School’s out for summer! But the FMLA doesn’t cover day care

The FMLA is fairly flexible about the kinds of situations that qualify for FMLA leave. However, there are limits.

Believe it or not, some employees are under the impression they can use FMLA leave during the summer months to care for their minor children instead of sending them to summer camp or day care.

That’s not true unless the child has a serious health condition that prevents participation in camp or day care. Otherwise, parents are expected to make conventional child care arrangements during the summer.

Recent case: Veda Stroder worked for UPS and had a 4-year-old son. The child developed speech problems, and the local school district provided him with twice-weekly, 30-minute speech-therapy sessions during the months he was enrolled in a full-time day care center sponsored by the school district. As the school year was winding down, a speech therapist concluded that Stroder’s son didn’t qualify for speech therapy in the summer, but could continue in the district’s full-time day care program. But the program was in a different facility than the boy usually attended.

The child didn’t like the new building and started having emotional problems that affected his speech.

The therapist then recommended that Stroder spend some extra time in the evenings reading to her son and working with his speech skills.

Stroder then pulled her son out of day care for the summer, ostensibly so she could work more intensely, and applied for FMLA leave. She asked the family’s pediatrician to provide an FMLA certification.

When UPS reviewed the form, HR concluded that the doctor hadn’t said the boy suffered from a serious health condition or that he needed to be home with his mother during the summer instead of at day care. UPS denied the FMLA request and Stroder was terminated when she didn’t come back to work.

She sued, alleging she should have been approved for FMLA leave.

The court disagreed. It said the child had to have a serious health condition that prevented him from performing “his regular daily activities as a 4-year-old boy.”

In other words, his condition had to preclude attending day care or nursery school. At the time, no medical professional was willing to say that was the case. The speech therapist even testified that Stroder could easily have completed the speech program she recommended in the evenings.

The court dismissed the case and upheld Stroder’s firing. (Stroder v. United Parcel Service, No. 1:09-CV-335, MD NC, 2010)

The bottom line: Parents can’t simply claim they need to care for children when school is out and take their 12 weeks of FMLA leave in the summer. That might be economically advantageous for parents, but it isn’t covered by the FMLA.

Final note: FMLA leave to care for a child without a serious health condition is available for a newly adopted or newborn without a serious health condition. If the child is newly adopted or newly placed in foster care, the child does not have to be a newborn.