Washington D.C. Employment Law Update : Washington D.C. Employment Lawyer & Attorney : Littler Mendelson Law Firm : Virginia, Tyson's Corner

The FY 2010 NDAA also extended the military caregiver leave to include care for certain veterans as well as active members of the armed forces. Military caregivers may take up to six months (26 workweeks) of leave in a 12-month period to care for a covered service member or veteran with a serious service-related injury or illness. This leave may be taken up to five years after the service member leaves the military, and for serious injuries or illnesses that result from a condition that predates the service member’s active duty, but was exacerbated by the military service. Before the FY 2010 NDAA was enacted, FMLA leave for military caregiving was available only to employees caring for family members who were current service members.

This leave is not calculated using the calendar-year method. Rather, the caregiver may take this leave in a single 12-month period, which begins on the first day the employee takes leave and ends 12 months later. The Department is proposing to permit second and third opinions on military caregiver leave certifications that are completed by health care practitioners who are not affiliated with the military or Veterans Administration.

As discussed in a fact sheet on the proposal, key elements of the proposed rule include the following:

• Caregiver leave under the FMLA is extended to eligible family members of recent veterans with a serious injury or illness incurred in the line of duty.
• The rule creates a three-part definition for serious injury or illness of a veteran in order to qualify caregivers for the expanded FMLA coverage.
• Military caregiver leave is extended to cover serious injuries or illnesses for both current service members and veterans that result from the aggravation during military service of a preexisting condition.
• The use of qualifying exigency leave is extended to eligible employees with covered family members serving in the regular Armed Forces, not just for the National Guard.
• The proposal includes a foreign deployment requirement for qualifying exigency leave for the deployment of all service members (National Guard, Reserves, Regular Armed Forces).

Airline Flight Crew FMLA Entitlement

The Airline Flight Crew Technical Corrections Act (AFCTCA) allows more airline employees to avail themselves of leave under the FMLA as well. The Act’s intent was to close a perceived loophole in the FMLA’s hours of service requirements for pilots and flight attendants whose unconventional work schedules often failed to qualify them for FMLA leave. In order to be entitled to FMLA leave, employees must have worked for their employer for at least 12 months and for at least 1,250 hours during the previous 12-month period, which equates to at least 60 percent of a standard 40-hour work week. Under the Fair Labor Standards Act (FLSA), which is used to determine the number of hours worked for FMLA purposes, some courts concluded that the time pilots and flight attendants spent on the job between flights and on mandatory standby do not count as “hours worked.” The AFCTCA provided that that the hours pilots or flight attendants work or for which they are paid – not just those spent in actual flight – count toward the minimum hours calculation. Under the revised eligibility rules, flight crew employees will meet the hours of service requirement if they have worked or been paid for not less than 60 percent of the applicable total monthly guarantee and have worked or been paid for not less than 504 hours during the 12 months prior to their leave.

The proposed rule implementing these changes details the special hours of service eligibility requirement for airline flight crew employees, and includes specific provisions for calculating the amount of FMLA leave used by airline flight crew employees.

In addition, according to a set of frequently asked questions (FAQs) on the changes made by the new proposal, the proposed rule also seeks to

delete a provision that was added to the regulations in 2009 which allows employers to utilize different increments of FMLA leave at different times of day under certain circumstances. The Department’s enforcement experience indicates some confusion over the application of this provision. In response to the apparent confusion, the Department proposes to delete this provision of the regulations in favor of the more general principle of calculating FMLA leave usage using the employer’s shortest increment of leave at any time.

The proposed rule also seeks to clarify the employer’s responsibility to reinstate an employee after FMLA leave. The 2009 regulations added a new provision that permits an employer to delay reinstatement where it is physically impossible for the employee to return to his or her job in mid-shift (for example, if the employee works in a locked clean room). According to the FAQs, the Department “is concerned that some employers may have misinterpreted the concept of physical impossibility to apply to circumstances where it is merely inconvenient to reinstate the employee mid-shift, ” and the proposed rule would “clarify the narrow scope of this regulatory provision.” The Department also proposes to remove the optional-use forms and notices from the regulations’ Appendices. The forms will continue to be available on the Wage and Hour Division Web site.

