Hi I'm Stephanie Woodward with Disability Details giving you the details about disability rights, access, and life. Today we're talking about parents using FMLA time to attend IEP meetings for their children.
So before we get too deep into all of this, we're going to be using a few acronyms today and I think it's important to go over them. FMLA is Family and Medical Leave Act. IEP is individualized education program. You may also hear me say PTO which is paid time off. FMLA is a federal law and IEPs go under the IDEA which is the Individuals with Disabilities Education Act.
So now that we know the terms, what's our topic again? Our topic is parents being able to use FMLA time in order to attend meetings to go over their child's IEP. The United States Department of Labor published an opinion on August 8th of 2019 explaining that parents can use their FMLA time in order to attend IEP meetings for their children. This was an important decision. But why does this matter?
This opinion matters to a lot of parents because many individuals get a limited amount of time of paid time off and a lot of people can worry about losing their jobs if they take more than their allotted paid time off during a single year. For parents this worry can be compounded because when you have kids you're using your paid time off not only for yourself and your own sick time and vacation, but also for your kids. When your kids get sick you need to take time off, when they have doctor's appointments, when they have school performances or parent-teacher conferences, so your paid time off is not just yours anymore but is also for your family. For parents who have children with disabilities this can be further compounded because kids with disabilities can sometimes need even more doctor's appointments or specialists or surgeries which could require even more time off and for parents with disabilities who have kids with disabilities it can be even further compounded because parents with disabilities may have their own specialists to see which would mean they need time off of work for that and then their kids have specialists to see so that could result in using all of your time off and more, so needing to have additional time off to go to IEP meetings could be the difference between keeping your job and losing it unless you have protections to allow you to keep your job and have that time off and that's where the FMLA time off comes in.
Using FMLA time to attend IEP meetings can give parents the peace of mind that they can attend the meetings that are important to their children's education while also not losing their job. FMLA allows employees to take unpaid job protected leave for specified family and medical reasons for up to 12 work weeks within a 12-month period.
I want to be clear, while this is really great news for people who are covered under FMLA this is not available for everyone. This is only available for individuals who are considered eligible employees for covered entities under the Family and Medical Leave Act. So let's start with what is a "covered employer"? A covered employer is one of the following:
1. a private sector employer with 50 or more employees for 20 or more consecutive weeks during the current or prior year.
2. a public agency including a local, state, or federal entity regardless of how many employees it has.
3. a public or private elementary or secondary school regardless of how many employees it has.
Now what is an "eligible employee"? An eligible employee must meet the following criteria:
1. you must work for a covered entity.
2. you must have worked for your employer for at least twelve months.
3. you must have at least 1,250 hours of service with that employer within the immediate 12 months prior to requesting the leave.
4. you must work at a location that has at least 50 or more employees within 75 miles.
So if you are an eligible employee that works for a covered entity and you want to take FMLA in order to attend your child's IEP meeting then you must put in that request in advance just like you would put any other time off request the Department of Labor suggests at least 30 days notice where the leave is foreseeable. However, where the leave is not foreseeable then you should put in the request as soon as practicable.
What should employers know about allowing parents to use FMLA time to attend their children's IEP meetings? First you should train your managers and your HR staff about this new opinion from the Department of Labor so that your staff does not inadvertently and wrongly deny these requests from your employees. Employers should treat requests to use FMLA to attend IEP meetings similarly to you how you would treat any other requests for intermittent leave under FMLA. Employers can request documentation to demonstrate that an employee's child does have an IEP in order to support the employees request to take FMLA time to attend IEP meetings, however, employers should not request specific documentation with language demonstrating that parents must attend these IEP meetings because the IDEA specifically lists parents as the first members of an IEP team. That means federal law already lists parents as the very first people that should be members of an IEP team which means if a child has an IEP then it's safe to say that the parent is on that IEP team and needs to be at the IEP meetings.
For employees what should you do if you feel that your rights have been violated? If you feel that your rights have been violated and that you have been wrongfully denied your ability to use FMLA time to attend your child's IEP meetings then you have two courses of action to consider. You could file a complaint with the Secretary of the United States Department of Labor or you could consider filing a private lawsuit. If you choose to file a complaint with the Secretary of Labor you should do so in a timely manner. You can find out how to file that complaint by going on the United States Department of Labor website. Be sure to include all of the pertinent information when you file that complaint such as when you filed your request, who you talk to about your request, what the response was to your request - if any, and any other information that you feel is important. Be sure to include copies of any documentation you may have such as the documentation you submitted with your request, the actual request you submitted, and any email correspondence that you may have. If you want to file a private lawsuit the first step is finding a lawyer that is right for you. When looking for an attorney that would represent you best be sure to bring the same information that you would include in a complaint to the Department of Labor all of that information will help you have a fruitful discussion with potential attorneys to help you determine which attorney would be able to represent you best. For a private lawsuit the statute of limitations is generally two years unless the denial was willful, in which case the statute of limitations could be three years, but I'd play it safe and work on that two year timeline just to be sure I got everything in on time.
I would be remiss if I ended this video without saying it is my firm belief that a child with a disability should always be included in their IEP meeting. While the law does not require a child to be included until a certain age, I believe that children with disabilities should be included in any meeting that discusses them. In the Disability Community our mantra is "nothing about us without us" and if you're discussing our education plans, we can contribute to them. While I did not have an IEP growing up, I did have a 504 plan which is similar to an IEP in some ways and I remember being as young as five or six years old and being involved in those plans and contributing to those meetings by saying what I could and could not do and what I did and did not want. So while I may not have been the most eloquent at expressing myself at such a young age, I did have the right to participate in a plan for myself and it helped me to learn how to advocate for myself from a very young age. I strongly believe that it's not just parents and teachers that should have a say and what happens in a child's education program, the child should have a say as well. After all, it's their education.
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© Stephanie Woodward, 2020. All rights reserved.