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  • Certain Types of Parent-Teacher Talks Qualify for FMLA Leave, Says DOL

    Employers Group | 10/31/2019 | News

    By Harrison Kosmider, McAfee & Taft

    A recent U.S. Department of Labor (DOL) Opinion Letter, found certain types of parent-teacher conferences can be considered qualified leave under the Family and Medical Leave Act (FMLA). As a result, some of you may have to provide employees with leave to attend the meetings.

    FMLA Refresher

    The FMLA is a federal statute that generally applies to private employers with 50 or more employees as well as public employers of any size. It provides up to 12 weeks of unpaid, job-protected leave benefits to eligible employees. The leave may be taken in one segment, multiple segments, or intermittently.

    Most important, only certain types of leave qualify for FMLA protection. Under the statute, care for a son or daughter with a serious health condition—an illness, injury, impairment, or physical or mental condition that involves inpatient care in a hospital, hospice, or residential medical facility or continuing treatment by a healthcare provider—is a category of FMLA covered leave.

    Not Your Ordinary Parent-Teacher Conference

    An employee’s husband requested an opinion from the DOL about whether his wife’s employer should be required to provide intermittent FMLA leave for her to attend Committee on Special Education (CSE) meetings at her children’s school. Both of the employee’s children had qualifying serious health conditions and required occupational, speech, and physical therapy.

    The quarterly CSE meetings’ purpose was to discuss the children’s Individual Education Programs (IEPs). IEPs are federally mandated, under the Individuals with Disabilities Education Act (IDEA), for children who receive special education and related services at public schools. The children’s pediatrician-prescribed therapy was covered as “related services” under the IDEA.

    The CSE meetings were attended by the parent, teachers, school administrators, a speech pathologist, a school psychologist, and the school’s occupational and/or physical therapist. At the meetings, participants provided updates, reviewed doctors’ notes, and test results, and made recommendations for additional therapy.

    The DOL concluded that attending the meetings qualified for FMLA leave as care for a son or daughter with a serious health condition. According to the agency’s own regulations, caring for a family member includes both physical and psychological care as well as making arrangements for changes in the care.

    Further, intermittent leave can be applied not only when the condition itself is intermittent but when the employee is needed intermittently. The DOL cited several court opinions involving employees who left to make care decisions and were treated as qualified for FMLA leave:

    • Finding daycare for an autistic child; or
    • Deciding whether to keep a parent on life support.

    The DOL also cited an earlier Opinion Letter finding “an employee was entitled to take FMLA leave to attend ‘[c]are [c]onferences related to her mother’s health condition,’ because her attendance at these conferences was ‘clearly essential to the employee’s ability to provide appropriate physical or psychological care’ to her mother.”

    In determining intermittent FMLA leave was appropriate in the CSE case, the agency found the employee’s attendance at the meetings was “‘essential to [her] ability to provide appropriate physical and psychological care’ to [her] children.”

    While the Opinion Letter was examining a specific set of circumstances—namely, CSE meetings—the DOL noted its analysis would apply to “any meeting held pursuant to the IDEA, and any applicable state or local law, regardless of the term used for such meeting.” It also said a doctor did not need to be present for the meeting to qualify for FMLA leave.

    If the CSE meeting’s purpose is to allow the employee to (1) make medical decisions about a child’s serious health condition, (2) discuss the child’s progress, or (3) ensure the environment is suitable for his needs, then the FMLA may cover it.

    Consequently, if an employee has a child with a serious health condition and is requesting leave to attend school meetings related to the condition, you should consider speaking with legal counsel to determine whether the absence would qualify for FMLA leave.

    Next Steps for Employers

    While DOL Opinion Letters don’t have the force of law, they are clear indications of how the agency would view a similar situation if it was considering enforcement action. Further, courts routinely defer to (or adopt) the agency’s opinions on FMLA questions.

    With that in mind, you should consider training your HR employees and management about the new development and how to handle similar requests. Additionally, you may need to revise and update your handbooks’ current FMLA policy language.