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DOL Issues Final FMLA Regulations Applicable to Airline Flight Crew Employees

January 1, 0001

The U.S. Department of Labor (“DOL”) today published in the Federal Register a Final Rule implementing certain amendments to its Family and Medical Leave Act (“FMLA”) regulations, including those related to the Airline Flight Crew Technical Corrections Act (“AFCTCA”), which was designed to make it more likely that airline flight crew employees would meet the hours-of-service requirement necessary to be eligible for coverage under the FMLA. 

The DOL’s Final Rule, among other things:

  • defines FMLA eligibility for flight crew based on monthly guarantees and hours worked or paid,
  • entitles eligible flight crew to 72 days of traditional FMLA leave during any twelve-month period,
  • permits employers to account for intermittent or reduced schedule leave in one-day increments, and
  • spells out special recordkeeping requirements for flight crew employers.   

The Final Rule creates a new Subpart H (“Special Rules Applicable to Airline Flight Crew Employees”) to the DOL’s FMLA Regulations.  Airlines and their flight crew continue to be subject to the remainder of the FMLA regulations, except as otherwise provided in Subpart H.

The following summarizes the key new FMLA regulations applicable to airline flight crew employees.

Eligibility-Related Requirements:

  • The Final Rule, as required by the AFCTCA, defines an airline flight crew employee as an FMLA “eligible employee” if, “in the previous 12 months, [he or she] worked or [was] paid for not less than 60 percent of the applicable total monthly guarantee and … worked or [was] paid for not less than 504 hours, not counting personal commute time, or vacation, medical or sick leave.”
  • “Applicable monthly guarantee” is defined separately for line holders and reserves.  For purposes of the eligibility calculation, line holders’ applicable monthly guarantee is based on the number of hours an employer has agreed to schedule the employee for any given month, while reserves’ applicable monthly guarantee is the minimum number of hours for which an employer has agreed to pay such employee for any given month.
  • For purposes of determining eligibility, hours “worked” is defined as “duty hours,” and hours “paid” is defined as “the number of hours for which an employee received wages.”  Note that while the term “duty hours” is itself undefined in the regulations, the DOL indicated in its rulemaking that the term is “recognized and widely utilized by carriers and employees in the industry,” and that it encompasses (1) time spent performing “support duties that begin before a plane takes flight and end after it lands,” and (2) time spent in training if the employee is paid for such training time.
  • Flight crew returning from USERRA-covered service must be credited, for purposes of the FMLA hours of service calculation, with “the hours of service that would have been performed but for the period of absence from work due to or necessitated by USERRA-covered service.”  To determine hours-of-service eligibility, any USERRA-covered hours of service (which may be determined by reference to the employee’s pre-USERRA leave schedule) are to be added to any time actually worked or paid for during the previous twelve-month period. 
  • Recognizing employers’ concern regarding the complexity of the 60 percent of applicable monthly guarantee requirement, the DOL explained in its rulemaking that “if an employer of airline flight crew employees chooses to assume that all employees who meet the 504-hours requirement also meet the 60 percent requirement, the employer may do so, provided that they only deduct from employees’ FMLA leave entitlements leave that is covered under the Act.”

Calculation of Leave Requirements:

  • Under the new regulations, eligible flight crew are entitled to 72 days of traditional FMLA leave during any twelve-month period.  This number is based on the assumption that the flight crew employee worked or was paid for a six-day workweek, regardless of time actually worked or paid.  (six-day week x statutory twelve-week FMLA entitlement = 72 days.)  The DOL adopted the six-day workweek assumption based on the FAA’s requirement that flight crew receive 24 hours free from duty in any given seven-day period.  This six-day workweek assumption applies regardless of the number of days the flight crew employee was scheduled to work or would have been paid during the period in which FMLA leave is taken.
  • Eligible flight crew are entitled to 156 days of military caregiver leave during a single twelve-month period.  This number is also based on the assumption the flight crew employee worked or was paid for a six-day workweek, regardless of time actually worked or paid.  (six-day week x statutory 26-week military caregiver entitlement = 156 days).
  • Intermittent or reduced schedule leave for a flight crew member must be accounted for using an increment of no greater than one day.  Thus, employers are permitted to count any use of incremental or reduced-schedule leave in a single day as a full day of FMLA leave for purposes of FMLA usage calculations.  Note that FMLA’s “physical impossibility” provision continues to apply to flight crew.   Where it is physically impossible for a flight crew member to begin or end work midway through a shift (i.e., a scheduled flight), the employer may count the entire shift that the employee must be absent against the employee's FMLA leave entitlement.   In addition, as an exception to the one-day increment rule, the DOL made clear that “if an employer chooses to restore an employee to work on the same day during which intermittent or reduced schedule FMLA leave is taken, the employee’s FMLA leave entitlement may not be reduced by more than the amount of leave actually taken.”

Recordkeeping Requirements:

  • In addition to the FMLA’s normal recordkeeping requirements, covered employers of airline flight crew employees are now required to maintain:

    • Records and documents containing information specifying the applicable monthly guarantee with respect to each category of employee to whom such guarantee applies, including copies of any relevant collective bargaining agreements or employer policy documents; and
    • Records of hours worked and hours paid, as those terms are defined in Subpart H.
  • Although the AFCTCA stated that such records must be kept “on file with the Secretary,” the DOL’s rulemaking states that the records must merely be maintained by the employer “in accordance with the requirements already delineated in § 825.500,” and made available to the DOL Secretary if requested.
  • The rules emphasize the importance of maintaining accurate records of hours worked or hours paid.  Specifically, where such records are not kept, the rules place the burden of proof on the employer to prove that the flight crew employee did not meet the hours-of-service requirement. 

The new FMLA regulations will take effect on March 8, 2013.