New DOL Opinion Letter Says Employees Can Use FMLA Leave to Attend Their Children’s IEP Meetings

On August 8, the Department of Labor’s Wage and Hour Division (WHD), which enforces the Family Medical Leave Act (FMLA), issued an opinion letter stating that employers must allow eligible employees to use intermittent FMLA leave to attend their children’s IEP meetings. A copy of that letter is available at this link: http://edcounsel.law/wp-content/uploads/2019/08/2019_08_08_2A_FMLA.pdf

This new Opinion Letter was written in response to a request for clarification from a parent whose employer allowed the parent to attend medical appointments for her children using FMLA leave, but not attend IEP meetings using that leave. The parent’s children both have “serious health conditions” under the FMLA. The WHD determined that attending IEP meetings constituted “caring for” the two children under the FMLA.

Specifically, the WHD determined that “caring for” an employee’s children with serious health conditions includes “to make arrangements for changes in care,” including meetings that address the educational and special medical needs of those children. That care can be provided by a school district and not by a medical treatment facility, and the child’s doctor doesn’t have to attend the IEP meeting in order for the employee to be able to use FMLA leave to attend the meeting.

So what does this mean for your district? Ultimately, this may slightly increase the amount of FMLA leave your employees take, but the number of employees actually eligible to take this leave will likely be small, given that the employee must be eligible to take FMLA leave and have a student with a serious health condition that also has an IEP or 504 plan.

In order for an employee to be eligible to take FMLA leave, the employee must be employed by a covered employer for at least 12 months, have worked at least 1,250 hours for the employer during the 12-month period immediately preceding the leave, and works at a location where the employer has at least 50 employees within 75 miles. Public schools are considered covered employers without regard to the number of employees they employ. Generally, teachers are presumed to have worked 1,250 hours per school year if they work full time during the entire school year.

Once an employee is eligible for FMLA leave, they are entitled to use FMLA leave for their own serious health conditions, or to “care for” their family members who have serious health conditions. The FMLA defines “serious health condition” as an illness, injury, impairment, or physical or mental condition that involves inpatient care or continuing treatment by a healthcare provider. 29 U.S.C. § 2611(11).

Although the specific Opinion Letter addresses only IEP meetings, based on the WHD’s analysis, this would likely also apply to team meetings under Section 504.

If you receive a request from an employee who wants to use FMLA leave to attend their child’s IEP meetings, your district should follow its typical process when an employee requests FMLA leave to care for a family member, such as if a parent requests intermittent leave to take his or her child with autism to a behavioral therapy appointment, or their spouse to a chemotherapy appointment.

Specifically, we recommend the following steps:

  • Review your employee’s FMLA eligibility status;
  • Require the employee to have their child’s physician fill out the required FMLA certification forms to show their child has a “serious health condition” as defined by the law; and
  • Review the certification forms to ensure all requirements are met.

 

If the employee is eligible for FMLA leave and the child has a “serious health condition” as defined by the law, then the employee should be allowed to take intermittent FMLA leave to attend IEP or Section 504 meetings based on that child’s serious health condition.

You may require proof of the employee’s attendance at the IEP or 504 meeting if you would do so for any other FMLA-covered appointment, such as requiring a doctor’s excuse; however, keep in mind that doctors are not required to be present at the IEP or 504 meeting in order for the employee to take this leave, so a signed note from the child’s school district would suffice. (Likewise, your district should be aware that it may need to provide notes to parents upon request so they can provide them to their employers as well.)

If the employee’s child does not have a serious health condition but does have an IEP, then that parent would not be able to take intermittent FMLA leave for that child’s serious health condition. For example, if the child had an IEP because the child was eligible under “specific learning disability,” which is not based on a serious health condition, the child’s parent would not be eligible to take FMLA leave to attend that IEP meeting.

Also, if the child’s serious health condition is not the basis of the child’s IEP or 504 plan, then that employee would likely not be able to take intermittent FMLA leave to attend those meetings, either. This will likely be difficult to determine without additional information from the employee requesting to take leave for the meetings, but we suggest erring on the side of approval with regard to these requests to ensure that employees’ FMLA rights are being met.

While this new Opinion Letter may seem to extend the law in such a way that could be burdensome to school districts, there are potential benefits to consider. Specifically, it’s important to remember is that this Opinion Letter applies to all “covered employers,” not just public agencies. This means that this letter has the potential to benefit the District when scheduling IEP meetings for its students because parents will have broader abilities when it comes to scheduling. If a student’s parent works for a covered employer, it’s possible the parent will be willing to use FMLA leave to attend IEP or Section 504 meetings for their student during our teachers’ regular work hours, instead of having to schedule those meetings around parent work schedules.

If you have questions or would like assistance in responding to an employee’s request to use FMLA leave, please reach out to one of our team members at EdCounsel!