DOL Issues New Proposed FMLA Regulations for Military Leaves and Airline Flight Crews

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1 Issue DOL Issues New Proposed FMLA Regulations for Military Leaves and Airline Flight Crews The Wage and Hour Division of the Department of Labor (DOL) released a Notice of Proposed Rulemaking (NPRM) on January 30, This NPRM implements the changes made by the 2010 National Defense Authorization Act (2010 NDAA) enacted on December 21, 2009 and the Airline Flight Crew Technical Corrections Act (AFCTCA) enacted on October 28, Changes affecting veterans will not become effective until the DOL issues final regulations. While AFCTCA changes affecting flight crew members became effective on October 28, 2009, the DOL has stated that it will exercise discretion is assessing employer compliance until it issues a final rule. A summary of the major changes contained in the DOL s NPRM follows. Military Caregiver Leave Employers subject to the FMLA (generally those with 50 or more employees) must permit an eligible employee to take an unpaid military caregiver leave in order to care for a covered servicemember if the employee is the servicemember s spouse, son, daughter, parent, or next-of-kin and the servicemember has a serious injury or illness arising out of the fact that the servicemember is on covered active duty or called to covered active duty status. Unlike other FMLA leaves which are limited to 12 weeks in a 12- month time period, military caregiver leave may be up to 26 weeks. The 2010 NDAA amendment made two significant changes: 1. It expanded the definition of a covered servicemember to include recent veterans. A covered veteran is defined as a veteran who is undergoing medical treatment, recuperation or therapy for a serious injury or illness, including an injury or illness that existed prior to the beginning of the veteran s active duty but was aggravated by service in the line of duty on active duty in the Armed Forces. The veteran s discharge must have been other than dishonorable and effective during the 5-year period prior to the date the leave is to begin. Thus, this may exclude veterans of prior conflicts such as Gulf War veterans, but may include certain veterans of the War in Afghanistan and Operation Iraqi Freedom, depending upon the veteran s discharge date and the date the eligible employee s leave is to begin. 2. It modified the definition of a serious injury or illness for active servicemembers to include an injury or illness that existed before the servicemember began service, but was aggravated in the line of duty on active duty. The definition would include both conditions that were noted at the time of entrance into active service and conditions that the military was unaware of at the time of entrance, but that are later determined to have existed at that time. A pre-existing injury or illness generally will be considered to have been aggravated by service in the line of duty on active duty where there is an increase in the severity of the injury or illness other than the normal progression of the injury or illness Gallagher Benefit Services, Inc.

2 The NPRM modifies the definition of serious injury or illness to recognize different circumstances of a recent veteran compared to those of an active duty servicemember. Serious Injury or illness for a Veteran The DOL proposes the use of three alternative definitions of serious injury or illness for a veteran: 1. A serious injury or illness of a current servicemember that continues after the servicemember becomes a veteran; 2. A physical or mental condition for which the covered veteran has received a Department of Veteran Affairs Service Related Disability Rating (VASRD) of 50% or higher based on the condition precipitating the need for caregiver leave (e.g., severe burns, amputations, posttraumatic stress disorder). In general, this type of injury or illness substantially impairs a veteran s ability to secure or follow a substantially gainful occupation by reason of a serviceconnected disability; or 3. An injury or illness that is not technically within the first two definitions, but is of similar severity which the DOL defines as a physical or mental condition that substantially impairs the veteran s ability to secure or follow a substantially gainful occupation by reason of a serviceconnected disability, or would do so absent treatment. The DOL s intent is to replicate the VASRD 50% disability rating standard in situations in which the veteran does not have a VASRD rating from the VA. The DOL expects that private health care providers will make determinations in a manner similar to those they make for Social Security Disability or Workers Compensation claims. For example, a covered veteran with post-traumatic stress disorder, who is normally able to work, may experience an event triggering anxiety and depression making the veteran unable to work absent treatment, may need the care of a family member. The NPRM mentions, but does not include, a fourth definition being considered by the DOL enrollment in the VA s Program of Comprehensive Assistance for Family Caregivers. This program is generally available to veterans who have incurred (or had aggravated) a serious injury in the line of duty after September 11, Medical Certification for Military Caregiver Leave The NPRM contains an expanded list of health care providers who may provide the necessary medical certification to support a military caregiver leave under FMLA. The DOL noted two reasons for developing this list for veterans. First, some covered veterans may no longer be eligible to seek care through a Department of Defense (DOD) or Veterans Affairs (VA) affiliated health care provider. Second, veterans may have private health coverage through an employer s plan or a spouse s plan. The existing provider list includes only four categories of health care providers for medical certification: 1. DOD health care provider 2. VA health care provider 3. TRICARE network authorized provider 4. TRICARE non-network authorized provider The DOL proposes adding to the list of authorized health care providers for medical certification of a Page 2 Issue

