by Marti Cardi, Esq. - Senior Compliance Consultant and Legal Counsel
August 13, 2019
The Department of Labor rolled out two new developments last week just in time to leave for August vacations: First, a new opinion letter addressing whether FMLA covers time taken for specialized child educational meetings; and second, drafts of new (and improved) FMLA certification forms for public comment.
Let’s dig in!
DOL Opinion Letter FMLA2019-2-A – Meetings for Child’s Individualized Educational Program
On August 8, 2019, the DOL released Opinion Letter FMLA2019-2-A relating to whether attending a meeting to discuss a child’s Individualized Education Program (IEP) qualifies as FMLA leave.
A bit of background: The Individuals with Disabilities Education Act (IDEA) requires public schools to develop an IEP for a child who receives special education and related services with input from the child and the child’s parents, teachers, school administrators, and related services personnel. Under the IDEA, “related services” include such services as audiology services, counseling services, medical services, physical therapy, psychological services, speech-language pathology services, rehabilitation counseling services, among others.
The individual who requested the opinion letter explained the situation as follows
You explain that your children receive pediatrician-prescribed occupational, speech, and physical therapy provided by their school district, and that four times a year their school holds CSE/IEP meetings to review their educational and medical needs, well-being, and progress. You explain that these meetings include participation by “a speech pathologist, school psychologist, occupational therapist and/or physical therapist employed or contracted by the school district to provide services to the … child under the child’s IEP,” as well as teachers and school administrators. These participants provide updates regarding your children’s progress and areas of concern; review recommendations made by your children’s doctors; review any new test results; and may make recommendations for additional therapy. You ask if your wife may use intermittent FMLA leave for the care of a child to attend these meetings.
I include these details here so it is clear that these are not your everyday parent-teacher conferences or disciplinary meetings – which would generally not be covered by FMLA.
The DOL determined that these meetings did in fact qualify for FMLA intermittent leave. The wife’s (mother’s) attendance at these CSE/IEP meetings is “care for a family member … with a serious health condition” under 29 C.F.R. § 825.100(a). And, care for a family member can include “mak[ing] arrangements for changes in care.” Such FMLA coverage does not require the child’s doctor to be present nor require that the child be receiving treatment at the meetings – providing “care” is sufficient.
Pings for Employers. Be sure to read my friend Jeff Nowak’s more detailed post on his blog, FMLA Insights. Jeff provides some excellent tips for employers that you will want to heed – including, of course, training your supervisors!
But in a nutshell: When an employee requests leave to attend meetings relating to the care of a family member (here, a child in specialized education, but it could also be an elderly parent receiving detailed medical treatment), take time to analyze the situation carefully. Think broadly; don’t just deny the FMLA request because the family member’s condition falls outside our usual concept of a “serious health condition” or because the meeting doesn’t seem to fit within FMLA protection.
At Matrix our claims examiners have been alerted to this new opinion letter and its significance. If we receive a request for time off for meetings relating to care of a family member, we will analyze the request for FMLA intermittent leave correctly and obtain appropriate documentation even when the meeting seems at first glance not to be an FMLA-qualifying event.
New Draft FMLA Certification Forms – Now That’s Exciting!
Oh boy, oh boy, oh boy! New cert forms! And a chance to comment! What more could an FMLA geek ask for to relieve the summer doldrums?
Seriously, this is a welcome step in FMLA-Land. The current certification forms tend to be cumbersome and, in our experience, often don’t yield all the information the regulations entitle employers to receive. On August 7 the DOL issued a press release explaining the goal of the new forms:
The revisions will make the forms easier to understand for employers, leave administrators, healthcare providers, and employees seeking leave. The revisions will increase compliance with the law, improve customer service, and improve the administration of the law. WHD drafted the revisions with input from the public in letters, interviews, and public meetings….
The changes will reduce the time it takes a health care provider to provide information, and help leave administrators review and communicate information to employees more directly and clearly, reducing violations.
What’s the status? The DOL is soliciting public comments on the proposed forms by 11:59 p.m. on October 4, 2019. The official notice was published in the Federal Register and includes directions for submitting comments. After that date, the DOL will consider the comments received and – eventually – issue new final forms. There is no timeline for final action by the DOL and, although unlikely, they could decide not to change the forms from the current versions. Until new forms are officially adopted, the current forms remain approved by the DOL but still optional. With an expiration date on the current forms of August 31, 2021, the DOL has lots of time!
What are the changes? The changes are summarized by the DOL as:
- Fewer questions requiring written responses; replaced by statements that can be verified by simply
checking a box [These are the best changes, in our humble opinion. They should result in fewer
inconsistencies within the form and less confusion regarding the frequency and duration for intermittent
- Reorganization of medical certification forms to more quickly determine if a medical condition is a
serious health condition as defined by the FMLA
- Clarifications to reduce the demand on health care providers for follow-up information
- More information on the notification forms to better communicate specific information about leave
conditions to employees
- Changes to the qualifying exigency certification form to provide clarity to employees about what
information is required
- Changes to the military caregiver leave forms to improve consistency and ease of use
- Layout and style changes to reduce blank space and improve readability
Here are the revised forms, with links for your viewing pleasure:
- WH-380-E Certification of Health Care Provider for Employee’s Serious Health Condition
- WH-380-F Certification of Health Care Provider for Family Member’s Serious Health Condition
- WH-381 Notice of Eligibility of Rights & Responsibilities
- WH-382 Designation Notice
- WH-384 Certification of Qualifying Exigency for Military Family Leave
- WH-385 Certification for Serious Injury or Illness of Covered Servicemember—for Military Family Leave
- WH-385-V Certification for Serious Injury or Illness of a Veteran for Military Caregiver Leave
What is Matrix Doing? Several years ago, we at Matrix designed our own certification forms for FMLA leave necessitated by the employee’s or a family member’s serious health condition. Like the newly proposed DOL revisions, we adopted a simpler means of identifying the type of serious health condition involved with a check-the-box format and reconfigured the questions about leave parameters, including frequency and duration of episodes for intermittent leave. As the DOL is now hoping, these resulted in significantly clearer provider responses and much less need for follow-up and clarification.
We will review the DOL’s proposed forms and submit comments by the deadline. If you would like to share with us your own thoughts on the draft forms, please do so! Once the forms are finalized we will evaluate whether they have gone far enough to simplify leave management and consider using the DOL forms going forward.
MATRIX CAN HELP!
At Matrix Absence Management, we administer FMLA leaves for employers day in, day out, every day. Our claims examiners are experts in reviewing FMLA certification forms to ensure we have received all the information the employer is entitled to and that it is clear and makes sense. Want to harness that expertise? Contact us at [email protected] or through your Account Manager.