And By Guest Author Tracey Truesdale
In what is perhaps an agency first, the Wage and Hour Division of the U.S. Department of Labor (DOL) recently issued a letter in response to a request from a concerned parent. The parent sought an opinion on whether the Family Medical Leave Act (FMLA) would provide job protection to an employee who takes time off to attend individualized education program (IEP) meetings for their children. In a somewhat surprising turn of events given the current political climate, the DOL determined that parents may take intermittent leave under the FMLA to attend these meetings for children who have “serious health conditions.”
Background and DOL Analysis
The opinion letter was issued in response to an individual who has two children with “serious health conditions” as defined by the FMLA. The parents received certification from the children’s doctors supporting the wife’s need to take intermittent leave to care for the children. The employer approved intermittent leave to bring the children to medical appointments, but did not approve leave to attend periodic IEP meetings conducted by a Committee on Special Education (CSE) at the children’s school.
The school district provided the children with occupational, speech and physical therapy prescribed by their pediatrician. The district held CSE/IEP meetings four times a year to review the children’s educational and medical needs, well-being and progress. Various medical professionals participated in these meetings with teachers and school administrators including a speech pathologist, a school psychologist, an occupational therapist and a physical therapist, all of whom were employed or contracted by the school district to provide these services. During the meetings, these individuals provided updates regarding the children’s progress and areas of concern. The participants also reviewed recommendations from the children’s doctors and any new test results before deciding on recommendations for additional therapy.
Under the FMLA, an employee may use FMLA leave intermittently when medically necessary because of a family member’s “serious health condition”, which is defined as an illness, injury, impairment or physical or mental condition that involves inpatient care or continuing treatment by a healthcare provider. Taking as true the parents’ representation that both children had FMLA-qualifying serious health conditions, the DOL found that the parent’s attendance at the children’s CSE/IEP meetings qualified as “caring for a family member” under the statute.
The DOL equated the situation here with case law holding that an employee may take leave to help make medical decisions on behalf of a family member or to make arrangements to find suitable childcare for a child with a medically diagnosed disability. In those instances, the FMLA was deemed to excuse the employee’s absence even though the arrangements for the family member’s care did not involve a facility that provides medical treatment. The DOL likewise found that the children’s doctor did not need to be present at CSE/IEP meetings for those meetings to qualify for intermittent FMLA leave. The agency reasoned that as in other “care” cases, the parent’s attendance at IEP meetings was essential to her ability to provide appropriate care to her children. The intention behind these meetings was to help participants make medical decisions concerning her children’s medically-prescribed speech, physical and occupational therapy; to discuss the children’s well-being and progress with the providers of such services; and to ensure that the children’s school environment was suitable to their medical, social, and academic needs.
The DOL’s approach should not be read as blanket FMLA protection for parent attendance at IEP meetings. As a threshold matter, a child must have a “serious health condition” to implicate the FMLA. Some, but not all, children with IEPs qualify under the FMLA definition, which requires an impairment or physical or mental condition that necessitates continuing treatment from a healthcare provider.
Further, additional analysis is required to determine whether certain meetings will qualify for leave. The language in the letter indicates that coverage applies “to any meetings held pursuant to the Individuals with Disabilities Education Act (IDEA) and any applicable state or local law, regardless of the term used for such meetings.” Accordingly, FMLA leave could be taken for any meeting held pursuant to the IDEA (such as evaluation planning or domain meetings and eligibility meetings), but not for parent-teacher conferences or most disciplinary meetings.
Given this recent guidance, employers can anticipate employee requests to excuse absences for their children’s IEP meetings under the FMLA. Illinois’ School Visitation Rights Act (“ISVRA”), applicable to Illinois employers with 50 or more employees, has historically provided working parents with up to eight hours of paid leave during the school year to attend school conferences and classroom activities. However, under the ISVRA, Illinois employers can cap the use of school visitation leave to four hours on a given day. The DOL’s opinion letter increases the potential for parents to take school-related leave exponentially, up to their full 12-week FMLA entitlement, with no limit on the number of hours that an employee may take on a given work day.
How can employers manage employee requests for FMLA coverage of school meetings? Employers can and should require that the requesting employee provide certification from their child’s health care provider confirming that the child has a serious health condition. Second, employers can request that employees give 30 days’ notice of those care meetings, or as soon as practicable if the need for leave is not foreseeable. (Note that the ISVRA allows employers to require seven days’ advance written notice, except for emergencies, where no more than 24 hours can be required.) Third, Illinois employers who are covered by both the FMLA and ISVRA should confirm that their FMLA policies provide for the concurrent running of FMLA leave with other available paid or unpaid leave to prevent employees from stacking the two types of statutory leave.