Keenan Briefings


WHD Issues New Guidance: FMLA Protects Employee Leave Time for IEP Meetings

August 23, 2019

On August 8, 2019, the U.S. Department of Labor’s Wage and Hour Division (WHD) published an opinion letter stating that an employee’s request to take leave time to attend an Individualized Education Program (IEP) meeting at her children’s school was protected by the federal Family and Medical Leave Act (FMLA).

The WHD letter explained that the FMLA allows a parent to take time “to care for a family member… with a serious health condition” and that caring for a family member also includes “to make arrangements for changes in care.” The WHD reasoned that the employee’s attendance at IEP meetings is “essential to [her] ability to provide appropriate physical or psychological care” to the children, and that a child’s doctor need not be at the IEP meeting in order for the employee’s leave to qualify as intermittent FMLA leave.Furthermore, the WHD letter states that the same would apply to any meetings held pursuant to the Individuals with Disabilities Education Act (IDEA) and any applicable state or local laws.

In California, that employee’s request for leave would likely also be protected by Labor Code § 230.8, also known as the “Small Necessities Law.” Under this law, an employer who employs 25 or more employees working in the same location must allow an employee who is a parent of one or more children in grades K-12 or with a licensed child care provider to take up to 40 hours of leave per year for the purpose of participating in the activities of the school or child care provider. Prior to taking the time off, the employee must give reasonable notice of the planned absence, and time off under this provision cannot exceed eight hours in any calendar month.The leave may be paid (through the use of vacation, sick or other leave time) or unpaid. Employers can ask for documentation from the school or child care provider as proof that the employee attended a child-related activity at a particular date and time.

The penalty for discharging, demoting, or in any other manner discriminating against an employee who takes a protected leave under this provision can be steep.Employees are entitled to reinstatement and reimbursement for lost wages and benefits caused by the act of the employer. Additionally, an employer may be subject to a civil penalty in an amount equal to three times the amount of the employee’s lost wages and benefits.

Employers should ensure that their leave policies are being applied in compliance with this latest WHD guidance. This is also a good reminder that an employer cannot just look to FMLA when responding to an employee’s request for leave.Leave requests are subject to myriad state laws that impact when and how an employee may take job-protected paid or unpaid leave.When in doubt, check with your Human Resources Department, County Office of Education, or labor counsel.

Please contact your Keenan Account Manager, Claims Analyst or Risk Management Analyst if you would like more information on the regulation described in this Briefing.

Keenan & Associates is not a law firm and no opinion, suggestion, or recommendation of the firm or its employees shall constitute legal advice. Clients are advised to consult with their own attorney for a determination of their legal rights, responsibilities and liabilities, including the interpretation of any statute or regulation, or its application to the clients’ business activities.