FMLA LEAVE MAY BE AVAILABLE TO PARENTS TO ATTEND IEP MEETINGS
On August 8, 2019, the U.S. Department of Labor, Wage and Hour Division (“the DOL”) issued guidance on whether an employee may take protected leave under the Family and Medical Leave Act (“FMLA”) to attend a meeting to discuss the Individualized Education Program (“IEP”) of the employee’s son or daughter. U.S. Dept. of Labor, WHD, FMLA 2019-2-A(August 8, 2019).
1. FMLA Leave
As a starting point, FMLA provides that an employee eligible for FMLA may take up to 12 weeks of job-protected, unpaid FMLA leave per year “to care for the spouse, son,daughter, or parent, of the employee, if such spouse, son, daughter, or parent has a serious health condition.” 29 U.S.C. §2612(a)(1)(C); see also 29 U.S.C. §2611(11); 29 C.F.R. §825.112–.115.
2. IDEA and Related Services
Alternatively, the Individuals with Disabilities Education Act (“IDEA”) requires public schools to develop an IEP for astudent who receives special education and related services, with input from the child, the child’s parents, teachers, school administrators, and related services personnel. Under IDEA, “related services” may include such services as audiology services, counseling services, medical services, physical therapy, psychological services, speech-language pathology services, rehabilitation counseling services, among others.
3. DOL Conclusion
Considering both statutes, the DOL instructed that attendance at IEP meetings does qualify FMLA-covered leave so long as the employee’s son or daughter suffers from a “serious health condition” as defined in the law. FMLA defines a “serious health condition” as an illness, injury, impairment, or physical or mental condition that involves inpatient care or continuing treatment by a healthcare provider. Many students receive “continuing treatment” by a healthcare provider pursuant to their IEP.
4. FMLA Medical Certification
An employer may require the parent to provide a medical certification in order to verify the existence of the child’s serious health condition. This certification is a standard FMLA form issued by a health care provider, further supporting the request for leave. This certification would verify that the child’s condition qualifies as a “serious health condition” under FMLA.
5. Parents Input is “Essential”
In issuing the guidance, the DOL recognized that the parents in question attend IEP meetings in order to “help make medical decisions concerning their children’s medically-prescribed speech, physical, and occupational therapy, to discuss their children’s wellbeing and progress with the providers of such services, and to ensure that their children’s schoolenvironment was suitable to their medical, social, and academic needs.” The DOL also instructed that, a parents’ attendance at IEP meetings is often “essential to [the parent’s] ability toprovide appropriate physical or psychological care” to theirchildren, further justifying the application of FMLA protected leave for IEP meetings.
6. Intermittent Leave
Under FMLA, an employee may use the leave intermittently or on a reduced leave schedule when medically necessary because of a family member’s serious health condition. 29 U.S.C. §2612(b)(1); 29 C.F.R. § 825.202. This means that the employee may apply the FMLA leave as-needed, for portions of a workday, rather than in a scheduled days or in continuous days. Intermittent leave is the type of leave most parents would need to request and use for IEP meetings.
Finally, the DOL instructed that the child’s doctor does not need to be present at IEP meetings in order for the leave to qualify under FMLA. The conclusion provided by the DOL alsoapplies to any special education meetings held pursuant to IDEA.
This article was authored by education and employment attorney, Mark A. Weiker.
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