Family Medical Leave Act -- Flight Crew FAQs
|FMLA Checklist||FMLA Flight Crew FAQs||State FMLA Laws|
|FMLA Glossary of Terms||Employee DOL FMLA Form||Family Member DOL FMLA Form|
Congress enacted the Family and Medical Leave Act (FMLA) in 1993 after years of effort by labor unions, women’s groups, and senior organizations. Amendments were added in 2008 and 2009. Additionally, some states and the District of Columbia have enacted family and medical leave laws. (Many of these state laws are summarized on Appendix A.)
On December 21, 2009, the President signed into law the Airline Flight Crew Technical Corrections Act, Public Law 111-119 (the “TCA”), amending section 101(2) of the FMLA. The purpose of the TCA was to match the hours of service requirement in the FMLA more closely to the unusual schedules that flight crews follow thereby allowing more flight crew members to gain the benefit of FMLA coverage. Flight Attendants and other flight crew members are still subject to the FMLA’s other, sometimes complex, eligibility requirements.
The goal of these Frequently Asked Questions (FAQs) is to set out, in a general way, FMLA requirements. FMLA requirements and procedures are established by the Department of Labor (DOL) through regulations and other forms of guidance. In these FAQs, we’ll refer to all these regulations and other forms of guidance, collectively, as “DOL Guidance”.
Because we are describing FMLA requirements generally in these FAQs, not all the details and variations relevant to being approved for and using FMLA are set out here. If you have any questions about anything stated here, need clarification or more information, or wonder how what is described here relates to your particular situation, please follow up with your AFA EAP committee people, who often deal with FMLA questions and details, or your AFA leaders. If your local AFA contacts don’t have ready answers for you, they know with whom to follow up to get you the help you need.
It’s important to know that, if you meet the eligibility requirements and satisfy the procedures set out in DOL Guidance, your federal FMLA rights are the minimum to which you are entitled. Your collective bargaining agreement (CBA) and/or state law may provide you with enhancements to your FMLA leave or provide you with greater rights or benefits.
Eligibility Requirements for FMLA Leave
- You must have been employed for at least 12 months or 52 weeks as of the date your leave commences. There are special rules for those Flight Attendants (FAs) who have had breaks in their employment service and who may not have 12 months or 52 weeks of consecutive service. Breaks in service do not necessarily mean you are not eligible for FMLA leave.
- You must take leave for an FMLA-qualifying reason (see Question 6 below, which describes the kinds of leaves that qualify),
- You must provide the documentation for your leave that the DOL Guidance requires, and
- You must meet the following hours of service requirements over the previous 12 months:
1) worked or been paid for not less than 60 percent of the applicable total monthly guarantee (or its equivalent), and
2) worked or been paid for not less than 504 hours. Note: The 504 hours does not including personal commute time or time spent on vacation, medical, or sick leave.
Therefore, if you are on reserve, the number of hours you are paid is what determines your eligibility, not the hours you fly. Your CBA contains a specific minimum number of hours for which you will be paid each month -- the monthly guarantee. Assuming you are available for the entire month, you will be paid the monthly guarantee. For example, if your minimum monthly guarantee is 70 hours but your company only scheduled you for 35 hours of flight time during that month, you will still be paid for 70 hours. This 70 hour figure is what will be used to determine your eligibility for FMLA. Remember that paid hours for vacation, medical, or sick leaves do not count toward the hours required for FMLA eligibility.
Qualifying For FMLA
The types of events that qualify for FMLA leave include:
- To treat or recover from a serious and/or chronic health condition that renders you unable to perform your job.
- To care for a seriously ill child, spouse, or parent suffering from a serious health condition. Note: The DOL presently is considering expanding the definition of “spouse” under the FMLA to include all lawfully married couples, whether of the same or opposite sex, with the term “lawfully married” to be determined by law in place in the location of the marriage ceremony. Additionally, some CBAs may expand the definition of ‘family members’ to include domestic partners. +
- For childbirth or to care for a newborn child up to age one.
- For the placement of a child with you for adoption or foster care.
