DOL Issues Final Rule Expanding FMLA Protections For Families Of Eligible Veterans, Airline Personnel

The Department of Labor has issued a final rule implementing expansion of FMLA provisions for families of certain veterans and for airline personnel. The final rule was published in the February 6 Federal Register.

Military caregiver provision. The final rule expands the definition of serious injury or illness to include preexisting injuries or illnesses of current service members that were aggravated in the line of duty, and expands military caregiver leave to care for covered veterans. Under the rule, a covered veteran is defined as someone undergoing medical treatment, recuperation, or therapy for a serious injury or illness who was discharged or released at any time during the five-year period prior to the first date the employee took FMLA leave to care for the covered veteran. That period excludes the period between the enactment of the FY 2010 NDAA on Oct. 28, 2009, and the effective date of this final rule. This is intended to protect the military caregiver leave entitlement of family members of veterans whose five-year period has either expired or has been diminished during that time.

The rule defines a serious injury or illness of a covered veteran as “(i) a continuation of a serious injury or illness that was incurred or aggravated when the covered veteran was a member of the Armed Forces and rendered the servicemember unable to perform the duties of the servicemember’s office, grade, rank, or rating; (ii) a physical or mental condition for which the covered veteran has received a Department of Veterans Affairs Service Related Disability Rating (VASRD) of 50 percent or higher, and such VASRD rating is based, in whole or in part, on the condition precipitating the need for military caregiver leave; (iii) a physical or mental condition that substantially impairs the covered veteran’s ability to secure or follow a substantially gainful occupation by reason of a disability or disabilities related to military service, or would do so absent treatment; or (iv) an injury, including a psychological injury, on the basis of which the covered veteran has been enrolled in the Department of Veterans Affairs Program of Comprehensive Assistance for Family Caregivers.”

The rule also increases the length of time an eligible family member make take for the qualifying exigency leave reason of Rest and Recuperation from five days to up to a maximum of 15 days to match the military member’s Rest and Recuperation leave orders.

Airline personnel. This final rule also implements the amendments made to the FMLA by the Airline Flight Crew Technical Corrections Act (AFCTCA). Among other things, it adopts a uniform entitlement for airline flight crew employees of 72 days of leave for one or more of the FMLA-qualifying reasons set forth in Secs. 825.112(a)(1)-(5) and 156 days of military caregiver leave under Sec.825.112(a)(6). Under the rule, employers must account for an airline flight crew employee’s FMLA leave usage utilizing an increment no greater than one day. The rule amends current regulations to implement the AFCTCA, which creates eligibility requirements specifically for airline flight crewmembers and flight attendants for FMLA leave. That Act also authorizes the DOL to issue regulations regarding the calculation of leave for such employees as well as special recordkeeping requirements for their employers. In addition, the rule clarifies changes about the calculation of intermittent or reduced schedule FMLA leave.

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