Family and Medical Leave Act The law providing eligible employees who work for covered employers the right to job protected, unpaid leave for absences due to birth of a child, adoption, foster care; to care for a family member with a serious health condition or the employee’s own health serious health condition that makes s/he unable to perform the functions of her/his job. This act includes leave rights for employees who provide care for service members with serious injury or illness or who have qualifying exigencies arising from a family member in the military on active duty or who have been notified of an impending call or order to active duty in support of a contingency operation.

Eligibility for FMLA The employee must have been employed for at least 12 months by the employer and for at least 1,250 hours of service with the employer during the 12 months preceding the leave. The employee must work at a site which employs at least 50 people within 75 miles of the worksite. So, FMLA does not apply to a rural school having less than 50 employees and no other schools under the jurisdiction of the same employer (usually, a school board) within 75 miles.

Employer’s Responsibilities Employers covered by the FMLA must maintain any preexisting group health coverage for an eligible employee during the FMLA leave period under the same conditions coverage would have been provided if the employee had not taken leave. The determination of how an employee is to be restored to “an equivalent position” upon return from FMLA leave will be made on the basis of “established school board policies and practices, and collective bargaining agreements.” The established policies and collective bargaining agreements used as a basis for restoration must be in writing, known to the employee prior to the taking of FMLA leave, and must clearly explain the employee’s restoration rights upon return from leave. The policies or collective bargaining agreements must provide for restoration to an “equivalent position” with equivalent employment benefits, pay, and other terms and conditions of employment. For example, an employee may not be restored to a position requiring additional licensure or certification.

Duration of FMLA Leave FMLA entitles the qualified employee to 12 work weeks (work week is 5 days, so for school districts, weekends are not counted ) of unpaid leave in a 12 month period. The employer is permitted to choose the methods for defining this 12-month period in which the 12 work weeks occur, providing the option is applied consistently and uniformly to all employees. Spouses both employed by a district are entitled to a combined total of 12 work weeks for birth/adoption/foster care of a child. Note: If each spouse took 6 weeks of leave to care for a healthy, newborn, each could use an additional 6 weeks due to his/her own serious health condition or to care for the serious health condition of a child. Military Family Leave provisions entitle the eligible employees to take up to 26 weeks of job-protected leave in a 12-month period. The employer is permitted to determine the “single 12-month period” in which the 26 weeks of leave entitlement occurs.

Counting FMLA Leave For Instructional Employees For purposes of determining the amount of FMLA leave used by an employee, the fact that a holiday may occur within the week taken as FMLA leave (such as Thanksgiving) has no effect; the week is counted as a week of FMLA leave. If there is a temporary cease in business activity (such as a 2 week holiday break at Christmas/New Year or summer vacation) the days the employer’s activities have ceased do not count against FMLA leave entitlement.

Definition of instructional school employees Instructional employees are defined as those whose principal function is to teach and instruct students in a class, small group, or individual setting as the rules mainly affect taking of intermittent leave or leave near the end of an academic semester. This definition includes not only teachers but also driving instructors, athletic coaches, and special education assistants such as signers for the hearing impaired. It does not include, and the special rules do not apply to teacher assistants/aides who do not have their principal job as teaching or instructing, counselors, psychologists, or curriculum specialists, cafeteria workers, maintenance workers, or bus drivers.

Special Rules for instructional school employees If an instructional employee needs intermittent leave or leave on a reduced schedule and the employee would be on leave for more than 20 percent of the total number of working days over the period the leave would extend, the employer may require the employee to choose to: Take the leave for a period or periods of a particular duration Transfer to an available alternative position for which the employee is qualified, which has equivalent pay and benefits and better accommodates recurring periods of absence. If an instructional employee does not give 30 days notice of foreseeable FMLA leave, the employer may require the employee to take a leave of particular duration, or to transfer temporarily to an alternative position, or delay the taking of leave until the notice provision is met.

Special Rules for instructional school employees (continued) If an instructional employee begins leave more than 5 weeks before the end of the term, the employer may require the employee to continue leave until the end of the term if The leave will last at least 3 weeks and the employee would return to work during the 3-week period before the end of the term The leave will last more than 2 weeks and the employee would return to work during the 2-week period before the end of the term If an instructional employee begins leave during the 3-week period before the end of a term, the employer may require the employee to continue leave until the end of the term if the leave will last more than 5 working days. NOTE: There are no similar special rules with regard to an instructional employee taking leave at the beginning of the school year or term

Special Rules for instructional school employees (continued) If an employee chooses to take intermittent or reduced leave, the entire period of leave taken will count as FMLA leave. If the employer requires the instructional employee to continue taking leave until the end of the school term, the employer is required to maintain the employee’s group health insurance and restore the employee to the same or equivalent job including other benefits at the conclusion of the leave. NOTE: An instructional employee who is on FMLA leave at the end of the school year must be provided with any benefits over summer vacation that employees would normally receive if they had been working at the end of the school year.