- For any qualifying emergency++ arising out of the fact that your spouse, son, daughter, or parent is on active military duty, or has been notified of an impending call to active duty in the US military, including the Reserves or National Guard, or has been notified of a forthcoming call to duty.
- To provide care for a child, spouse, parent, or next of kin who suffers a serious injury or illness while serving in the U.S. military.
+ Federal law does not currently include a Domestic Partner as an eligible family member.
++ Qualifying exigencies for which an employee may take FMLA leave include (1) short notice deployment, (2) military events and related activities, (3) childcare and school activities, (4) financial and legal arrangements, (5) counseling, (6) rest and recuperation, (7) post-deployment activities, and (8) additional activities agreed to by employer and employee.
- Inpatient hospital care (i.e., an overnight stay at a hospital or similar facility).
- An injury, illness, or other condition lasting more than three consecutive days that involves continuing treatment by a health care provider.
- A chronic serious health condition (i.e. asthma, diabetes, epilepsy).
- A long-term or permanently disabling health condition (i.e. Alzheimer’s, stroke, cancer).
- A condition requiring multiple treatments to prevent a period of incapacity of more than three consecutive calendar days (i.e. chemotherapy, physical therapy, dialysis).
- Block Leave – As a FA, you are entitled to 72 days of leave during any 12-month period for FMLA-qualifying reasons (See Question 6) other than “military caregiver leave” (which is 156 days of leave during a single 12-month period for military caregiver leave).
- The 72-day entitlement is based on a uniform six-day work week for all airline flight crew employees regardless of time actually worked or paid, multiplied by the statutory 12 work week entitlement for FMLA leave. For example, if you took six weeks of leave for an FMLA-qualifying reason, you would use 36 days (6 days x 6 weeks) of your 72-day entitlement regardless of your actual schedule. Check your CBA, with your AFA leaders or your airline management -- at some airlines the amount of FMLA leave available to flight attendants is greater than the FMLA Flight Crew minimum.
- Intermittent Leave – When you take FMLA leave on an intermittent or reduced schedule basis, your airline must account for the leave using an increment of no greater than one day. The entire amount of leave actually taken is designated as FMLA leave and counts against your FMLA entitlement. For example, if you take FMLA leave for a two-hour physical therapy session, your airline may require you to remain off work the entire day and use a full day of FMLA leave.
Check with your airline management to determine what methodology it uses to determine the number of days charged to your FMLA entitlement when you take intermittent FMLA leave.
Treatment for substance abuse (now often referred to as substance use disorder) may qualify as a serious health condition for purposes of FMLA if the conditions set forth in DOL Guidance are met. One such condition is that the treatment for substance use disorder must be provided by a “health care provider” or by a “provider of health care services” to whom you have been referred by a health care provider. While treatment may qualify, absence because of your use of the substance, rather than for treatment, does not qualify for FMLA leave. 29 CFR § 825.119(a).
Your airline may choose among four methods to define the 12-month period during which you may take your 12 weeks of FMLA. These methods are as follows:
1) The calendar year (January 1st to December 31st).
2) Another fixed 12-month period (examples would be date of hire, fiscal year, etc.)
3) A 12-month period counted forward from the date the leave commences.
4) A rolling 12-month period counted backward from each date FMLA is used.
When the need for leave is foreseeable, such as for a scheduled operation, an expected birth or placement for adoption, you must provide at least 30 days’ notice prior to the commencement of the leave. If 30 days’ notice is not possible, you are required to provide notice “as soon as practicable.” DOL Guidance clarifies that it should be practicable for an employee to provide notice of the need for leave that is foreseeable either the same day or the next business day. In all cases, however, the determination of when an employee practicably could provide notice must take into account the individual facts and circumstances of each case.
When the need for leave is unforeseeable, as in the case of a sudden and unexpected accident or illness, you are required to provide notice as soon as practicable based on the unique facts and circumstances surrounding your individual case.
Certification of FMLA
Each airline will have its own specific instructions for remitting FMLA forms. Some airlines process the forms in-house while others may contract this work out to third party administrators (TPAs).
You should not be required to remit certification forms containing your private health information to any direct supervisor and mailing certification forms is not recommended.
