By: Abby S. Busler and Laurie E. Meyer
Recently, the United States Department of Labor (DOL) issued an opinion letter addressing whether an employee may take leave under the Family and Medical Leave Act (FMLA) to attend a meeting to discuss the Individualized Education Program (IEP) of the employee’s child. In the situation posed to the DOL, an employee had two children with qualifying serious health conditions under the FMLA, and whose doctor had provided proper certification supporting the need for intermittent care for the children. The employer approved the employee’s intermittent leave under FMLA to bring her children to medical appointments. However, the employer denied the employee’s request to take FMLA leave to attend the children’s IEP meetings. The DOL determined that the employer violated the FMLA.
As background, if a child is found eligible to receive special education and related services under the Individuals with Disabilities Education Act (IDEA), a public school must develop an IEP and meet regularly to revise and edit the plan as necessary. A child’s parents, teachers, school administrators and related services personnel, such as speech pathologists or occupational therapists, attend IEP meetings, depending on the specific child and his/her needs. The team will provide updates regarding the child’s progress, areas of concern, review recommendations and modify the IEP as necessary.
As applied to the present matter, the DOL determined that the employee’s need to attend her children’s IEP meetings “addressing the educational and special medical needs of [her] children – who have serious health conditions as certified by a health care provider – is a qualifying reason for taking intermittent FMLA leave.” The DOL explained that attendance at the IEP meetings was essential to her ability to provide appropriate physical or psychological “care for” her children. 29 C.F.R § 825.112(a)(3). The regulation’s “to care for” language supports an employee’s need to “make arrangements for changes in care” emphasizing that those changes surrounding school services are discussed at the school during an IEP meeting. The parent is an essential member of their child’s IEP team and participates to discuss medical decisions and progress of the children’s specialized educational services.
The DOL concluded that care may occur solely at a school; it does not need to involve a facility that provides medical treatment for FMLA leave to be available to the parent. Further, the child’s doctor or other health care provider need not be present at the meeting for it to qualify as FMLA leave.
While this opinion letter does indeed provide a more expansive view of intermittent FMLA leave, employers should also be aware of what it does not do:
- It does not suggest that employees have a broad right to attend any school meeting in connection with their child. It does not, generally speaking, apply to normal parent-teacher conferences or disciplinary meetings with teachers. Rather, the employee may take FMLA leave to attend a meeting at a school at which the employee is (a) helping participants make medical decisions concerning the child’s medically prescribed therapy; (b) discussing the child’s wellbeing and progress with the providers of such services, and/or (c) ensuring that the child’s school environment is suitable to his or her medical, social, or academic needs.
- It does not suspend the FMLA’s certification requirements. If the employee has not already submitted certification paperwork establishing that his or her child has a serious health condition, then the employer can and should request it.
- It also does not suspend the FMLA’s normal notice requirements. An employer can still require that the employee provide advance notice where possible. This should usually not be a problem for IEP meetings, since those are generally scheduled well in advance.
If you have any questions regarding this article, please contact your Davis|Kuelthau attorney, the authors linked above or the related practice group chair linked here.