Working Together

Both the federal Family and Medical Leave Act (“FMLA”) and its Connecticut counterpart provide eligible employees with leave to care for a covered family member (such as a child) who has a “serious health condition.”  The federal FMLA defines “care” for a family member to include “both physical and psychological care” and making “arrangements for changes in care.”  The FMLA also permits an employee to use FMLA leave intermittently or on a reduced leave schedule when medically necessary because of a family member’s serious health condition.  Recently, the U.S. Department of Labor’s Wage and Hour Division has opined that parents may use FMLA leave to attend school meetings to discuss the Individualized Education Program (“IEP”) for a child receiving special education and related services.  https://www.dol.gov/whd/opinion/FMLA/2019/2019_08_08_2A_FMLA.pdf.  In Connecticut, such meetings are conducted by a student’s Planning and Placement Team (“PPT”), and logically are called “PPT meetings”.

The U.S. Department of Labor offered its opinion letter in the context of a parent 1) who had provided certification from her children’s doctor supporting her need to take intermittent leave to care for her children, and 2) whose employer had approved FMLA leave to bring her children to medical appointments, but did not approve leave for the parent to attend the IEP meetings.  The opinion letter presumed that the children at issue, who received occupational, speech and physical therapy provided by their school district, had a qualifying “serious health condition” under the FMLA.  While not identifying the state in which this parent resided (and the applicable state special education laws), the opinion letter indicated that the IEP meetings at issue involved review of the children’s educational and medical needs and progress; the meeting participants (which included relevant school district staff) would provide updates as to the children’s progress and area of concern, review recommendations from the children’s doctors and any new testing results, and make recommendations for additional therapy.            

In its opinion letter, the U.S. Department of Labor determined that this parent could use intermittent FMLA leave to attend the IEP meetings.  The letter noted that these children had “serious health conditions” as certified by a health care provider, and that the parent’s attendance at these meetings is “care for a family member with a serious health condition” as covered by the FMLA.  The letter cited to prior court cases finding that the FMLA covered leave to help make medical decisions on behalf of a hospitalized parent and to make arrangements to find suitable childcare for a child with a disability. The letter noted that these court cases indicate that the FMLA “speaks in terms of ‘care,’ not ‘treatment’”, and that an employee may “make arrangements for changes in care,” even if that care does not involve a facility that provides medical treatment.  

The opinion letter also relied upon prior U.S. Department of Labor Wage and Hour Division policy, including a prior opinion letter in which it determined that an employee was 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.  Likewise, the opinion letter noted that this parent’s attendance at IEP meetings is “essential” for her ability “to provide appropriate physical or psychological care” to her children.  The opinion letter noted that the parent at issue attended these IEP meetings to help participants “make medical decisions concerning” the children’s “medically-prescribed speech, physical, and occupational therapy,” to discuss the children’s “well-being and progress with the providers of such services,” and to ensure that the children’s “school environment is suitable to their medical, social, and academic needs.”  

How broad does this opinion letter reach?  While the opinion letter only dealt with the issue of a parent’s attendance at IEP meetings, its logic could be extended to parents to use FMLA leave to attend Section 504 meetings for students who may not be eligible for special education services but are eligible for accommodations under Section 504 of the Rehabilitation Act.  It also could be applied to a school meeting to discuss the care of a child who has a “serious health condition” but is not eligible for special education services or accommodations under Section 504 (for example, a meeting to discuss a health care plan for a student with a “temporary” disability”).   However, it is questionable as to whether the opinion letter would extend FMLA leave to any meeting or appointment at a school to discuss a student’s programming or progress, or to other parent meetings. 

The opinion letter addressed a situation where it was presumed that the student at issue had a “serious health condition” and noted that the IEP meetings at issue would be addressing a child’s “educational and medical” needs.  A child’s eligibility for special education may not automatically qualify as a “serious health condition” under the FMLA.  At the very least, an employer may still require an employee to provide certification from a health care provider supporting the request for leave, and such certification would require the provider to adequately document or support a claim that the child has a “serious health condition.”   Employers can still require employees to comply with the “typical” FMLA requirements, such as medical certification and advance notice requirements, and employees may be required to make reasonable efforts to schedule IEP meetings so as to not unduly disrupt the employer’s operations.  Generally, IEP meetings are scheduled at dates and times mutually agreeable for the school district and the parents; it is often difficult for school districts to schedule annual review IEP meetings during the latter part of a school year.  It is possible that the provision of FMLA leave might make it easier for school districts to schedule these meetings.  The federal FMLA requires at least thirty days’ advance notice where the need for leave is foreseeable; however, as IEP meetings may be scheduled with just five school days’ advance notice, it is more likely than not that the employer will merely receive notice for such leave as soon as practicable.  Finally, while FMLA leave is generally unpaid leave, employers should be mindful of any policies (and collective bargaining agreements) permitting employees to use paid sick leave for the care of a family member and apply them consistently with respect to parents requesting leave to attend IEP meetings