If you have a child with learning or physical disabilities, you're probably familiar with IEPs--Individual Education Plans. The Department of Labor just released an opinion letter that says that IEP meetings are covered under FMLA and that any such meetings are protected time (as long as you otherwise meet the qualifications for FMLA). Managers are required to allow eligible employees time off (unpaid) for IEP meetings.

What do managers and HR need to know?

The most important take away is that when a parent says, "I need time off for an IEP meeting," the answer is, "I hope everything goes well. We'll see you when you get back." That should, of course, be the answer to other school meetings, but now this has the force of FMLA behind the IEP.

  1. 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.
  2. 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).
  3. 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.
  4. 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.

What this means for parents

The children described in this opinion letter had  "pediatrician-prescribed occupational, speech, and physical therapy provided by their school district" and qualified for an IEP, not a 504 plan. The Department of Labor didn't address 504 plans, which are often similar to IEPs. But, 504 plans may be considered covered in the future. This is not the case now, but their similarities mean it is possible.

Both programs require the schools to provide special services for children so that each child can receive an education. The differences between the plans can be summed up as follows, according to Understood:

For an IEP:

  1. A child has one or more of the 13 disabilities listed in IDEA. The law lists specific challenges, like learning disabilities, ADHD, autism, and others.
  2. The disability must affect the child's educational performance and/or ability to learn and benefit from the general education curriculum. The child must need specialized instruction to make progress in school.

For a 504 plan:

  1. A child has any disability. Section 504 covers a wide range of different struggles in school.
  2. The disability must interfere with the child's ability to learn in a general education classroom.

Section 504 has a broader definition of a disability than IDEA. (It says a disability must substantially limit one or more basic life activities. This can include learning, reading, communicating, and thinking.) That's why a child who doesn't qualify for an IEP might still be able to get a 504 plan.

You can see that they are similar, and children who are eligible for a 504 plan may also end up being eligible for parental FMLA protection. The Department of Labor has not stated this, but I suspect parents will ask for guidance on this in the future.

For right now, it's only IEPs and if it is required for all IEPs or just one where parents already have an established intermittent FMLA plan is unclear.

If you need this protection, go to HR today and ask for the paperwork to establish FMLA for IEP meetings.

Regardless of your child's needs, this does not cover all parent-teacher conferences. If the teacher calls you in to discuss a failed test or a playground scuffle, this does not qualify. It's only official IEP meetings.

This is not the most intuitive application of the Family Medical Leave Act, so as Nowak says, train your managers. And let your employees know as well. If you want an engaged, happy employee, help make sure their children are taken care of. It's the right thing to do an keeps you out of court.

Published on: Aug 12, 2019
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