Wage and Hour Division (WHD)
Notice of Proposed Rulemaking to Implement Statutory Amendments to the Family and Medical Leave Act
The Family and Medical Leave Act (FMLA) was recently amended to expand the military family leave provisions and to incorporate a special eligibility provision for airline flight crew employees. The U.S. Department of Labor’s Wage and Hour Division has published a Notice of Proposed Rulemaking (NPRM) to implement and interpret statutory amendments to expand the military family leave provisions and to incorporate a special eligibility provision for airline flight crew employees and make some additional regulatory changes.
The FMLA entitles eligible employees of covered employers to take unpaid, job-protected leave for specified family and medical reasons. Eligible employees may take up to twelve workweeks of FMLA leave in a 12-month period for the birth, adoption or placement of a child, to care for a family member with a serious health condition, or because they are unable to work due to their own serious health condition. The FMLA was amended in 2008 to provide an expanded leave entitlement to permit eligible employees who are the spouse, son, daughter, parent, or next of kin of a servicemember (National Guard, Reserves, or Regular Armed Forces) with a serious injury or illness incurred in the line of duty to take up to twenty-six workweeks of FMLA leave during a single 12-month period to care for their family member (military caregiver leave), and to add a special military family leave entitlement to allow eligible employees whose spouse, child, or parent is called up for active duty in the National Guard or Reserves to take up to twelve workweeks of FMLA leave for “qualifying exigencies” related to the call-up of their family member (qualifying exigency leave). The Department issued an earlier set of regulations implementing and interpreting these amendments.
Recent Statutory Amendments to the FMLA
The National Defense Authorization Act for Fiscal Year 2010 recent statutory amendments expanded the FMLA’s military caregiver leave and qualifying exigency leave provisions. The amendments extended military caregiver leave to eligible employees whose family members are recent veterans with serious injuries or illnesses, and expanded the definition of a serious injury or illness to include serious injuries or illnesses that result from preexisting conditions. The amendments also expanded qualifying exigency leave to eligible employees with family members serving in the Regular Armed Forces, and added a requirement that for all qualifying exigency leave the military member must be deployed to a foreign country.
The Airline Flight Crew Technical Corrections Act established a special FMLA hours of service eligibility requirement for airline flight crew members, such as airline pilots and flight attendants, based on the unique scheduling requirements of the airline industry. Under the amendment, an airline flight crew employee 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.
Major Provisions of the FMLA Statutory Amendments NPRM
The major provisions of the NPRM include:
- the extension of military caregiver leave to eligible family members of recent veterans with a serious injury or illness incurred in the line of duty;
- a flexible, three-part definition for serious injury or illness of a veteran;
- the extension of military caregiver leave to cover serious injuries or illnesses for both current servicemembers and veterans that result from the aggravation during military service of a preexisting condition;
- the extension of qualifying exigency leave to eligible employees with covered family members serving in the Regular Armed Forces;
- inclusion of a foreign deployment requirement for qualifying exigency leave for the deployment of all servicemembers (National Guard, Reserves, Regular Armed Forces);
- the addition of a special hours of service eligibility requirement for airline flight crew employees; and
- the addition of specific provisions for calculating the amount of FMLA leave used by airline flight crew employees.
Interested parties are invited to submit written comments on the proposed rule. Because of the interest that has been expressed and the department’s desire to obtain as much information about its proposal as possible, the comment period has been extended through April 30, 2012. To view the proposed rule and submit comments, visit the federal e-rulemaking portal at http://www.regulations.gov and search by regulation identification number 1235-AA03.
Additional Information on the NPRM:
- Notice of Proposed Rulemaking
- Frequently Asked Questions (TEXT, PDF)
- Fact Sheet: Proposed Rulemaking to Implement Statutory Amendments to the Family and Medical Leave Act (TEXT, PDF)
- Fact Sheet: Proposed Changes to the Family and Medical Leave Act Military Family Leave Provisions (TEXT, PDF)
Additional Information on the FMLA Pertaining to Military Families and Airline Flight Crews
- FMLA Airline Flight Crew Technical Corrections Act Guidance
- FMLA NDAA 2008 Guidance
- FMLA NDAA 2010 Guidance
- FY2008 NDAA Military Leave FAQs (PDF)
- Fact Sheet: The Family and Medical Leave Act Military Leave Entitlements
- WH-380-E Certification of Health Care Provider for Employee’s Serious Health Condition (PDF)
- WH-380-F Certification of Health Care Provider for Family Member’s Serious Health Condition (PDF)
- WH-381 Notice of Eligibility and Rights & Responsibilities (PDF)
- WH-382 Designation Notice (PDF)
- WH-384 Certification of Qualifying Exigency For Military Family Leave (PDF)
- WH-385 Certification for Serious Injury or Illness of Covered Servicemember -- for Military Family Leave (PDF)
- Current Regulations
For additional information on the FMLA, including information on the military family leave entitlements, please visit www.dol.gov/whd/fmla.