In an August 8, 2019 opinion letter, the U.S. Department of Labor’s Wage and Hour Division (WHD) shed some light on what counts as “caring for” a family member under the FMLA. In Opinion Letter FMLA2019-2-A, the WHD found that a parent was entitled to take intermittent FMLA leave to attend a meeting at her child’s school to discuss the child’s Individualized Education Program (“IEP”). Such meetings were held four times per year and were attended by a number of professionals, including a speech pathologist, school psychologist, other therapists, teachers and school administrators. The parent had been told by her employer that attendance at these meetings was not covered by the FMLA.
The FMLA allows eligible employees to use protected leave to “care for” a family member with a serious health condition. 29 U.S.C. §2612. The Department of Labor’s FMLA regulations, however, provide little guidance on what specific circumstances count as “caring for” a family member. The regulations acknowledge such care “encompasses both physical and psychological care,” and includes situations where the “family member is unable to care for his or her own basic medical, hygienic, or nutritional needs or safety.” The regulations state that FMLA leave can be used to transport a family member to a medical appointment, as well as “substitut[ing] for others who normally care for the family member,” or “to make arrangements for changes in care, such as transfer to a nursing home.” “Psychological comfort and reassurance” expressly counts as care.
Courts have not always agreed on how to apply these rules. There are inconsistent decisions on whether attending a “dream trip” or vacation with a seriously ill family member qualifies as FMLA leave. Courts generally have found that handling errands or housework for a seriously ill family member does not qualify as “caring for” that individual under the FMLA. Generally, attending care meetings with health care personnel has been found to qualify, and one court held that attendance at a ceremony for an employee’s terminally ill parent also counted as “caring for” the family member.
In the opinion letter, the WHD found that attendance at the IEP meetings qualified as “care for a family member” because part of the purpose of these meetings was to make arrangements for changes in care. The WHD pointed to a previous opinion letter, in which the Division had found that attending “care conferences” related to a parent’s health condition qualified for FMLA leave. This was because the employee’s attendance at these conferences, during which the individual’s health care providers (nurses, dieticians, physical therapists, activity directors, doctors, etc.) discussed the individual’s medical condition, needs, incidents, and well being was “clearly essential” to the employee’s ability to provide appropriate physical or psychological care. In the case of the IEP meeting, similarly, the Division found that the parent’s attendance was “essential to [her] ability to provide appropriate physical or psychological care” for her children, since she “attends these meetings to help participants make medical decisions concerning [her] children’s medically-prescribed speech, physical, and occupational therapy; to discuss [her] children’s wellbeing and progress with the providers of such services; and to ensure that [her] children’s school environment is suitable to their medical, social, and academic needs.”
Employers should tread lightly before denying requests for FMLA leave involving less conventional forms of care. Depending on the circumstances, attendance at meetings, accompanying a family member on travel, and being present at special events can qualify for FMLA leave. Rather than take a restrictive view of what counts as “caring for” a family member, employers should review current guidance from the WHD and case law in their jurisdiction, and remember that “caring for” a family member is not limited to direct, physical care.
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