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.
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 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
- Certification of Health Care Provider for Family Member’s Serious Health Condition (Form WH-380-F)
- Qualifying Reasons for Leave under the Family and Medical Leave Act Face Sheet
- Family and Medical Leave Act Employer Guide
- Designation Notice
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.