More information on the proposal can be found on the Wage and Hour Division’s rulemaking page. In addition, see Littler's ASAP: DOL Releases Proposed Rule Expanding Leave Entitlement for Military Caregivers and Flight Crew Members.

Comments to the proposed rule are due 60 days after it is published in the Federal Register, and must include the Regulatory Information Number (RIN) 1235-AA03. Input may be submitted electronically through the federal eRulemaking Portal or sent by mail to Mary Ziegler, Director of the Division of Regulations, Legislation, and Interpretation, Wage and Hour Division, U.S. Department of Labor, Room S-3510, 200 Constitution Avenue, N.W., Washington, D.C. 20210.

Photo credit:  Kirby Hamilton

• The agency will maintain the current 11-hour daily driving limit unless further study indicates that the benefits of reducing the limit outweigh the costs. The final rule does not include a change to the daily driving limit because the Agency concluded that it could not definitively demonstrate that a 10-hour limit — which it favored in the proposed rule — would have higher net benefits than an 11-hour limit. The rule does, however, reduce from 82 to 70 the weekly maximum number of hours a truck driver is permitted to work, a 15% reduction.
• The reduction in hours is accomplished by limiting a driver’s “34-hour restart” to once every 168 hours (7 days). As established under earlier HOS regulations, drivers are permitted to restart their duty time calculations whenever they take at least 34 consecutive hours off. Limiting this restart to once a week prevents drivers from working more than 70 hours per week.
• The rule mandates that the 34-hour restart period must include at least two periods of time between 1:00 and 5:00 a.m. (measured by the driver’s home terminal time) to increase the driver’s opportunity to sleep.
• The rule also requires that the drivers spend no more than 8 consecutive hours (compared to 7 hours in the proposed rule) on duty without taking a break lasting at least 30 minutes before driving. This break time may include meal breaks, time in the sleeper berth, or any other off-duty period. In response to comments on the proposed rule, the agency makes an exception for commercial motor vehicles (CMVs) carrying certain explosives. These drivers are permitted to count on-duty time spent attending the truck carrying the explosives as part of the mandatory 30-minute break, so long as they do no other work during that time.
• The rule revises the definition of “on-duty time” by excluding from that definition any time spent resting in a parked CMV or up to 2 hours spent resting in the passenger seat of a moving CMV immediately before or after spending at least 8 consecutive hours in the sleeper berth. This change applies to passenger-carrying vehicle drivers as well.
• The rule defines and establishes penalties for egregious violations of the HOS rule. Specifically, driving or allowing a driver to drive a CMV for 3 or more hours beyond the 11-hour limit can be considered an egregious violation of the rule subject to civil penalties. Employers will face a maximum penalty of up to $11,000 per offence; drivers up to $2,750 per offense. This penalty provision also applies to passenger-carrying vehicle drivers.
• The rule revises HOS provisions applicable to drivers involved with oilfield operations. Specifically, the rule makes certain technical clarifications to the time recording requirements for these drivers. "Waiting time" for certain drivers at oilfields must be shown on logbook or electronic equivalent as off duty and identified by annotations in "remarks" or a separate line added to "grid."

The rule’s changes to “on duty time” as well as to the oilfield provisions take effect 60 days after the rule is published in the Federal Register. All other portions of the rule are scheduled to take effect on July 1, 2013. The Agency noted that, generally, when implementing safety rules, it prefers to set shorter compliance dates. However, in this case, the Agency acknowledged, as many commenters pointed out, that industry and law enforcement may need extra time to train personnel and to adjust schedules and automated systems. The Agency concludes that the rule will mainly affect drivers who work more than 70 hours a week on a continuing basis, who are mostly a subset of long-haul truckload drivers.

More information on this rule can be found here.

