Employers should review and revise their employee handbook policy language and re-train human resources and management staff on the Family and Medical Leave Act (FMLA) as it relates to benefits for military family members and flight crews. Specifically, on February 5, 2013, the Department of Labor announced changes to the FMLA amendments under the National Defense Authorization Act of 2010 (NDAA) and the Airline Flight Crew Technical Corrections Act (AFCTCA). Changes add new benefits for military and flight crew. The final rule will take effect on March 8, 2013. (The full text of the final rule is available at http://www.ofr.gov/OFRUpload/OFRData/2013-02383_PI.pdf).

Military Family Leave

Prior to the NDAA, caregiver leave was available only to employees caring for current military members, not veterans. Under the new regulations, the term “military member” (previously referred to as a “covered military member”) now includes covered veterans, members of the National Guard and Reserves and the Regular Armed Forces. Under the new rule, caregiver leave can be taken up to five years after the military member leaves the military. The rule also expands the definition of “serious injury or illness” to an injury or illness that results from a condition that predates the individual's active duty but that was aggravated by the military service.

Further, the final rule creates a new qualifying exigency leave category for child care and school activities of a military member’s son or daughter. Specifically, the military member must be the spouse, son, daughter, or parent of the employee requesting leave in order to qualify for the leave. Further, the child for whom care leave is sought need not be the child of the employee requesting leave.

The final rule adds parental care as a qualifying exigency for which leave may be taken. This leave allowance tracks the child care exigency provision and allows parental care exigency leave for the spouse, parent, son or daughter of a military member for certain care situations as outlined in the Act, when the military member’s parent is incapable of self-care.

The final rule also expands the amount of exigency leave available for spending time with a military member on “rest and recuperation” from five to 15 days.

Airline Flight Crew Family Leave

Prior to the AFCTCA, airline personnel and flight crews could not meet FMLA eligibility criteria because of the way in which their hours were calculated due to their unconventional schedules. Under the FMLA, to be eligible for leave, employees must work at least 1,250 hours in the previous 12-month period. Under the new regulations, an airline flight crew employee (as defined by FAA regulations) will meet the FMLA hours of service eligibility requirement if he or she has worked or been paid for not less than 60 percent of the applicable total monthly guarantee and has worked or been paid for not less than 504 hours during the previous 12 months. This calculation does not include vacation, medical or sick leave nor does it include personal commute time. The new regulations also impose special recordkeeping requirements on employers of airline flight crew employees.

Obermayer labor and employment attorneys are available to provide guidance and assistance on these issues.

The information contained in this publication should not be construed as legal advice, is not a substitute for legal counsel, and should not be relied on as such. For legal advice or answers to specific questions, please contact one of our attorneys.