013. The final rule expands FMLA regulations relating to military families and airline flight crews.

The first provision qualifies the families of certain military veterans who have serious injuries or illnesses for the same type of FMLA-protected military caregiver leave that was previously available only to the families of current military service members. Military caregiver leave provides eligible employees with 26 weeks of FMLA leave in any 12-month period. Under the final rule, an eligible employee may now take FMLA military caregiver leave to provide care for a family member who is a veteran discharged from the military within the last five years. To qualify, the veteran’s serious illness or injury must have occurred or been aggravated while the veteran was on active duty; although, such an injury or illness that first manifests itself after the veteran leaves active duty is also covered by the final rule. This new definition of serious illness or injury is extended by the final rule to include preexisting conditions that were aggravated by the service member’s active duty service. The final rule also expands the availability of FMLA exigency leave to include family members of regular service members, rather than only the families of Reserve and National Guard members.

The second set of changes implemented by the final rule concerns the annual work hour threshold that airline flight crew members and flight attendants must meet to qualify for FMLA-protected leave. Because of the unique schedules worked by flight crew employees, they often could not meet the necessary hours required to be eligible for the FMLA. These airline employees will now be eligible for FMLA leave if they work or get paid for at least 60 percent of the applicable total monthly guarantee (or its equivalent) and have worked or been paid for at least 504 hours (not including personal commute time or time spent on vacation, medical, or sick leave) during the previous 12 months. Airline employees who are not flight crew employees or flight attendants will continue to be required to meet the general eligibility requirement of 1,250 hours of service in the previous 12 months.

Employers should review their FMLA policies, as the amendments implemented by the final rule will make more employees eligible for FMLA leave. The Department of Labor has published a chart comparing the new 2013 regulations with the previous regulations. The comparison chart may be accessed by clicking here. If you have any questions about these issues, be sure to contact your employment counsel at Smith, Gambrell, & Russell, LLP.

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