By Jeff Nowak on August 9, 2019
POSTED IN DOL INITIATIVES, OPINION LETTERS
If I gave you a million tries, you’d never guess that the next Department of Labor FMLA opinion letter would answer the question [wait for it . . .]: Is an employee’s attendance at a child’s IEP meeting covered by the FMLA?
The Answer? Yes. Most definitely, yes.
In an opinion letter issued yesterday, the DOL concluded that the FMLA covers an employee’s attendance at a school meeting where their child’s individualized education program (IEP) will be discussed.
Interestingly, the request for an opinion letter came from a set of parents whose two children have serious health conditions. The employer for one of the parents approved intermittent FMLA leave to transport their children to and from medical appointments, but refused a request to take intermittent FMLA leave to attend school meetings.
As background, their children currently receive “pediatrician-prescribed occupational, speech, and physical therapy provided by their school district.” Additionally, on four occasions throughout the school year, their school holds IEP meetings to “review their educational and medical needs, well-being, and progress.” These IEP meetings include participation by a speech pathologist, school psychologist, occupational therapist and/or physical therapist employed or contracted by the school district, all of whom provide services to the child under the child’s IEP. The child’s teachers and school administrators also attend. [In case you’re wondering, an IEP outlines the program of special education instruction, support and services a child with a disability will receive as part of their education program. Each program is designed to meet a child’s exact needs.]
When one of the parents was denied FMLA leave to attend these IEP meetings, the parents together took the law into their own hands — and drafted a request for an opinion letter from the DOL regarding the issue.
Based on these facts, the DOL determined that the employee’s attendance at the IEP meetings constitutes “care for a family member … with a serious health condition.” Here’s the DOL’s rationale:
“Care for a family member includes both physical and psychological care. As noted above, “to care for” a family member with a serious health condition
includes “to make arrangements for changes in care.”
29 C.F.R. § 825.124(b)
In finding that IEP meetings are covered by the FMLA, the DOL leaned heavily on: 1) a 2012 federal court case, Wegelin v. Reading Hosp. & Med. Ctr., and 2) an FMLA opinion letter the agency issued in 1998, to support its conclusion.
- The Wegelin case: The DOL cited a few cases in support of its opinion, but only the Wegelin case seems to me to be somewhat analygous to an IEP situation. Here, the plaintiff was an employee whose child had autism and required around-the-clock care. During the workday, plaintiff placed her child in daycare. Due to factors beyond her control, she was forced to change childcare providers and took time off work to meet with potential daycare providers who would care for her child during the day. The court found that “arrangements for changes in care” (as stated in the FMLA regulations) made clear that her meetings with child care providers were covered:
“Making arrangements for “changes in care” is expressly covered by the regulations. Significantly, the regulations are silent on whether the facility needs to be one that provides medical treatment. The fact that Carolyn’s daycare is not a specialized facility is not dispositive. What is relevant is that Carolyn has a chronic serious health condition resulting in an inability to perform regular daily activities and Wegelin had to make arrangements to find a suitable daycare that could care for her. Bowmansville daycare center was suitable, but no longer available . . . she had to make arrangements for a change in Carolyn’s care, entitling Wegelin to FMLA leave.”
2. 1998 FMLA Opinion Letter: Although short on factual detail, this rather dated 1998 opinion letter (FMLA-94) found that FMLA applied where an employee requested to take time off to attend “Care Conferences” related to her mother’s health condition because her attendance at these conferences was “clearly essential to the employee’s ability to provide appropriate physical or psychological care” to her mother.
Similarly, the DOL was persuaded that the parent attends IEP meetings to help make medical decisions concerning their children’s medically-prescribed speech, physical, and occupational therapy; to discuss their children’s well-being and progress with the providers of such services; and to ensure that the school environment is suitable to their medical, social, and academic needs.
Insights for Employers
This opinion letter requires employers to properly handle IEP meeting requests as leave requests likely covered by the FMLA. Keep in mind the following:
- Employers should treat a request for FMLA leave to attend an IEP meeting consistent with how they handle all other intermittent FMLA leave requests. That said, the employee is required to provide notice for a foreseeable leave of absence and provide appropriate certification to support the leave request. In most instances, this should not be a last-minute leave request.
- At times, it can be tough to determine whether this is an actual IEP meeting, or if it’s just a regular school visit. For instance, disciplinary meetings at the school would not fall under the guidance provided in this opinion letter. As such, employers should closely review the need for attendance specifically at school meetings so that there is some connection to the child’s IEP or issues that implicate the Individuals with Disabilities Education Act (IDEA).
- That said, what 504 Plan meetings? If IEPs are covered, are 504 Plans covered, too? Me thinks the DOL may have simply overlooked this issue. At a minimum, they decided to take a very narrow view of school meetings. Clearly, there are similarities and overlap in IEPs and 504 Plans, as they both provide accommodations in the learning environment for those with disabilities. Take a look at the analysis from my friends Jon Hyman and Suzanne Lucas on this issue.
- Can the employer require proof of appointment for IEP meetings? At a minimum, employers should insist that the medical certification contain specific language supporting the need for the employee to attend IEP meetings for the child. The leave request otherwise should be handled similar to an employee who requires doctor’s appointments. Unless there is objective evidence that the employee is lying about attendance at the IEP meetings, employers should tread carefully in requesting documentation to support attendance at every IEP meeting.
- Train your managers about this new obligation so that these requests are not being outright rejected in the context of FMLA leave. I mean, really. The manager’s knee jerk reaction to this request likely will be that such meetings are not covered by FMLA. They need to understand how this updated guidance affects these particular leave requests.