On April 5, 2010, the FMCSA issued a final rule that addressed the limited, remedial use of EOBRs for motor carriers with significant HOS violations. That final rule required a motor carrier that was found during a compliance review to have a 10% violation rate for any HOS regulation in Appendix C of 49 CFR part 385 to install and use EOBRs on all of that carrier’s CMVs. The compliance or implementation date for the rule is June 4, 2012. The Agency noted that, although it received comments recommending expanding the reach of the rule beyond the motor carriers affected by the 2010 remedial directive, the limited scope of the NPRM prevented the Agency from doing so. As noted in the preamble to the 2010 final rule, however, FMCSA stated that it recognizes that the potential safety risks associated with HOS violations are such that mandatory EOBR use for a broader population might be appropriate. Accordingly, this proposed rule would expand the scope of mandatory EOBR use beyond the population of motor carriers that are or would be subject to a remedial directive as a result of the April 2010 final rule.

Under the proposed rule, interstate carriers that currently use RODS logbooks to document drivers' HOS would instead be required to use EOBRs. Short-haul interstate carriers that use timecards to document HOS, however, would not be required to use EOBRs. Carriers found not in compliance could face up to $11,000 per violation in civil penalties. Such noncompliance would negatively impact a carrier's safety fitness rating and DOT operating authority.

The agency estimates that 500,000 carriers would be affected by the proposal. The proposed rule gives motor carriers three years after the effective date of the final rule to comply with the new requirements.

The FMCSA, which has issued a proposed rule to amend its HOS requirements for CMVs, recently announced that it planned to hold a public listening session on the proposed HOS rules.

Comments on the EOBR proposed rule must be made within 60 days after its publication in the Federal Register, which is scheduled for February 1, 2011, and must contain the ID Docket Number: FMCSA-2010-0167. Comments may be submitted electronically through the federal eRulemaking Portal, via fax: 202-493-2251, or sent by mail or hand-delivered to: Docket Management Facility, U.S. Department of Transportation, 1200 New Jersey Avenue, SE., West Building, Ground Floor, Room W12-140, Washington, DC 20590-0001.

Other main changes include the following:

• The proposal would limit CMV drivers to either 10 or 11 hours of driving time following a period of at least 10 consecutive hours off duty. The FMCSA currently favors a 10-hour limit, although it will consider comments in formulating the final rule;
• Commercial truck drivers would be required to complete all driving within a 14-hour workday, with the option of extending their daily shift to 16 hours twice a week to accommodate situations such as loading and unloading at terminals or ports, and allowing drivers to count some time spent parked in their trucks toward off-duty hours;
• Drivers would be required to complete all on-duty work-related activities within 13 hours to allow for at least a one hour break;
• Drivers would be permitted to drive only if 7 hours or less have passed since their last off-duty or sleeper-berth period of at least 30 minutes;
• The oilfield operations exception would be revised to clarify the language on waiting time and to state that waiting time would not be included in the calculation of the driving window.

Trucking companies found to have allowed their drivers to violate the proposal's driving limits would face penalties of up to $11,000 for each offense; commercial truck drivers would face civil penalties of up to $2,750 for each offense.

Comments on this proposed rule are due within 60 days of its publication in the Federal Register, which is scheduled for December 29, 2010. All comments must contain the docket number FMCSA-2004-19608 or regulatory identification number (RIN) 2126-AB26. Comments may be submitted electronically through the federal eRulemaking Portal, via facsimile: 202-493-2251, or by mail or hand-delivery to: Docket Management Facility (M-30), U.S. Department of Transportation, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE, Washington, DC 20590-0001.
 

• have worked or been paid for not less than 60 percent of the applicable total guarantee, or the equivalent, for the previous 12-month period, for or by the employer with respect to whom leave is requested under section 102; and
• have worked or been paid for not less than 504 hours (not counting personal commute time or time spent on vacation leave or medical or sick leave) during the previous 12-month period, for or by that employer.

In December 2009, President Obama signed into law the Airline Flight Crew Technical Corrections Act (P.L. 111-119), a nearly-identical measure that clarified the hours of service requirements for pilots and flight attendants whose unconventional work schedules often failed to qualify them for FMLA leave.

The Railroad Hours of Service Employees Technical Corrections Act has been referred to the House Committee on Education and Labor.

Photo credit: Darren Hester