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Attorney Blog, Human Resources

DOL Opinion Letter Regarding Intermittent FMLA

Attorney Harrison Oldham

The United States Department of Labor (“DOL”) has issued an opinion letter advising that eligible employees may take intermittent Family and Medical Leave Act (“”) leave to attend Individualized Education Program (“IEP”) meetings addressing the educational and special medical needs of their children. The opinion letter, which constitutes formal guidance on the interpretation of the , expands the use of leave. A copy of the opinion letter may be found here [https://www.dol.gov/whd/opinion//2019/2019_08_08_2A_.pdf].

Background

The DOL’s opinion letter was issued in response to an inquiry from a concerned parent indicating that their employer had not approved a request to take intermittent FMLA leave to attend scheduled IEP meetings. The parent’s letter indicated that the parent’s two children have qualifying serious health conditions under the FMLA, and receive pediatrician-prescribed occupational, speech and physical therapy provided by the school district. The parent also indicated that the school holds IEP meetings four times a year to review the children’s educational and medical needs, well-being and progress.

According to the opinion, the parents had received a certification from their children’s doctors supporting the parent’s need to take intermittent leave to care for their two children. The mother of the children’s employer had approved her taking FMLA leave intermittently to bring the children to medical appointments. However, the mother’s employer did not approve her request to take FMLA leave intermittently to attend CSE/IEP meetings.

The Federal Individuals with Disabilities Improvement Act of 2004 requires public schools to develop an IEP for every student with a disability who meets the federal and state requirements for special education.  Additionally, the FMLA permits an eligible employee to take up to 12 weeks of unpaid, job-protected leave per year to care for an immediate family member of the employee who has a serious health condition. 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.  Care for a family member includes physical and psychological care as well as making arrangements for that care.

An employee may use FMLA leave intermittently or on a reduced leave schedule when medically necessary because of a family member’s serious health condition.  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.

Opinion Letter

Because the FMLA definition of “care” includes making arrangements for care, the DOL’s letter advises that an employee’s attendance at an IEP meeting constitutes making arrangements for the child’s care and is a qualifying reason to take intermittent FMLA leave. While the employee’s child must have a serious health condition certified by a health care provider, the health care provider does not need to be present at an IEP meeting for the meeting to qualify for FMLA leave.

This opinion letter is consistent with existing DOL policy. In a previous opinion letter, the Department stated 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.

It is important for employers to keep in mind that an employee is permitted to take FMLA leave intermittently to attend IEP meetings. Therefore, employers should be aware IEP meetings qualify for FMLA leave so this type of leave is not denied. However, because the opinion letter specifically responds to a question involving scheduled IEP meetings, it does not address questions involving other similar circumstances.

About Harrison Oldham

Harrison grew up in Mansfield, Texas. He attended Texas A&M University for his bachelor’s degree, where he met his wonderful wife, Kelsey. After graduating magna cum laude from Texas A&M, he attended SMU Dedman School of Law, graduating with honors in 2012. Today, Harrison and his wife live in Dallas, Texas with their son, Teddy.

Since graduating from SMU Law, Harrison has worked exclusively in the field of business law. He has spent time in private practice and in-house, working with clients of every size; from single person startups to Fortune 250 companies. Today his practice focuses on serving the diverse needs of businesses and individuals throughout Texas. You can learn more about Harrison by visiting his website, at: http://lonestarbusinesslaw.com/.

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