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Intermittent FMLA Leave: The Effect on Employee Leave and Parent Attendance at IEP Meetings

This newsflash addresses two impacts that a recent Department of Labor (DOL) letter has on school district adherence to federal guidance. The first is from a human resources perspective relative to an employee’s request to attend his or her child’s Individualized Education Program (IEP) meeting using intermittent FMLA leave.  The second is from a special education perspective in terms of the potential increase in parent-flexibility in scheduling Individualized Education Program (IEP) meetings during the school day, because parents can use intermittent FMLA leave to do so. The DOL issued an August 8, 2019 letter (Letter) in response to a parent’s request for an opinion on whether an employee may take intermittent leave under the Family Medical Leave Act (FMLA) to attend IEP meetings.  The parent had received from her children’s doctor, and provided to their school, certification that her children had serious health conditions, supporting her need to take intermittent FMLA leave to take her children to medical appointments.  Her employer had approved such leave for her to go to her children’s medical appointments but would not approve intermittent FMLA leave for her to attend IEP meetings. The specific question posed by the parent in this Letter was whether her employer erred by not allowing her to use intermittent FMLA leave to attend her children’s IEP meetings.

The FMLA states that, “an employee may use FMLA leave intermittently or on a reduced leave schedule when medically necessary because of a family member’s serious health condition.” See 29 U.S.C. § 2612(b)(1); 29 C.F.R. § 825.202.  The FMLA defines “serious health condition” as an illness, injury, impairment, or physical or mental condition that involves inpatient care or continuing treatment by a healthcare provider and allows an eligible employee of a covered employer to take up to twelve weeks of job-protected, unpaid FMLA leave per year “to care for the spouse, or a 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.

The DOL concluded that the parent’s need to attend the IEP meetings addressing the educational and special medical needs of her children – who had serious health conditions as certified by a health care provider – was a qualifying reason for taking intermittent FMLA leave. The DOL pointed to a 1998 Wage and Hour Division (WHD) letter stating that an employee is entitled to take FMLA leave 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. (WHD Opinion Letter FMLA-94 1998 WL 11475571, at *1 (Feb. 27, 1998)). Drawing a parallel, the DOL concluded that the parent’s attendance at the IEP meetings was “essential to her ability to provide appropriate physical or psychological care.”

Employers, when you receive a request from an employee to attend his or her child’s IEP meeting, (and the parent has provided you with certification from the child’s doctor that the child has a “serious health condition”), know that the employee is permitted to use intermittent FMLA leave to attend not only medical appointments but IEP meetings for that child. This will allow the employee’s child’s school to schedule an IEP meeting during the day, as after-hours IEP meetings that accommodate parents’ schedules outside of work are often difficult for the school to accommodate.  Though the letter did not state such, it is likely that a “serious health condition” would also qualify the parent for intermittent leave to attend a Section 504 meeting.

Special educators, the DOL’s Letter may increase scheduling flexibility such that IEP meetings may no longer have to be scheduled outside of work hours, for those students with “serious health conditions,” to accommodate parents’ schedules.  However, simply because a parent is using intermittent FMLA leave to attend an IEP meeting, the discussion at the IEP meeting itself should remain focused on the educational needs of the child.  Parents receiving certification for intermittent FMLA leave receive such leave due to the child’s medical condition in order to advocate for the educational needs of the child at the IEP meeting.  Though the letter did not state such, it is likely, too, that such a “serious health condition” would qualify the parent for intermittent leave to attend a Section 504 meeting as well, thus allowing for more flexible scheduling of Section 504 meetings when the “specific health conditions” are certified by a child’s medical professional and the parent provides such certification to his or her employer to request intermittent FMLA leave.

If you have any additional questions, please contact Leigh Dalton at ldalton@stockandleader.com or any other solicitor in Stock and Leader’s School Law Group.

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