Final FMLA Regulations Now in Effect

The final regulations explain military caregiver rules for veterans, expand qualifying exigency leave, and more.

Last month, the Department of Labor’s new regulations implementing legislative changes to the Family Medical Leave Act (FMLA) went into effect. The final regulations implement several key changes to the law, based on legislation Congress passed in 2010. The changes

  • tweak the rules for calculating eligibility and hours for flight attendants and crew members
  • expand military caregiver leave to employees with a family member whose preexisting illness or injury was aggravated on active military duty, and employees with a family member who is a veteran suffering from a serious service-related injury or illness, and
  • make a few modifications to the qualifying exigency leave requirements.

Flight Crews and Flight Attendants

Congress passed legislation in 2010 to try to solve a couple of problems in counting hours for flight attendants and flight crews (collectively referred to in the regulations as “airline flight crew employees”). The final regulations implement these changes:

  • Counting hours worked. Other employees must have worked at least 1,250 hours in the past 12 months to be eligible for FMLA leave. However, airline flight crew employees meet the hours-worked requirement if they work or have been paid for at least 60% of their applicable month guarantee and at least 504 hours in the past 12 months.
  • Counting FMLA leave. Intermittent leave can be tough for airline flight crew employees. They’re either on the plane or not: They can’t magically rejoin a flight after taking an hour or two off. The final regulations address this by giving these employees a daily leave entitlement, rather than hourly. Airline flight crew employees may take up to 72 days of FMLA leave, or up to 156 days of military caregiver leave, during a 12-month period. For intermittent leave, the employer may account for the leave in increments of up to one day. (Other employees are entitled to use leave in much smaller increments.)

Military Caregiver Leave

The final regulations expand the military family members for whom an employee may take leave in two ways. First, the regulations now include military family members with serious illnesses or injuries that predate their military service, but were aggravated by that service.

Second, the regulations now cover veterans with serious illnesses or injuries. A veteran is covered if he or she:

  • was a member of the Armed Forces (including the National Guard or Reserves)
  • was discharged or released from service under conditions other than dishonorable, and
  • was discharged with the five-year period before the employee first takes FMLA leave to care for him or her. This five-year period does not include the period between October 28, 2009 (when Congress expanded the FMLA to include veterans) and March 8, 2013 (the date the final rule became effective). During this time, the Department of Labor took the position that employers did not have to offer leave to care for veterans, because so many details remained to be worked out in the final rule. So, employers must exclude this period when determining whether the five-year time limit has been met.

As is true of current members of the military, a veteran’s serious illness or injury may be incurred on active duty or may be a preexisting injury that is aggravated by military service. The illness or injury may manifest before or after the family member becomes a veteran, and must fit into one of these categories:

  • a continuation of a serious injury or illness that was incurred or aggravated when the veteran was serving in the military and made the veteran unable to perform his or her military duties
  • a physical or mental condition for which the veteran has received a Department of Veterans Affairs Service-Related Disability Rating (VASRD) of 50% or greater
  • a physical or mental condition that substantially impairs the veteran’s ability to work because of a disability related to military service (or would do so absent treatment), or
  • an injury (including a psychological injury) for which the veteran is enrolled in the VA’s Program of Comprehensive Assistance for Family Caregivers.

Qualifying Exigency Leave

The final rules implement a key change Congress enacted in 2010. Formerly, only employees with family members in the National Guard or Reserves who had been called to active duty could take qualifying exigency leave. This protection has now been extended to employees whose family members are serving in the regular Armed Forces. Whether the family member is in the Guard, Reserves, or regular military, the employee is entitled to qualifying exigency leave only if the family member is deployed to a foreign country.

The final regulations extend the time an employee may take off to spend with a military family member on rest and recuperation leave, from five to fifteen days. The regulations also add a new category of qualifying exigency leave. An employee may take time off to provide certain types of assistance to a military family member’s parent who is incapable of caring for him- or herself, such as moving the parent to a new care facility, attending meetings with hospice or social service providers, or arranging for alternative care for the parent.