Including Guest Author Tracey Truesdale

One of the things we love the most about Franczek P.C. is the synergy that exists between our practice areas. A recent letter from the U.S. Department of Labor (DOL) is one example in which the worlds of special education law and labor and employment law—our two main practice areas at Franczek—collided. We called on our Partner Tracey Truesdale, who has vast experience in this area of labor and employment law, to help us understand this law and its potential impacts on IEP teams.

The Wage and Hour Division of the DOL issued the letter in response to a request from a concerned parent. The parent sought an opinion on whether the Family Medical Leave Act (FMLA) would provide job protection to an employee who takes time off to attend individualized education program (IEP) meetings for their children. The DOL determined that parents may take intermittent leave under the FMLA to attend IEP meetings for children who have “serious health conditions.”

Background and DOL Analysis

The opinion letter was issued in response to an individual who has two children with “serious health conditions” as defined by the FMLA. The parents received certification from the children’s doctors supporting the need to take intermittent leave to care for the children. The employer approved intermittent leave to bring the children to medical appointments but did not approve leave to attend periodic IEP meetings.

Under the FMLA, an employee may use FMLA leave intermittently when medically necessary because of a family member’s “serious health condition,” which is defined as an illness, injury, impairment or physical or mental condition that involves inpatient care or continuing treatment by a healthcare provider. The DOL found that the parent’s attendance at the children’s IEP meetings qualified as “caring for a family member” under the statute. The DOL equated the situation here with case law holding that an employee may take leave to help make medical decisions on behalf of a family member or to make arrangements to find suitable childcare for a child with a medically diagnosed disability.

What does this mean for IEP teams?

For parents of children with “serious health conditions,” this development may make it easier for them to attend IEP meetings (as well as domain meetings, eligibility meetings, and any other meeting held pursuant to the IDEA). For the family requesting the opinion, the school was holding four meetings per year for each of two students – which is quite a bit of time away from work for a parent.

Note that to qualify for FMLA leave, the parent must work for a covered employer (private employer with 50 or more employees or public employer), have worked for the employer for at least 12 months and at least 1,250 hours of service in the last year and the child must have a “serious health condition.” While some students with IEPs have a “serious health condition” under the FMLA, an IDEA disability and a serious health condition are not synonymous. Accordingly, intermittent FMLA leave will not be available to all parents of students with IEPs.

Additionally, in Illinois, parents may be able to use leave under the School Visitation Rights Act, which provides employees of employers with at least 50 employees to take up to eight hours of paid leave during the school year to attend school conferences and classroom activities, but no more than 4 hours on a given day.

As you know, parent participation in IEP meetings is critical. And sometimes scheduling IEP meetings can be difficult. Letting parents know that they may be eligible for FMLA or ISVRA leave may make it a bit easier for parents to get time off work to attend IEP meetings.