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Guest Blog by Kathryn S. Piscitelli

On February 5, 2013, the U.S. Department of Labor’s Wage & Hour Division issued final amended regulations concerning the Family and Medical Leave Act (FMLA) that include new provisions relating to FMLA rights of servicemembers, military families, and flight crew employees. You can read the new regulations here. I'm happy to report that the Department adopted several suggested revisions from among those NELA submitted last year on the then-proposed amendments.

In particular, NELA’s comments helped shape new regulations relating to the “eligible employee” status of returning servicemembers in two key ways. First, the Department adopted NELA’s recommendation that “eligible employee” be defined to ensure that absences for any type of military service covered by the Uniformed Services Employment and Reemployment Rights Act (USERRA) be credited toward the FMLA’s eligibility requirements of being employed for at least 12 months and on the job for at least 1,250 hours during the 12 months prior to FMLA leave. The proposed and former rules included only National Guard and Reserve duty as creditable towards those requirements, which conflicted with USERRA.

Second, the Department accepted NELA’s recommendation that a returning servicemember’s entire absence due to or necessitated by military service count toward FMLA eligibility requirements. The proposed rule counted only “the period of military service” of a returning servicemember. NELA suggested replacing that phrase with “the period of absence from work due to or necessitated by military service,” to ensure consistency with USERRA. The Department adopted NELA’s recommended language with a slight modification—“the period of absence from work due to or necessitated by USERRA-covered service.”

NELA’s input also influenced new regulations on leave because of a qualifying exigency. NELA alerted the Department to an ambiguity in proposed definitions of “covered active duty” and “call to active duty,” which the Department corrected in the final regulations.

The new regulations contain many other revisions, particularly concerning qualifying exigency leave and military caregiver leave. Regarding qualifying exigency leave, the regulations implement 2009 statutory amendments providing such leave when a family member is called to duty in a regular component of the armed forces, adding a foreign deployment requirement, establishing a new qualifying exigency of parental care, and expanding from 5 to 15 days the time an eligible family member may take for the qualifying exigency of rest and recuperation.

As to military caregiver leave, the new regulations expand such leave to include certain veterans; add pre-existing injuries or illnesses that were aggravated in the line of duty to the definition of “serious injury or illness;” provide a definition for “serious injury or illness of a covered veteran;” and expand the list of possible certifying health care providers.

A new subpart H contains special rules applicable only to airline flight crew employees. These new regulations confirm that an eligible airline flight crew employee with 72 days of FMLA leave during any 12-month period 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 during a single 12-month period.

The regulations also clarify how to calculate intermittent and reduced leave, including making clear that employer may not require an employee to take more FMLA leave than necessary.

As then-Secretary of Labor Hilda L. Solis stated in her remarks regarding the proposed rulemaking, “Today’s proposed expansions of the FMLA will help military families and caregivers tend to wounded, ill and injured service members and veterans without the fear of losing their job while doing so.” NELA stands in solidarity with the Department’s efforts to provide essential workplace protections for members of the armed forces and their families.