Member Article

In an opinion letter issued Aug. 8, 2019, the Wage and Hour Division of the United States Department of Labor (DOL) concluded an employee may take leave under the Family and Medical Leave Act (FMLA) to attend meetings to discuss the Individualized Education Plan (IEP) of the employee’s child with a qualifying serious health condition.

BACKGROUND

The employee has two children with qualifying serious health conditions under FMLA. The children’s pediatrician provided medical certification for the employee to take intermittent leave to care for the children. Although the employer approved the employee’s intermittent FMLA leave to bring the children to medical appointments, the employer denied the employee’s request to take intermittent FMLA leave to attend IEP meetings.

The children’s pediatrician had prescribed occupational, speech, and physical therapy, all of which were provided by the school district. The school held IEP meetings to review the children’s education and medical needs, well-being, and progress. The IEP meetings generally included teachers, school administrators, a speech pathologist, a school psychologist, an occupational therapist, and/or a physical therapist employed or contracted by the school district to provide the services identified in each child’s IEP. The IEP participants provided updates regarding the children’s progress and areas of concern, reviewed recommendations made by the children’s physicians, reviewed new test results, and made recommendations for additional therapy. The question presented to the DOL was whether the employee could use intermittent FMLA leave for the care of a child to attend the IEP meetings. 

LEGAL PRINCIPLES

FMLA allows an employee to take up to 12 weeks of job-protected unpaid leave per year to care for the employee’s spouse, son, daughter, or parent with a serious health condition. An employee may use FMLA leave intermittently or on a reduced leave schedule when medically necessary due to a family member’s serious health condition. Care for a family member includes both physical and psychological care and making arrangements for changes in care.

DOL’s ANALYSIS

The DOL concluded the employee’s attendance at IEP meetings for her children with serious health conditions qualifies for FMLA leave.

FMLA specifically covers making arrangements for changes in care for a family member with a serious health condition. The DOL noted courts have upheld the use of FMLA leave for employees to help make medical decisions on behalf of a hospitalized parent or to make arrangements to find suitable child care for a child with a disability. The DOL noted FMLA speaks in terms of care (not treatment) and an employee may take FMLA leave to make arrangements for changes in care even if the care does not involve a medical facility (such as finding daycare for a child with autism and vision impairment). The DOL had also previously opined an employee could take FMLA leave to attend care conferences related to her mother’s health condition, as attendance was essential to the employee’s ability to provide appropriate physical or psychological care.

Here, the DOL concluded the employee’s attendance at IEP meetings is essential to her ability to provide appropriate physical and psychological care for her children. The employee attends the IEP meetings to help participants make decisions regarding speech, physical, and occupational therapy, to discuss the children’s well-being and progress with the providers of these services, and ensure the children’s school environment is suitable for their medical, social, and academic needs. The DOL noted the children’s physician need not be present at the IEP meetings for the leave to qualify as intermittent FMLA leave.

NEXT STEPS

For years, many employers have trained human resources and management staff that FMLA does not generally cover school meetings. The DOL’s opinion letter concludes otherwise as to children with serious health conditions. Here are some training points:

• Not every school meeting for every child will be covered by FMLA. For an employee to qualify for intermittent FMLA leave to attend a school meeting, the employee’s child must have a “serious health condition” within the meaning of FMLA. An employer can require an employee making such a request to provide medical certification regarding the child’s serious health condition.
• The DOL’s analysis focused on the participation of health care providers, such as therapists, in IEP meetings, and the employee’s need to make arrangements for the care of her children with a serious health condition. Based upon the DOL’s analysis, an employer may need to consider extending intermittent FMLA to other types of school meetings during which an employee is making arrangements for the care of a child with a serious health condition, particularly meetings with school health care providers.
• Members of an employer’s human resources or management teams may not be familiar with special education services provided at school or terms of art like “IEP.” Although employees must generally provide enough information for an employer to conclude attendance at a school meeting qualifies for FMLA leave, employers should provide their human resources and management teams with enough training so they understand requests to attend an IEP meeting or to meet with care providers at school concerning care for a child with a serious health condition must be further evaluated for FMLA coverage.

For more information regarding this issue, please contact your Dinsmore labor and employment attorney.