By Jeff Jones
Special to the UCBJ
On Aug. 8, 2019, the U.S. Department of Labor issued opinion letter, FMLA 2019-2-A; which states that parents of a child or children with a serious health condition may use the Family and Medical Leave Act (FMLA) to attend school meetings.
The FMLA defines a “serious health condition” as an illness, injury, impairment, or physical or mental condition that involves inpatient care or continuing treatment by a healthcare provider and provides, in relevant part, that an eligible employee of a covered employer may take up to 12 weeks of job-protected, unpaid FMLA leave per year “to care for the spouse, or a son, daughter, or parent, of the employee, if such spouse, son, daughter, or parent has a serious health condition.” See 29 U.S.C. § 2612(a)(1)(C); see also 29 U.S.C. § 2611(11) (defining serious health condition); 29 C.F.R. § 825.112–.115. Care for a family member includes “both physical and psychological care” and “making arrangements for changes in care ….” 29 C.F.R. § 825.124(a)–(b).
An employee may also use FMLA leave intermittently or on a reduced leave schedule when medically necessary because of a family member’s serious health condition. See 29 U.S.C. § 2612(b)(1); 29 C.F.R. § 825.202. However, an employer may require an employee to timely provide a copy of a certification—issued by a health care provider and meeting certain criteria—supporting his or her request to take such leave. See 29 U.S.C. § 2613(a)–(b); 29 C.F.R. § 825.305–.306.
Notably, the letter issued by the Department of Labor was, “based exclusively on the facts … presented.” (emphasis added) The specific facts the Department of Labor used in generating the Aug. 8, 2019 response are in response to an employee with the following set of facts:
The employee has two children who have qualifying serious health conditions under the FMLA. The employee received a certification from their children’s doctors supporting the need to take intermittent leave to care for the children and the employer has approved the employee taking FMLA leave intermittently to bring the children to medical appointments. The employer has not, however, approved the employee’s request to take FMLA leave intermittently to attend CSE/IEP meetings.
The children receive pediatrician-prescribed occupational, speech, and physical therapy provided by their school district, and four times a year their school holds CSE/IEP meetings to review their educational and medical needs, well-being, and progress. These meetings include participation by a speech pathologist, school psychologist, occupational therapist and/or physical therapist employed or contracted by the school district to provide services to the child under the child’s IEP, as well as teachers and school administrators. These participants provide updates regarding the children’s progress and areas of concern; review recommendations made the children’s doctors; review any new test results; and may make recommendations for additional therapy.
The Individuals with Disabilities Education Act (IDEA) requires public schools to develop an IEP for a son or daughter who receives special education and related services with input from the child and the child’s parents, teachers, school administrators, and related services personnel. Under the IDEA, “related services” include such services as audiology services, counseling services, medical services, physical therapy, psychological services, speech-language pathology services, rehabilitation counseling services, among others. See A Guide to the Individualized Education Program, U.S. Department of Education (July 2000), available at https://www2.ed.gov/parents/needs/speced/iepguide/index.html; see also 34 C.F.R. § 300.320 (defining an IEP).
In its response, the Department of Labor opined that the employee’s need to attend CSE/IEP meetings addressing the educational and special medical needs of the children (who have serious health conditions as certified by a health care provider) qualify as a reason for taking intermittent FMLA leave.
Specifically, the Department of Labor stated the attendance at CSE/IEP meetings, “are for a family member … with a serious health condition.” 29 C.F.R. § 825.100(a); see also 29 U.S.C. § 2612(a)(1)(C); 29 C.F.R. § 825.112(a)(3) and, “to care for” a family member with a serious health condition includes “to make arrangements for changes in care.” 29 C.F.R. § 825.124(b). The Department of Labor found the employee’s attendance at IEP meetings were, “essential to … the ability to provide appropriate physical or psychological care” and stated:
Attend[ing] these meetings to help participates make medical decisions concerns the child’s medically prescribed speech, physical, occupational therapy; to discuss your children’s well-being and progress with the providers of such services; ensures the children’s school environment is suitable to their medical, social, and academic needs.
The Department of Labor noted various examples wherein family members were permitted to take FMLA leave when making medical decisions on behalf of parents or children with disabilities. See https://www.dol.gov/whd/opinion/FMLA/2019/2019_08_08_2A_FMLA.pdf
Employers should take away a few things from the Aug. 8, 2019 letter. First, employers should anticipate an increase in FMLA requests. According to the U.S. Department of Health and Human Services National Survey of Children with Special Needs, a total of 12.8% of children under age 18 in the United States, or about 9.4 million children, are estimated to have special health care needs. Further, children with special health care needs are present in 20% of U.S. households with children. See, https://mchb.hrsa.gov/chscn/pages/prevalence.htm for more information about the Prevalence of Children with Special Health Care Needs. In Tennessee, approximately 6.4% of students aged 3 through 5 and 8.6% of students aged 6 through 21 with disabilities made up the student population in the 2015-2016 school year. See https://www.tn.gov/content/dam/tn/education/special-education/sped_data_display_2015-16.pdf for more information.
Second, the Department of Labor opinion, standing alone, leaves a few doors open and suggests that FMLA leave should be given for any meetings addressing the medical care, progress and well-being of children receiving special education. While IEP meetings fall under a specific federal law, employers should not blindly approve FMLA leave for any/all requests related to family care. Rather, employers should gather the requisite amount of information needed in order to make the determination as to whether the request qualifies as a reason for taking intermittent FMLA leave. This requires training the requisite personal, namely supervisors and Human Resources to recognize such requests as employees must still adhere to the FMLA certification and notice requirements when requesting leave.