Most of us reading this blog post are well-versed in, or at least familiar with, the basics of the federal Family and Medical Leave Act (FMLA). Some of us can (and will) recite FMLA entitlement, leave reasons, eligibility rules, and certification requirements with the same ease as, say, a flight attendant providing passengers with the pre-flight safety briefing.
For those less familiar, here’s a refresher of the basics:
- Eligible employees are entitled to unpaid, job-protected leave due to certain family and medical leave reasons.
- An employee is eligible if they work for a covered employer, have 12 months of employment with their employer, and have worked 1,250 hours in the 12 months preceding the leave.
- Entitlement is 12 weeks for most leave reasons, but 26 weeks for military caregiver leave.
These rules sound deceptively simple. However, in addition to the gray areas that muddy the FMLA waters for many employers’ leave administration, the FMLA has entirely different rules for certain employee populations, specific to particular industries. Therefore, much like an airline pilot must be prepared to circumvent unexpected wind gusts during takeoff, employers and third-party administrators (TPAs) must be ready to navigate the equally tricky variables of the Family and Medical Leave Act (FMLA), such as the special rules that apply to airline flight crew employees.
The Flight Crew Variation
Before the FMLA was amended in 2009, many employees in the airline industry (flight crewmembers and flight attendants) were not eligible for FMLA leave because they did not satisfy the 1,250 hours of work requirement based on the definition of hours worked under the Fair Labor Standards Act (FLSA). Even if they were eligible, the leave entitlement calculation didn’t always make sense with regard to flight crew work schedules. The Airline Flight Crew Technical Corrections Act, (AFCTCA), passed in 2009, aimed to bridge this gap by establishing flight-crew-specific rules for FMLA eligibility, entitlement calculation, and recordkeeping.
Like other types of employees, airline flight crew employees must work for a covered employer and must have worked for their employer for 12 months. They also must meet an hours-worked requirement. However, the hours-worked requirement is calculated differently than it is for a non-flight-crew employee.
The AFCTCA introduced a new term: “Applicable monthly guarantee.” The two components of this concept are identified below.
- For an airline flight crew member who is not on reserve status (line holder): The minimum number of hours for which an employer has agreed to schedule such employee for any given month; and
- For an airline flight crew employee who is on reserve status: The number of hours for which an employer has agreed to pay the employee for any given month.
To meet the hours worked requirement, a flight crew member, in the previous 12 months, must have:
- Worked or been paid for at least 60% of the “applicable monthly guarantee”; and
- Worked or been paid for at least 504 hours (not counting personal commute time or time spent on vacation, medical, or sick leave)
Flight Crew FMLA Entitlement
An eligible flight crew employee is entitled to up to 72 days of FMLA leave during any 12-month period for qualifying reasons other than military caregiver. For military caregiver the maximum entitlement in a 12-month period is 156 days. This leave entitlement multiplies a uniform flight-crew 6-day workweek by the statutory 12- or 26-workweek FMLA entitlement. The entitlement calculation does not consider time actually worked or paid.
Example: If an employee took 6 weeks of leave for an FMLA-qualifying reason, the employee would use 36 days (6 days x 6 weeks) of their entitlement.
Intermittent & Reduced Schedule Leave
When a flight-crew employee takes intermittent or reduced-schedule FMLA leave, the employer must account for the leave using a minimum increment of no more than one day.
If it is physically impossible for an employee using intermittent leave or working a reduced leave schedule to miss only part of a shift or workday, as would often be the case for a pilot or flight attendant scheduled to work a flight, the employer can require the employee to use FMLA for the entire shift. The period of the “physical impossibility” is limited to the time during which the employer is unable to allow the employee to work before a period of FMLA leave and/or return the employee to the same or equivalent position after a period of FMLA leave.
Example: If a flight attendant scheduled to work an 8-hour flight must attend a 3-hour doctor’s appointment during that time, they would miss their entire shift because they cannot leave or join the flight part-way through. The entire shift missed by the flight attendant is counted against their FMLA entitlement.
In addition to general FMLA recordkeeping requirements (29 C.F.R. § 825.500(c)(1) – (7), employers of flight crews must maintain:
- Records and documents that indicate the applicable monthly guarantee for each category of employee, including copies of any relevant collective bargaining agreements or policies; and
- Records of hours worked and hours paid.
If an employer of flight crew employees fails to maintain accurate records of employee hours worked or hours paid, the employer is responsible for proving that an employee is not eligible for FMLA due to not having worked or been paid for at least 60% of their applicable monthly guarantee or for 504 hours during the previous 12 months.
What Employers Should Do
Employers who employ flight attendants or flight crewmembers should ensure that their policies and procedures account for the associated variations in FMLA entitlement, eligibility, and recordkeeping.
What ReedGroup Is Doing
As a third-party administrator, ReedGroup is committed to serving our clients’ unique needs. Our software is designed to accommodate, and our operations teams are trained to handle, different FMLA considerations for certain employee populations, including flight crews.
If you’re looking for assistance managing claims or to ensure compliance across your organization, ReedGroup has solutions for you. Check out our offerings here.
Information provided on this blog is intended for general educational use. It is not intended to provide legal advice. ReedGroup does not provide legal services. Consult an attorney for legal advice on this or any other topic.