Sometimes it feels like the doctor appointments, therapy appointments, meetings, and the like are never-ending when you have a child with Special Needs. Many parents find the scheduling overwhelming and the constant need for time away from work adds pressure to the situation. Employers can also be uncertain about the application of the Family and Medical Leave Act (FMLA) to parents of children with Special Needs. Recently administrative agencies have provided clarification which impacts those affected.
Clarification on FMLA for Parents of Children with Special Needs
The FMLA defines a serious health condition as an illness, injury, impairment, physical or mental condition that involves inpatient care or continuing treatment by a healthcare provider.
It provides in relevant part, that an eligible employee of a covered employer may take up to twelve 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.”
For a parent of a child with special needs, it has always been clear that any direct medical appointments that are required for the child were protected by the extension of FMLA. However, medical appointments are only a small portion of what is required to ensure that a child is receiving the proper care and treatment.
Using FMLA Leave for More than Medical Appointments
FMLA has defined ‘caring for’ a family member with a serious health condition to include making arrangements for changes in care. A recent case opened the discussion of FMLA coverage for parents of children with Special Needs. See, Wegelin v. Reading Hosp. & Med. Ctr., 909 F. Supp. 2d 412, (E.D. Pa. 2012).
In Wegelin, the court held that an employee was entitled to take FMLA leave to find a daycare for her daughter with an autism spectrum disorder and a visual impairment. Additionally, the Court opined that an employee may make arrangements for changes in care even if that care does not involve a facility that provides medical treatment. However, since that case was decided there has not yet been a clear statement from the Department of Labor regarding other appointments that qualify for FMLA protection.
FMLA and Autism: What If a Formal Diagnosis Is Hard to Get?
One of the biggest hurdles parents face when seeking FMLA protection for an autistic child is the diagnosis itself. A formal autism evaluation can be expensive, the waiting lists are often months long, and not every family has easy access to a developmental specialist. The good news? You don’t always need a stand-alone autism diagnosis on paper to qualify for FMLA.
Here’s the key thing to understand: FMLA protection is tied to a “serious health condition,” and that condition can be established through related or co-occurring conditions that frequently accompany autism. Many autistic children also experience:
- Anxiety
- Depression
- Panic attacks
- Sleep disorders or chronic sleep problems
- Sensory processing challenges that require ongoing treatment
If your child is receiving continuing treatment for any of these conditions, that treatment can form the basis of a qualifying serious health condition under FMLA, even while you’re still navigating the formal autism diagnosis process. In other words, you don’t have to wait for the perfect paperwork to start protecting your job.
Which Healthcare Providers Can Complete Your FMLA Paperwork?
A common point of confusion is whether you need a fancy specialist to fill out FMLA forms. You usually don’t. The FMLA allows a range of healthcare providers to complete the required medical certification, and that includes:
- Your child’s primary care physician (PCP) – often the easiest and quickest option
- A psychiatrist – especially helpful when anxiety, depression, or related conditions are involved
- A psychiatric nurse practitioner (Psych DNP or PMHNP) – fully qualified to provide certification in most cases
- A licensed clinical psychologist – in many situations
- A developmental pediatrician or neurologist – if your child is already established with one
What these providers typically need from you is straightforward: a description of the condition, the treatment plan, the frequency of appointments or care needs, and an explanation of why your involvement is medically necessary. Your provider will document this on the Certification of Health Care Provider for Family Member’s Serious Health Condition (Form WH-380-F).
Don’t let the fear of “needing a specialist” stop you. Start with whichever provider knows your child best and can speak to their ongoing care.
Addressing FMLA and IEP Meetings
On or about August 8, 2019, the US Department of Labor, Wage and Hour Division, issued an Opinion Letter directly addressing the intersection of FMLA and IEP meetings. The letter states that attendance at IEP meetings is essential to a parent’s ability to provide appropriate physical or psychological care. The attendance at these meetings helps participants make medical decisions concerning the child’s medically-prescribed speech, physical, and occupational therapy.
Protection for Time Needed to Attend IEP Meetings
For parents of children with special needs, the application of FMLA protection for the time needed to attend IEP meetings can be job saving. Therefore, so long as the parent meets the qualification for FMLA protection, employers are required to allow eligible employees time off for IEP meetings.
In order to ensure that the employer recognizes the FMLA request, parents should be prepared to submit any appropriate documentation regarding the request, including but not limited to a medical certification required under FMLA.
FMLA vs. ADA Accommodations: What’s the Difference?
Many parents don’t realize there are actually two separate legal tools that can help working caregivers, and they work very differently. Understanding both can give you more options.
FMLA (Family and Medical Leave Act)
- What it does: Provides up to 12 weeks of job-protected, unpaid leave per year to care for a child with a serious health condition.
