Pension & Benefits News New DOL opinion letter addresses FMLA intermittent leave
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Monday, August 19, 2019

New DOL opinion letter addresses FMLA intermittent leave

By Pension and Benefits Editorial Staff

On August 8, the DOL’s Wage and Hour Division released three new opinion letters addressing compliance issues under the FMLA and FLSA. Specifically, the letters discuss whether time spent attending meetings related to a child’s individualized education program qualifies for FMLA leave; under the FLSA, the application of the Section 7(k) overtime exemption to public agency employees engaged in both fire protection and law enforcement activities; and the employment status, also under the FLSA, of volunteer reserve deputies who may perform paid extra duty work for third parties.

Intermittent FMLA leave. In FMLA2019-2-A, WHD Administrator Cheryl Stanton concluded that a mother’s need to attend Committee on Special Education (CSE) and/or Individualized Education Program (IEP) meetings addressing the educational and special medical needs of her children with serious health conditions (as certified by a health care provider) is a qualifying reason for taking intermittent FMLA leave.

Meetings. The children received pediatrician-prescribed occupational, speech, and physical therapy provided by their school district. Four times a year their school held CSE/IEP meetings to review their educational and medical needs, well-being, and progress. These meetings included participation by a speech pathologist, school psychologist, and occupational therapist and/or physical therapist employed or contracted by the school district to provide services to the child under the child’s IEP. Teachers and school administrators also attended. The meeting participants provided updates on the children’s progress and areas of concern, reviewed recommendations made by the children’s doctors, reviewed any new test results, and may make recommendations for additional therapy.

Essential to providing care. Among other things, Stanton noted that the WHD had issued a previous letter stating "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" (FMLA-94).

Here, it likewise appears that the mother’s attendance at her children’s IEP meetings is ‘essential to [her] ability to provide appropriate physical or psychological care’ to the children. The mother attended these meetings to help participants make medical decisions about the children’s medically prescribed speech, physical, and occupational therapy; to discuss the children’s wellbeing and progress with the providers of the services; and to ensure that the children’s school environment was suitable to their medical, social, and academic needs. It was not necessary for the child’s doctor to be present at the meetings in order for the mother’s leave to qualify for intermittent FMLA leave.

SOURCE: FMLA2019-2-A, August 8, 2019.

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