DOL Proposed Rulemaking Expands FMLA Regulations to Implement New Statutory Requirements
February 2, 2012
By Iris Tilley

On Monday, the Department of Labor announced plans to publish a Notice of Proposed Rulemaking to expand military leave protections and incorporate special eligibility provisions for airline flight crew employees under the Family and Medical Leave Act (FMLA). The proposed regulations are designed to implement recent statutory amendments to FMLA. The Notice of Proposed Rulemaking has not yet been published in the Federal Register, but following its publication, employers will have 60 days to comment. Information on where and how to comment can be found on the Notice of Proposed Rulemaking.

Major provisions of the proposed rulemaking include:

Amendments to Military Family Leave

• Expands coverage for military caregiver leave to include care for covered veterans with a serious illness or injury to allow for a 26-week leave entitlement;
• Like the recent statutory amendment, the proposed rulemaking allows for coverage to care for veterans who have been discharged within the preceding five years;
• Expands military caregiver leave to cover serious injuries or illness that result from the aggravation of a preexisting condition in the line of duty for both active duty service members and covered veterans;
• Extends qualifying exigency leave to include employees whose family members serve in the Regular Armed Forces (in addition to the National Guard and Reserves);
• Expands the amount of time an employee may take to spend with a service member on rest and recuperation leave from five days to up to fifteen days; and
• Like the recent statutory amendment, includes the requirement that the employee's family member must be deployed to a foreign country to qualify for exigency leave.

Amendments for Airline Flight Crew Employees

• Implements a new special minimum hours of service eligibility requirement for airline flight crew employeesairline flight crew employees are now eligible for FMLA if they have worked and been paid for not less than 60 percent of the applicable total monthly guarantee and have worked or been paid for not less than 504 hours during the 12 months prior to leave.

While the proposed rules are unlikely to take effect for some time, now is a good time for employers to check their military leave policies to ensure that they comply with current FMLA requirements as well as state law.

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