- Best for: Time away from work, including attending IEP meetings, medical and therapy appointments, and arranging changes in care.
- Documentation: Requires a medical certification from a healthcare provider (Form WH-380-F).
- Cost to you: The leave is unpaid, but your job and health benefits are protected.
- Process: You request FMLA, your provider certifies the condition, and your employer designates the leave.
ADA (Americans with Disabilities Act) Accommodations
- What it does: Requires employers to provide reasonable accommodations, which can include schedule adjustments, work-from-home days, or modified hours, when needed because of a disability.
- Important note: The ADA’s protection for caregivers is more limited than its protection for employees with their own disabilities. However, accommodations like flexible scheduling are often negotiated to help parents manage caregiving responsibilities.
- Documentation: Typically involves an interactive discussion with your employer and may require less formal medical paperwork than FMLA, though documentation is often requested.
- Cost to you: Accommodations can allow you to keep working (and getting paid) rather than taking unpaid leave.
- Process: You request an accommodation, you and your employer engage in an “interactive process,” and the employer determines what reasonable accommodation can be provided.
The takeaway? FMLA is your tool when you need protected time off. Workplace flexibility arrangements may be your tool when you’d rather stay on the job with an adjusted schedule. In many cases, families benefit from understanding how both can work together.
Intermittent FMLA Leave and Working from Home
You don’t have to take your 12 weeks of FMLA all at once. One of the most useful, and most underused, options for parents is intermittent FMLA leave. This allows you to take leave in smaller blocks of time, which is perfect for the realities of parenting a child with special needs.
Intermittent leave can be used for:
- Attending recurring therapy or medical appointments
- Attending IEP meetings
- Caring for your child during a flare-up of a related condition like a severe anxiety or sleep episode
- Stepping in when a childcare arrangement falls through
In addition to intermittent leave, telecommuting and work-from-home arrangements have come up in FMLA litigation, as we saw in the Wink case above. Courts have recognized that allowing a parent to work from home while caring for an autistic child can be a legitimate part of meeting both the family’s needs and FMLA’s protections. If your job can be done remotely, this is a conversation worth having with your employer, ideally documented in writing.
A Step-by-Step Guide to Requesting FMLA
Feeling overwhelmed by the process? Here’s a simple, practical roadmap from the employee’s perspective:
- Confirm you’re eligible. Generally, you must have worked for your employer for at least 12 months, logged at least 1,250 hours in the past year, and work at a location with 50 or more employees within 75 miles.
- Request the FMLA forms. Contact your HR department or supervisor and let them know you need FMLA leave to care for your child. Ask for the necessary FMLA paperwork, including the medical certification form.
- Have your healthcare provider complete the certification. Bring Form WH-380-F to your child’s PCP, psychiatrist, psych nurse practitioner, or other treating provider. Make sure they describe the condition, the treatment plan, and why your involvement is medically necessary.
- Submit the paperwork on time. Return the completed certification to your employer, usually within 15 calendar days of receiving the forms. Submit it the way your employer prefers, whether that’s email, fax, or in person, and keep a copy for your records.
- Watch for the Designation Notice. Your employer should provide a Designation Notice confirming whether your leave is approved and counts against your FMLA entitlement.
- Keep communication open. Just as you would with any planned medical treatment, keep your employer in the loop about your schedule and needs. Good communication prevents misunderstandings and helps protect your rights.
- Document everything. Save copies of every form, email, and notice. If a dispute ever arises, your paper trail is your best friend.
FMLA and a Child’s 504 Plan
However, there are limits on this Opinion Letter provided by the Administrative Agency which parents must be aware of. Given the fact that the Opinion Letter was directed at a specific question, the issue of whether FMLA protection extends to meetings for a child’s 504 Plan was not addressed.
Section 504 of the Rehabilitation Act of 1973 has a broader definition of disability, therefore, a child may qualify for a 504 Plan, but not for an IEP. This distinction may or may not change the application of FMLA requirements to such a request. It is something that remains unclear but a valid discussion to have with an employer if such a need arises.
Does FMLA Cover Other School Meetings?
No, the parent must understand that this protection only applies to official IEP meetings and not other meetings the school may request in order to address other ongoing issues.
Planning for FMLA Leave
Lastly, as this Opinion Letter has only recently been released and this application of FMLA protection is not an over-all obvious application, parents need to be prepared to present the relevant information to employers who have questions. As with any planned medical treatment or appointments, keep lines of communication open with your employer. Employers also need to train their staff regarding this issue.
Resources for Parents of Children with Special Needs
Understanding Your Family’s Rights and Protections
If you have any questions about protections that might be available for you and your child with special needs, please contact Sterk Family Law to schedule a free consultation with one of our lawyers 815-600-8950.
Serving Clients in Cook County, Will County Kane County and DuPage County.