On Monday, January 28, 2012 the United States Department of Labor (DOL) announced that it would publish a Notice of Proposed Rulemaking addressing statutory amendments to the Family and Medical Leave Act (FMLA) provisions concerning military family leave and flight crew eligibility. The proposed rules will be published in the Federal Register and interested parties may submit written comments within a defined period of time, which has not yet been specified.

The DOL’s proposed rules implement and interpret, as well as propose expansion of, amendments to the FMLA that were incorporated in the National Defense Authorization Act for Fiscal Year 2010 (NDAA 2010) and the Airline Flight Crew Technical Corrections Act (AFCTCA), which was enacted in 2009. Although the NDAA was silent as to its effective date, certain provisions required clarification or definition by the DOL. The proposed rules address those provisions as well as implement those that did not require definition or clarification.

A number of areas of the military family leave provisions of the FMLA are discussed in the proposed rules. Of primary interest, the rules: 

  • Extend the period within which a military service member’s caregiver may apply for FMLA leave to 5 years beyond the service member’s separation from the military;
  • Expand eligibility for caregiver leave to include caring for service members with conditions that arise after the service member has separated from military service; 
  • Expand the definition of serious illness or injury to include those arising from a pre-existing condition;
  • Increase to 15 days the allotment of time family members may spend with military members who are on rest and recuperation leave;
  • Expand qualifying exigency leave eligibility to employees with service members deployed in the Regular Armed Forces (the DOL considers this provision effective October 29, 2009, the date the NDAA 2010 was enacted); and
  • Clarify that qualifying exigency leave is contingent on deployment to a foreign country (the DOL considers this provision effective October 29, 2009, the date the NDAA 2010 was enacted).

The proposed rules also address revised eligibility for FMLA leave for airline flight crew employees, who on account of airline industry restrictions are generally unable to meet the FMLA’s 1,250 hour requirement. As the AFCTCA specified, an employee who has worked or been paid for 504 hours of service over the course of a year and who has worked or been paid for sixty percent of his or her assigned hours has met the FMLA hours/service time requirement. Employers should note that, because the DOL was not required to engage in rulemaking or issue regulations concerning the AFCTCA, the DOL has deemed the provisions of that statute effective as of December 21, 2009, the date on which it was enacted.

We will update this blog when the proposed rules have been published. If you have questions regarding employer obligations under the FMLA, please feel free to contact any of the attorneys in the Gibbons Employment & Labor Law Department.


Kelly Ann Bird is a Director in the Gibbons Employment & Labor Law Department.