There are specified timelines within which your forms must be received. If your forms are delayed for any reason and are received outside the specified timeline, your request for leave could be denied. The safest method is to pick up the completed certification form from your health care provider and either deliver it personally or fax it so you have a time/date stamp.
Under DOL Guidance, an employer may not categorically deny a request for FMLA because it thinks your condition does not qualify. Under the law, it is assumed that your condition does qualify because your physician has certified that it does when he/she completed the required application forms.
However, if your airline has a legitimate basis to doubt the accuracy of the certification, it may require that you be examined by a second health care provider at its expense. Your airline may choose the second health care provider, but that provider may not be under contract with the airline or have any regular business dealings with it.
If the second opinion conflicts with your health care provider's, you may be required to have an examination by a third health care provider, again at your airline’s expense. This third provider must be chosen jointly by you and your airline.
If the third health care provider says that you are able to do your job, or denies that your condition is serious or chronic, your airline can deny the leave or, if absences already have occurred, take disciplinary action.
Your airline may not deny a completed medical certification if it does not utilize the second and third opinion procedure. If your airline violates this rule, you should notify your Local AFA leadership immediately and a complaint with the Department of Labor should be filed. You can file the DOL Complaint as an individual or your AFA leadership can file for you. It is imperative that you report all issues and problems with FMLA at your airline to AFA as soon as it occurs.
Note: It is critical that your application be filled out correctly by your health care provider. The reason for FMLA leave denial is often because the health care provider has not indicated that the condition is serious or chronic on the initial FMLA application.
Yes, you can be asked to recertify a medical leave. Recertifications are not subject to the second and third opinion procedures discussed in Question 19, above. If you have been asked to recertify a leave and do not do so, your FMLA can be canceled. Ordinarily, a recertification cannot be demanded more often than once every 30 days and only in connection with an absence. Recertifications can be requested in the following circumstances:
- Absence exceeding 30 days:
- Your airline must wait for the minimum duration outlined in the medical certification to expire before requesting a recertification.
- Absence less than 30 days:
- Your airline receives information that casts doubt on your absence.
- There is a significant change in your condition such as surgery, the development of complications, or a greater number of absences than predicted in the original certification.
- You request an extension of leave
- Additionally, your airline may request a new medical certification each FMLA leave year for medical conditions that last longer than one year. Such new medical certifications are subject to the second and third opinion procedures described in Question 19, above.
The FMLA does allow you to a limited right to use accrued paid leave. This right may be undermined, however, by a provision allowing employers to require an employee to use paid leave even when the employee would prefer to save it for a later use.
In some cases you cannot be made to use vacation time for which you bid before taking FMLA leave. You should ask your AFA leaders determine what, if any, contractual provisions or grievance arbitration decisions apply to the use of substituting paid leave for unpaid leave. Some CBAs grant the FA the discretion to choose whether or not to substitute paid time such as vacation or sick leave for unpaid leave.
No. DOL Guidance states that employees eligible for FMLA leave cannot be required to accept modified or light duty job assignments. According to the DOL, if an employee qualifies under FMLA for job-protected leave, the employee may not be forced, before the FMLA job protected leave entitlement has expired, to return to work in a “light work” position, instead of continuing FMLA leave until the entitlement has been exhausted. Airline management violates FMLA if it:
- Denies FMLA leave on the grounds that instead it will modify your position or assign light-duty work,
- Orders you to return from leave to perform modified or light-duty work, or
- Disciplines you for declining an offer of modified or light-duty work.
If you elect to undertake light duty, then those work hours don’t count against your FMLA leave entitlement.
Filing a grievance is appropriate if the violation also violates your CBA. If the issue deals with an application of the FMLA, you should contract an AFA leader and the Department of Labor-Wage & Hour Division office which covers your domicile. If you are in doubt as to whether a legal issue is involved, this too can be directed to the Wage & Hour office. DOL locations and contact information can be found at: http://www.dol.gov/whd/
Although you are entitled to contact DOL directly whether to report a suspected violation, file a complaint, or just get advice, it is very important that you notify your AFA leadership about any problem or complaint you have about FMLA so your experience can be added to other AFA members’ and a record of all violations, problems, issues, and concerns is kept.