September 16, 2019

September 16, 2019

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Can Employees Use FMLA Leave to Attend IEP Meetings at Their Children’s School?

Recently, the United States Department of Labor (DOL) issued an opinion letter addressing whether an employee may take leave under the Family and Medical Leave Act (FMLA) to attend a meeting to discuss the Individualized Education Program (IEP) of the employee’s child. In the situation posed to the DOL, an employee had two children with qualifying serious health conditions under the FMLA, and whose doctor had provided proper certification supporting the need for intermittent care for the children. The employer approved the employee’s intermittent leave under FMLA to bring her children to medical appointments. However, the employer denied the employee’s request to take FMLA leave to attend the children’s IEP meetings. The DOL determined that the employer violated the FMLA.

As background, if a child is found eligible to receive special education and related services under the Individuals with Disabilities Education Act (IDEA), a public school must develop an IEP and meet regularly to revise and edit the plan as necessary. A child’s parents, teachers, school administrators and related services personnel, such as speech pathologists or occupational therapists, attend IEP meetings, depending on the specific child and his/her needs. The team will provide updates regarding the child’s progress, areas of concern, review recommendations and modify the IEP as necessary.

As applied to the present matter, the DOL determined that the employee’s need to attend her children’s IEP meetings “addressing the educational and special medical needs of [her] children – who have serious health conditions as certified by a health care provider – is a qualifying reason for taking intermittent FMLA leave.”  The DOL explained that attendance at  the IEP meetings was essential to her ability to provide appropriate physical or psychological  “care for” her children.  29 C.F.R § 825.112(a)(3).  The regulation’s “to care for” language supports an employee’s need to “make arrangements for changes in care” emphasizing that those changes surrounding school services are discussed at the school during an IEP meeting. The parent is an essential member of their child’s IEP team and participates to discuss medical decisions and progress of the children’s specialized educational services.

The DOL concluded that care may occur solely at a school; it does not need to involve a facility that provides medical treatment for FMLA leave to be available to the parent. Further, the child’s doctor or other health care provider need not be present at the meeting for it to qualify as FMLA leave.

While this opinion letter does indeed provide a more expansive view of intermittent FMLA leave, employers should also be aware of what it does not do:

  • It does not suggest that employees have a broad right to attend any school meeting in connection with their child. It does not, generally speaking, apply to normal parent-teacher conferences or disciplinary meetings with teachers.  Rather, the employee may take FMLA leave to attend a meeting at a school at which the employee is (a) helping participants make medical decisions concerning the child’s medically prescribed therapy; (b) discussing the child’s wellbeing and progress with the providers of such services, and/or (c) ensuring that the child’s school environment is suitable to his or her medical, social, or academic needs.

  • It does not suspend the FMLA’s certification requirements. If the employee has not already submitted certification paperwork establishing that his or her child has a serious health condition, then the employer can and should request it.

  • It also does not suspend the FMLA’s normal notice requirements. An employer can still require that the employee provide advance notice where possible. This should usually not be a problem for IEP meetings, since those are generally scheduled well in advance.

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About this Author

 Abby S. Busler Davis Kulthau Associate Labor Employment School and Higher Education
Associate

 

Abby is a member of the firm’s Labor & Employment team and the School and Higher Education practice group in Green Bay. Her practice primarily focuses on counseling education clients in school law and labor and employment issues.

Prior to joining the firm, Abby attended the University of Wisconsin-Madison and was a student athlete on the Women’s Golf team before heading off to Valparaiso University School of Law on a full scholarship. While at Valparaiso, Abby was a member of the University School of Law Honors program, an associate editor of the Law Review and the...

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Laurie Meyer, Davis Kuelthau, labor and employment lawyer
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As a member of Davis|Kuelthau’s Labor and Employment practice group, Laurie combines her experience in human resources management with over 20 years of employment law practice to provide creative, strategic counsel and defense to employers of every size on a full range of employment issues. This depth of experience allows her to provide legal assistance to employers in ways that minimize risk and avoid litigation and support long-term business goals. Laurie takes a practical approach to solving employment problems for her clients and achieving their goals in a cost-effective way.

Laurie has handled litigation matters involving Title VII, the Americans with Disabilities Act, the Fair Labor Standards Act, the Age Discrimination in Employment Act, the Family and Medical Leave Act, the Occupational Safety and Health Act, the Wisconsin Fair Employment Act, as well as other federal, state, and local laws and ordinances. She has also handled several unreasonable refusal to rehire worker’s compensation claims and unemployment compensation claims.

Laurie regularly advises her clients on how labor and employment-related legislation and regulation may affect their businesses and assists clients in developing compliant handbooks, policies and practices. She also guides her clients in difficult employment matters, from employee performance reviews, terminations, reductions-in-force, wage-and-hour issues, and responding to discrimination and harassment complaints.

Laurie frequently lectures and conducts in-house management and supervisor training for human resource organizations and companies of all sizes in the areas of medical leave management, social media and electronic communication management, and illegal harassment.

Laurie is a member of the Defense Research Institute’s (DRI) Employment and Labor Law Steering Committee, serves as its Publication Chair and chief editor of several of its publications. She is also a member of the State Bar of Wisconsin and the Society of Human Resources Management (SHRM).

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