Recent Webinar Addresses Proposed Legislation That Would Expand the Scope of the FMLA

As we kick off the Summer of 2010, this is a great opportunity for employers to brush up on some recent developments under the FMLA through a free, previously recorded webinar.   

Recently, my law partner, James A. Matthews, III, and I presented a webinar for in-house counsel entitled The Obama Administation After Year One: The Evolving Legal Landscape of the Workplace.  Among other recent developments, I discussed proposed legislation that would expand the scope of the FMLA.  Some of the proposed changes include extending leave to employees to care for a domestic partner and/or same sex spouse with a serious health condition; making leave available to employees in connection with domestic violence issues; and reducing the number of employees that an employer must employ to be a covered employer from 50 to 25. 

I recommend that employers listen to the webinar to stay abreast of proposed changes to the FMLA.  Should any of the proposals become law, please check back here for a discussion of what the changes mean for employers. 

President Obama Expected to Sign FMLA Amendment To Permit Airline Pilots and Flight Attendants To Qualify for FMLA Leave

On December 2, 2009, the House by voice vote gave final congressional approval to the Airline Flight Crew Technical Corrections Act, which would amend the FMLA to permit airline pilots and flight attendants to qualify for leave.  The measure has been sent to President Obama, who is expected to sign it.  The Act is similar to a bill that passed the House earlier this year. 

Senators Introduce Measure That Passed House To Allow Airline Crews To Take FMLA Leave

On July 9th, Senator Patty Murray (D-Wash) and a group of five other bi-partisan senators introduced legislation--The Airline Flight Crew Technical Corrections Act--that would permit flight attendants and pilots to qualify for leave under the FMLA.  The proposed legislation is similar to H.R. 912, which I discussed in a prior blog, and which passed the House by voice vote on February 9th. 

Proposed Domestic Violence Leave Act Would Expand the Scope of the FMLA

Recently, Rep. Lynn Woolsey (D-CA) introduced the Domestic Violence Leave Act (H.R. 2515).  The Act would amend the FMLA to permit victims of domestic violence, sexual assault, and stalking (as those terms are defined in the Violence Against Women Act) and their family members to take leave as a result of the violence.   Specifically, the Act would permit a qualified employee to take leave to seek medical attention, legal assistance, or psychological counseling, or to attend support groups, as a result of domestic violence, sexual assault, or stalking directed at the employee or a family member.  In addition, the Act would permit leave to participate in safety planning or other activities necessitated by domestic violence, sexual assault, or stalking.  The employer could require a certification that the employee requires leave for the reasons outlined in the Act.  Court or police records, or other records substantiating the domestic violence, sexual assault, or stalking, would meet the certification requirement.

If the legislation is signed into law, it would not be the first time that leave unrelated to medical care or childbirth would be made available to eligible employees.  Under the amendments to the FMLA occasioned by the National Defense Authorization Act, eligible employees are entitled to up to 12 weeks of leave due to "any qualifying exigency" arising out of the fact the spouse, son, daughter, or parent of the employee is on active duty, or has been notified of an impending call to active duty status, in support of a contingency operation.  Under those amendments, qualified employees can take leave to meet with legal counsel, make childcare arrangements, and take other similar actions necessary to deal with the family member's active duty status.

The Domestic Violence Leave Act also would amend the FMLA by adding the phrase "or domestic partner" wherever the  word "spouse" appears in the Act.  This change previously was proposed in H.R. 2132, which I discussed in my post on May 12, 2009, and which has been referred to Committee.   We should anticipate that any upcoming bills to amend the FMLA will include a provision expanding the definition of "family member" to include a domestic partner. 



Proposed Legislation Would Make FMLA Leave Available to Care for a Domestic Partner, Same-Sex Spouse and Other Extended Family Members

On April 28, 2009, Representative Carolyn Maloney of New York introduced H.R. 2132, entitled the Family and Medical Leave Inclusion Act, which would amend the FMLA to permit leave to care for  same-sex spouses, domestic partners and other extended family members.  Specifically, the Act would permit leave to care for a domestic partner, child of a domestic partner, same-sex spouse, parent-in-law, adult child, sibling, or grandparent with a serious health condition. 

Currently, the FMLA permits eligible employees to take family leave to care for a spouse, minor child, adult child who is incapable of self-care, or parent (not in-law) with a serious health condition.  Under the federal Defense of Marriage Act, the term "spouse" is defined as a spouse of the opposite sex.  The proposed Act would define spouse to include a same-sex spouse as determined under applicable state law.  You can access the full text of the proposed Act here

Although the proposed Act would not provide employees with additional leave time, it would expand significantly the instances in which eligible employees could invoke their FMLA rights. 

Proposed Legislation to Extend Paid Family Leave to Federal Employees: Are Private Employers Next?

Congress has proposed legislation that would make four of the twelve weeks of parental leave available under the FMLA for the birth or adoption of a child paid for federal employees.  There are two proposals currently pending--S. 354 and H.R. 626. 

Some have predicted that paid family leave for federal employees is a harbinger of legislation that would require private employers to provide paid leave. 

Read what I had to say about this recently in the National Law Journal.

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House Passes Bill for Second Time to Cover Airline Crews

On February 9, 2009, the House passed the Airline Flight Crew Family and Medical Leave Act (H.R. 912), which  would make it easier for flight attendants and pilots to meet the hours of service requirements of the FMLA.  The measure aims to close a loophole that reportedly excludes more than 200,000 flight attendants and pilots from FMLA coverage. 

Under the FMLA, to qualify for leave employees must have worked at least 1,250 hours in the 12 months preceding the leave.  Currently, hours spent by airline employees in flight count towards the hours of service requirement, but hours spent on the job between flights or on mandatory standby do not.  Under the House bill, a flight attendant or pilot would meet the hours of service requirement if he or she worked or was paid for 60% of the "applicable monthly guarantee", or the equivalent annualized over the preceding 12-month period, and for a minimum of 504 hours during the same period.  An "applicable monthly guarantee" is the time employers schedule flight crews, including time spent on the job between flights or on mandatory standby.  Under the bill, the Secretary of Labor would issue regulations providing a method of calculating leave for airline flight crews.

The House passed a similar bill in May, 2008, but the Senate did not act on it before Congress adjourned.  A similar bill is expected to be introduced by Senator Patty Murray (D-Wash). 



FMLA Leave for flight attendants and pilots?

On May 14, 2008, the House Education and Labor Committee unanimously approved the Airline Flight Crew Technical Corrections Act (H.R. 2744), which clarifies that full-time flight attendants and pilots are covered under the FMLA.  The bill would close a loophole that effectively excludes more than 200,000 flight attendants and pilots from coverage under the FMLA.

Because the flight schedules for most full-time attendants and pilots are calculated only according to their "in-flight" time, a full-time schedule for a flight attendant or pilot is almost always less than the 1,250 hours needed to qualify for leave under the FMLA.  Under H.R. 2744, a flight attendant or pilot will be eligible for leave under the FMLA if he or she has been paid for or has worked 60% of the employer's monthly hour or trip guarantee, or the equivalent annualized over the preceding 12-month period.

To read the Bill, please click here.