3 military caregiver leave to include the list currently used for non-military FMLA leaves. This list includes: A doctor of medicine or osteopathy; or Any other person determined by the DOL to be capable of providing health care services. Others capable of providing medical care services include only: Podiatrists, dentists, clinical psychologists, optometrists, and chiropractors (limited to treatment consisting of manual manipulation of the spine to correct a subluxation as demonstrated by an x-ray); Nurse practitioners, nurse-midwives, clinical social workers and physician assistants; Christian Scientist Practitioners listed with the First Church of Christ, Scientist in Boston, Massachusetts; and Any health care provider from whom an employer or the employer s group health plan s benefits manager will accept certification of the existence of a serious health condition. One practical issue that arises is that non-military affiliated health care providers may not have the specialized information needed to make any military-related determinations that is available to DOD, VA and TRICARE network providers. For example, a health care provider not affiliated with t-he DOD, VA or TRICARE may not have sufficient knowledge to determine if an injury or illness may render a covered servicemember medically unfit to perform the duties of the servicemember s office, grade, rank or rating. It may also be difficult for a non-military affiliated health care provider to determine if active duty aggravated an existing injury or illness. In these situations, the health care provider may need to obtain this type of information from the DOD or VA. The health care provider will be permitted to rely on military-related determinations from an authorized DOD or VA representative. Employers may not request a second or third opinion if the medical certification is provided by a DOD, VA or authorized TRICARE health care provider. Employers will be permitted to require a second or third opinion for a military caregiver leave if the medical certification is from any other provider as long as the employer uses the same rules for non-military leaves. Employers may require confirmation of the employee s relationship to the servicemember and copies of certain military documents such as a copy of DD Form 214, which contains a veteran s date of separation from the service and whether the separation was other than dishonorable. The employer will not, however, be permitted to penalize an employee for administrative delays in the issuance of military documents if the employee has been diligent and made a good-faith effort to obtain the needed military documents. More than One Military Leave The DOL also noted that an employee may be able to take more than one military leave for the same servicemember and same injury or illness. An employee may be able to take up to 26 weeks of leave while the covered servicemember is a current member of the Armed Forces and later another 26 weeks when the servicemember is a covered veteran. The employee would still be limited to 26 weeks in any single 12-month period. In addition, an employee may be able to take up to 26 weeks for care for the same covered servicemember with a subsequent serious injury or illness. The DOL notes that the subsequent serious injury or illness of the same covered servicemember could arise either from an injury or illness incurred by a current member in a subsequent deployment, or from a subsequent manifestation of a second serious injury illness (current member or veteran) that relates back to the initial incident. For example, if the servicemember suffers severe burns, the employee may be entitled to leave. If the servicemember later manifests a traumatic brain injury that was incurred in Page 3 Issue

