Employment Law Report

FMLA Amended, Yet Again

By Kim Koratsky

On December 3, 2009, the U.S. House passed a bill that will make the nation’s flight attendants and pilots eligible for 12 weeks of unpaid leave time each year under the Family and Medical Leave Act (FMLA).  This legislation has already passed the Senate (by unanimous consent) on November 10, and is expected to be signed by the President.  Senate Bill 1422, The Airline Flight Crew Technical Correction Act, clarifies the FMLA to accommodate flight attendants and pilots who, because of the airline industry’s unique calculation of work hours spent on overnights, layovers and waiting to be called to duty, currently do not qualify for leave time.  The Bill’s original sponsor, Senator Patty Murray (D-WA) said, “[t]oday we have fixed an unintended and unfair exclusion to our country’s medical leave laws.”  Interestingly, Senator Murray was one of the Senators who helped pass the FMLA in 1993 as one of her first acts as a U.S. Senator.
To qualify for FMLA coverage, an employee must work 60 percent of a full-time schedule or 1,250 hours per year. Courts calculate the requisite number of hours using the Fair Labor Standards Act (FLSA) which covers most workers. However, the hours worked by airline flight crews are calculated differently.  Unlike most workers, flight crew members are not credited for each hour they spend on the job. Instead, they are only credited for actual time “in flight,” although numerous hours are spent preparing for and breaking down flights and they can spend several days, or more away from home. This means that time between flights, such as overnights and layovers does not count toward FMLA coverage and has resulted in flight crews being excluded from receiving unpaid leave.  The legislation that Senator Murray introduced clarifies the FMLA to include these workers under the FMLA protections.  It would make it possible for flight attendants and pilots to qualify for leave when they have fulfilled 60 percent of a full-time work schedule or their monthly guarantee at their airline.