A couple of weeks ago, the Department of Labor released proposed regulatory changes to the Family and Medical Leave Act (FMLA). These changes would update the existing regulations to take into account two statutes passed in the last couple of years: One expands military family leave in several ways; the other clarifies eligibility requirements for flight crew members to ensure that more of them are able to take advantage of the law’s protections.

Here are some of the changes covered in the proposed regulations:

Qualifying exigency leave. Originally, employees with family members in the National Guard or Reserves were eligible for FMLA leave to handle certain practical matters when their family member was called to active military duty. In 2009, Congress expanded this protection to also cover employees with family members who are in the regular Armed Forces. It also made clear that this leave provision applied only to employees whose family members were deployed to a foreign country. The regulations reflect these changes. They also extend the amount of leave available to an employee who family member is on rest and recuperation leave (“R and R”) from five to 15 days, depending on the length of the family member’s R and R. Finally, the regulations clarify that an employee may take qualifying exigency leave to handle school and childcare matters arising out of the deployment of a spouse, child, or parent. In other words, the child who needs assistance need not be the employee’s child. If the employee’s parent is deployed, for example, the employee could take qualifying exigency leave to sort out childcare for a younger sibling.

Military caregiver leave.¬†Employees are entitled to 26 weeks of leave to care for a family member who suffers a serious illness or injury while on active military duty. Congress expanded this entitlement in two important ways. First, someone who has a pre-existing injury or illness that is aggravated by active military duty is now covered. Second, veterans (those who were discharged or released from the military, under conditions other than dishonorable, in the past five years) are also covered. The proposed regulations define what constitutes a serious injury or illness for a veteran, propose to measure the five-year time limit backwards from the first date the employee takes leave, and propose changes to the certification requirements for this type of leave, to reflect that injured service members and veterans may be seeing private healthcare providers rather than using the military healthcare system. The Department of Labor is seeking comment on these changes, as well as on how it should define a pre-existing condition aggravated by military service, particularly given the military’s rigorous enlistment requirements that would presumably screen out many such conditions. In addition, the Department made a couple of very interesting statements in the proposed regulations on leave to care for a veteran:

  • The 26-week leave provision has been interpreted as a per service member, per injury requirement. In other words, an employee gets only a single period of leave unless a different family member is injured while on military duty or the same family member is injured again. The Department has shaken this up a bit by stating that it believes employees would be entitled to two leave periods for the same family member, once while the family member is still in the military and once after the family member becomes a veteran. It isn’t clear whether the Department intends that the injury must be different to entitle the employee to a second leave (for example, if the family member suffered a physical injury and then later developed PTSD).
  • The Department has taken the position that employers are not currently required to offer leave for employees to care for a veteran family member. Congress directed the Department to define, through regulations, what constitutes a serious injury or illness for a veteran. Because no final regulations yet address this issue, the Department has determined that the provision isn’t yet enforceable.

Flight crew coverage. Congress created different rules to measure employee eligibility for flight crew members, who were being excluded due to the way the 1,250 hours requirement was being interpreted. The regulations include these changes, as well as changes in how much leave an employee has taken is calculated.

These regulations are proposed, which means that the Department is accepting public comments for 60 days. The Department will then review the comments it receives, decide whether to incorporate them into (or otherwise modify) its regulations, then release the regulations in final form. Until that happens, these regulations aren’t legally enforceable.