4 the same incident as the burns, the employee may be entitled to additional leave (up to 26 weeks). Qualifying Exigency Leave The need for a qualifying exigency leave may arise out of the fact that the employee s spouse, son, daughter or parent is a military servicemember on active duty or call to active duty status. Initially these leaves were limited to servicemembers in the Reserves and National Guard. The 2010 NDAA made two significant changes. First, it expanded the definition of a covered servicemember to include individuals in the Regular Armed Forces. Second, it added a requirement that the deployment be in a foreign country. The NPRM includes international waters in the definition of a foreign country so that servicemembers in the Navy and Coast Guard will be treated in a manner similar to servicemembers in other branches of the service. Another significant change is a proposed expansion of the maximum period of leave available for a qualifying exigency leave that is for Rest & Recuperation (R&R). Currently, a maximum of 5 calendar days is available. Under the proposed rules, the amount of leave available will be equal to the amount of R&R leave for the servicemember up to a maximum of 15 days. Employers will be permitted to require a copy of the R&R orders which indicate the specific leave period. Employers may require confirmation of the employee s relationship to the servicemember and copies of certain military documents such as the servicemember s covered active duty orders (or other military document) when the employee first requests leave. The military documentation will indicate if the member is on active duty or call to covered active duty status along with the dates of the servicemember s covered active service and the location of the deployment. Airline Flight Crew Rules The Airline Flight Crew Technical Correction Act (AFCTCA) modified the hourly requirement for airline flight crew members - pilots, co-pilots, flight attendants and flight engineers. (Airline employees other than flight crew members must satisfy the 1,250 hours during the last 12 months requirement.) Flight crew members are FMLA eligible if they have either worked or been paid for at least 60% of the monthly guarantee amount and have worked or been paid for at least 504 hours during the previous 12-month period. The modified standard was created by Congress to adjust for the fact that flight crew members may be paid based on actual in-flight hours rather than every hour spent on the job. Additional time spent at work such as time between flights (e.g., layovers and overnight stays) may not be paid time. The DOL s proposed regulations provide guidance on calculating hours for FMLA for airline flight crew members for both leave entitlement and leave usage. The NPRM proposes using duty hours to determine hours worked for FMLA eligibility and leave entitlement even though duty hours may not always reflect hours worked under the Fair Labor Standards Act (FLSA). Duty hours include flight time and certain pre and post-flight duties based on the employer s policies and any applicable collective bargaining agreement. Personal commute time, vacation, medical and sick leave time do not count toward the 504 hours required. The DOL s proposed rules establish two calculations methods one for reserve status employees and one for non-reserve status employees called line holders. Flight crew members typically have different schedules based on their seniority and status as either a line holder or reserve crew member. Reserve status employees generally have a minimum number of hours for which they will be paid while line holders have a minimum number of hours for which they will be scheduled. This minimum monthly amount or hours paid or scheduled is the minimum monthly guarantee. For flight crew employees who are line holders, the calculation of leave usage will be based on the employee s scheduled workweek, which is the total of the scheduled duty hours for that workweek. For Page 4 Issue

5 airline flight crew employees on reserve status, the calculation would be based on an average of the greater of the applicable monthly guarantee (the number of hours for which an employer has agreed to pay the employee for any given month) or actual duty hours worked in each of the previous 12 months divided by 52 weeks per year. In some cases a flight crew member who is a line holder, may also be on reserve status. In the preamble, the DOL proposes using the reserve status method of calculation for these employees. Employers will be required to keep certain additional records with information specific to flight crew employees, such as a record of scheduled hours for line holders. Other Changes and Clarification The NPRM also clarifies some of the current regulations and makes modest changes to several others including: Clarification the increments of time that may be used for intermittent or reduced schedule leave are generally no greater than one hour and must be less if the employer uses a shorter time period for other types of leave. This general rule has been reworded for clarification and moved from the preamble to the text of the regulation. Clarification the language used for the physical impossibility rule is modified to clarify that it is to be interpreted narrowly. Under this rule, an employer may require an employee to take more than the minimum amount of leave needed because it is physically impossible to restore the employee to the same position at an earlier time. The original intention was that this rule would apply in limited situations such as those involving a clean room or an airline flight where it would be physically impossible to begin or end the leave in the middle of a flight. The DOL is concerned that some employers have interpreted this provision to apply to situations where restoration is physically possible, but inconvenient to the employer. They are considering eliminating the physical impossibility provision. Clarification text describing how an employer is to calculate leave for an employee on an intermittent or reduced leave schedule has been modified and moved from the preamble to the regulations. The language clarifies that the employee s actual workweek is the basis of leave entitlement. For example, if an employee who would otherwise work 40 hours takes a leave for 8 hours, the employee would use one-fifth (1/5) of a week of FMLA leave. Mandatory overtime is also part of the leave calculation. Thus, if an employee would normally be required to work overtime, but is unable to do so because of an FMLA-qualifying reason that limits the employee s ability to work overtime, the hours which the employee would have been required to work may be counted against the employee s FMLA entitlement. This situation arises when the employee is using intermittent or reduced schedule leave. For example, if an employee would normally be required to work for 48 hours in a particular week, but due to a serious health condition the employee is unable to work more than 40 hours that week, the employee would utilize eight hours of FMLA-protected leave out of the 48-hour workweek, or one-sixth (1/6) of a week of FMLA leave. However, voluntary overtime hours that an employee does not work due to an FMLA-qualifying reason may not be counted against the employee s FMLA leave entitlement. FMLA leave does not accrue at an hourly rate. Clarification several definitions such as airline flight crew employee and applicable monthly guarantee were added. Other definitions such as serious injury or illness were modified to reflect changes such as the new eligibility for certain veterans. A few others such as active duty were reworded to add clarity. Change prior regulations included language permitting an employer to vary the minimum increments of time that must be used for intermittent or reduced schedule leave based on the time Page 5 Issue

