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DOL Issues Opinion Letter: Parents May Take FMLA Leave to Attend Child’s Individualized Education Program Meeting

Published by and on September 24, 2019

U.S. Department of Labor says employees may take protected FMLA leave to attend Individualized Education Program meetings for child with a serious health condition.

On August 8, 2019, The U.S. Department of Labor (“DOL”) issued an opinion letter in response to a private inquiry made by a parent regarding the use of leave under the Family and Medical Leave Act (“FMLA”) to attend meetings to discuss a child’s Individualized Education Program (“IEP”). In its opinion letter, the DOL concluded that an employee’s need to attend IEP meetings addressing the educational and medical special needs of the employee’s child, who has a serious health condition as certified by a health care provider, is a qualifying reason for taking intermittent FMLA leave.

The FMLA requires that covered employers (with 50 or more employees) provide eligible employees up to 12 weeks of unpaid, job-protected leave per year to care for the employee’s spouse, child, parent, or the employee’s own serious health condition. Under the FMLA, a “serious health condition” includes both physical and psychological conditions that involve inpatient care or continuing treatment by a health care provider. Intermittent FMLA leave (or periodic leave) is permitted when medically necessary because of the employee’s or family member’s serious health condition. As with continuous FMLA leave, employers may require an employee to timely provide notice of intermittent FMLA leave and provide certification from a health care provider supporting the employee’s need to request such leave.

In its opinion letter, the DOL reasoned that attendance of a parent employee at a child’s IEP meetings is care for a family member with a serious health condition. The DOL noted that under the FMLA, “to care for” a family member with a serious health condition includes making arrangements for changes in such care. This includes taking leave to make arrangements to find suitable childcare for a child with a disability, even if that care does not involve treatment provided by a medical facility.

The DOL further stated that its conclusion is consistent with prior DOL Wage and Hour Division policy entitling eligible employees to take FMLA leave to attend care related conferences necessary for an employee to provide appropriate physical or psychological care for a parent or family member. The DOL reasoned that attending IEP meetings was essential to the employee’s ability to provide care to the employee’s child regarding decisions concerning the child’s serious health condition and to ensure that the child’s school environment is suitable to the child’s medical, social, and academic needs.

Welter Insight

The DOL’s opinion letter should put employers on notice of possible obligations under the FMLA. Employers with leave policies that do not provide FMLA leave for employees to attend school or education related meetings to address the specialized care and education needs for children with serious medical conditions risk running afoul of the FMLA.

In addition to the DOL’s recent opinion letter, employers should be aware that some states already require employers to provide employee leave to attend a child’s school-related conference. For example, California, Illinois, Louisiana, New Jersey, Massachusetts, Minnesota, Nevada, North Carolina, Vermont, and the District of Columbia provide leave for parent employees to attend school related conferences. Employers in those states should ensure that they are compliant under both state laws and the FMLA.

Additionally, employers should be wary of how they treat employees who may need leave for a child with a known disability. Under the Americans with Disability Act (“ADA”), employers are not required to accommodate or provide leave to parents of children with disabilities. Employers, however, may not discriminate against said parent employees where an employer allows for leave, working from home, or a modified schedule for other employees who have personal needs such as child care issues or who are taking classes. In such a case, an employer would need to provide the same type of modifications in scheduling for parents of children with disabilities and not treat them disparately.

Employers should seek counsel if concerned whether their leave policies are in compliance with the FMLA, ADA, state, and local laws.

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