A U.S. Department of Labor opinion letter, published on August 8, 2019, found certain types of parent-teacher conferences can be considered qualified leave under the Family Medical Leave Act (FMLA). As a result, some employers may be required to provide employees leave to attend such meetings.
A refresher on the FMLA
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 for 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. Importantly, 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 care facility; or continuing treatment by a health care provider – is a category for FMLA covered leave.
Not your ordinary parent-teacher conference
In this particular instance, an employee’s husband requested an opinion from the DOL as to 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 purpose of the quarterly CSE meetings was to discuss the children’s Individual Education Programs (IEP). 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 CSEs 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’ recommendations and test results, and made recommendations for additional therapy.
The DOL concluded that attending these meetings qualified for FMLA leave as care for a son or daughter with a serious health condition. According to the DOL’s own regulations, caring for a family member includes both physical and psychological care, and may also include making arrangements for changes in care. Further, intermittent leave can be applied not only when the condition itself is intermittent, but also when the employee is needed intermittently. The DOL cited several opinions by various courts which held similar instances of employee leave to make care decisions. Other examples included finding daycare for an autistic child or deciding whether to keep a parent on life support, which were treated as qualified leave under the FMLA. The DOL also cited a prior opinion letter finding that “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 this case, the DOL found that the employee’s attendance at the CSE meetings was “‘essential to [her] ability to provide appropriate physical and psychological care’ to [her] children.”
While the DOL’s opinion letter was examining a specific set of circumstances— namely, CSE meetings—the Department specifically noted that 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 determined that a doctor did not need to be present at the meeting for it to qualify for FMLA leave. If the purpose of the meeting is to allow the employee to make medical decisions regarding a child’s serious health condition, to discuss such a child’s progress, or to ensure such a child’s environment is suitable for his or her needs, then it may be covered by the FMLA. Consequently, if an employee has a child with a serious health condition, and is requesting leave to attend school meetings related to that condition, an employer should consider speaking with legal counsel to determine whether such an absence would qualify for FMLA leave.
Next steps for employers
Moving forward, employers should take notice of this opinion and be prepared to make changes in their own policies and procedures accordingly. While DOL opinion letters do not have the force of law, they are clear indications of how the agency would view a similar situation if it was considering an enforcement action. Further, courts routinely defer to, or adopt, the DOL’s opinions on FMLA questions. With that in mind, employers should consider training human resource employees and management on this new development and how to handle similar requests. Additionally, current FMLA policy language in handbooks may need to be revised and updated.
Department of Labor FMLA 2019-2-A (8/8/19)