6 of day or shift. This language has been removed. Change optional forms have been removed from the regulations. The removed forms and notices are medical certification forms WH-380-E (Certification of Health Care Provider Employee), WH-380-F (Certification of Health Care Provider Family Member), WH-384 (Certification of Qualifying Exigency for Military Family Leave), and WH-385 (Certification for Serious Injury or Illness of Covered Servicemember for Military Family Leave); notification forms WH-381 (Notice of Eligibility and Rights & Responsibilities) and WH-382 (Designation Notice to Employee of FMLA Leave); and the Notice to Employees of Rights under FMLA (WH Publication 1420) These forms will be available on the DOL s web site. The DOL intends to modify the FMLA poster (Form 1420) and forms WH-381, WH-384, and WH-385. It also intends to develop a new form for the certification of a serious injury or illness of a covered veteran. Reminder of Obligations under GINA The DOL reminds employers about their obligation to comply with the confidentiality requirements of the Genetic Information Nondiscrimination Act (GINA). The GINA requirements will apply if the FMLA records and document contain family medical history or genetic information as defined by GINA. The DOL previously provided the following GINA safe harbor language that may be used by an employer when requesting information for an FMLA leave: The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers and other entities covered by GINA Title II from requesting or requiring Genetic Information of employees or their family members. In order to comply with this law, we are asking that you not provide any Genetic Information when responding to this request for medical information. Genetic Information, as defined by GINA, includes an individual s family medical history, the results of an individual s or family member s genetic tests, the fact that an individual or an individual s family member sought or received genetic services, and Genetic Information of a fetus carried by an individual or an individual s family member or an embryo lawfully held by an individual or family member receiving assistive reproductive services. Action Steps There are several action steps that employers may want to take. 1. Send comments to the DOL, if desired. Comments may be sent until 60 days after the regulations have been published in the Federal Register. This new guidance is in proposed form and the DOL is requesting comments in a number of areas including: a. Definitions of serious injury or illness for veterans particularly the proposed third definition and a fourth that is under consideration. b. Types of navy or coast guard duty that would satisfy the definition of deployment in a foreign country. c. The increase in the maximum R&R leave for qualified exigency leave. d. How non-dod, VA, and TRICARE network providers may be able to obtain information from the DOD or VA to make certain military-related determinations such as whether or not an injury or illness was incurred in the line of duty while on active duty or whether an existing injury or illness was aggravated by service. In addition, whether a veteran (or family member) have access to documentation of a VASRD disability rating. e. All aspects of AFCTCA, especially the use of duty hours in calculating the 504 minimum requirement. Page 6 Issue

7 2. Review current FMLA policies, procedures and forms. 3. Modify current forms or adopt new DOL templates when they become available. The DOL is currently modifying the FMLA poster (Form 1420) and Forms WH-381, WH-384, and WH Add the GINA safe harbor language to forms requesting medical information, if not already included. 5. Update communication materials such as employee handbooks and the FMLA poster when the new poster becomes available from the DOL. The intent of this Technical Bulletin is to provide general information on employee benefit issues. It should not be construed as legal advice and, as with any interpretation of law; plans sponsors should seek proper legal advice for the application of these rules to their plans. Gallagher Benefit Services, Inc Page 7 Issue