FMLA leave likely will increase as parents learn that time off for this purpose is an option, said Sarah Platt, an attorney with Ogletree Deakins in Milwaukee.
"This adds to a long list of the reasons why someone can take FMLA leave," noted Gerald Hathaway, an attorney with Drinker Biddle in New York City. About 20 percent of all households with children have at least one child with special needs, according to the U.S. Department of Health and Human Services National Survey of Children with Special Health Care Needs.
Request to Use FMLA for IEP Meetings Was Denied
In the opinion letter (FMLA2019-2-A), a woman received certification from her children's doctors supporting her need to take periodic leave to care for her two children. Her employer approved intermittent FMLA leave to take the children to medical appointments but denied her request to use FMLA time off to attend IEP meetings.
The school district provided the children with doctor-prescribed occupational, speech and physical therapy. Four times a year, the school held IEP meetings to review the students' education and medical needs, well-being, and progress. The meetings were attended by, in addition to teachers and school administrators, a speech pathologist, a school psychologist, an occupational therapist and/or a physical therapist employed by the school district to serve the children.
These individuals gave updates on the children's progress and areas of concern, reviewed recommendations made by the children's doctors, reviewed any new test results and made recommendations for additional therapy.
The DOL concluded that the mother's need to attend IEP meetings is a qualifying reason for taking intermittent FMLA leave. Her attendance at IEP meetings is essential to her ability to provide appropriate physical or psychological care to her children, the DOL noted.
Her attendance helps meeting participants:
- Make medical decisions concerning her children's medically prescribed speech, physical and occupational therapy.
- Discuss her children's well-being and progress with the therapy providers.
- Ensure her children's school environment is suitable to their medical, social and academic needs.
The children's doctor does not have to be present at the meetings for the time off to qualify for FMLA leave, the DOL wrote.
Plan Meetings with Workers
FMLA leave for IEP meetings should be manageable, Platt said.
IEP meetings typically are scheduled in advance, noted Scott Eldridge, an attorney with Miller Canfield in Lansing, Mich., so periodic leave for them is not as disruptive as unexpected intermittent leave. Plus, IEP meetings occur only a few times per school year.
An employer can require the employee to help identify a meeting time that is the least disruptive, and, Platt added, it can require the worker to provide notice.
"As with any planned medical treatment, keep open lines of communication," she said. The employee may be able to schedule the meeting early in the morning in order to come to work late.
But if an employee can show that meetings must occur at a specific time or day as requested, the employer must provide FMLA leave, absent special circumstances unique to the employer's business needs, said Stephanie Dodge Gournis, an attorney with Drinker Biddle in Chicago.
Most likely, an employee who is requesting FMLA time off for IEP meetings already has submitted documentation that his or her child has a serious health condition in order to get FMLA leave for the child's medical appointments. But if not, the employer can request it. The safest approach is to use the DOL's form (Form WH-380-F) to document a family member's serious health condition, according to Platt.
"Certification that the child has a serious health condition is probably sufficient without evidence of an IEP," said Joan Casciari, an attorney with Seyfarth Shaw in Chicago.
Expansive Interpretation of Opinion Letter Is Possible
"Whether the IEP exists is almost irrelevant if the employee has advised that he or she needs to take FMLA leave to attend a meeting at school that is focused on issues associated with the child's serious health condition," said Marjory Robertson, assistant vice president and senior counsel for disability insurance company Sun Life Financial in Wellesley Hills, Mass. "As the DOL points out, caring for a child with a serious health condition can include a wide range of activities."
But some employees may try to expand the DOL's interpretation to apply to emergency meetings with a teacher if a child with a serious health condition had a bad day. This opinion letter does not provide a broad right for all school appointments, Platt said.
The challenge for employers will be determining how an IEP meeting differs from similar school meetings that clearly would not be covered by the FMLA—for example, a student disciplinary meeting, said Jeff Nowak, an attorney with Littler in Chicago.
Some states nonetheless have laws requiring employers to provide leave for parents and guardians to attend some of their children's school-related activities. Jurisdictions with these laws include California, Illinois, Massachusetts, Minnesota, Nevada, North Carolina, Rhode Island, Vermont and Washington, D.C.
The opinion letter "further complicates and burdens FMLA administration," Nowak said.
Many employers would give workers time off for IEP meetings even without the opinion letter, Hathaway noted. "But the community of parents having children with special needs is fairly well-connected, in social media and other resources," he said, "and so this opinion letter should become well-known fairly rapidly" as the school year starts—increasing the number of FMLA requests.
Written by Allen D Smith, JD, Manager, Workplace Law Content at SHRM
Published www.shrm.org, August 9, 2019