6551 Family and Medical Leave Act
SUBJECT: FAMILY AND MEDICAL LEAVE ACT
The Board of Education, in accordance with the Family and Medical Leave Act of 1993 (as amended) (FMLA), gives "eligible" employees of the District the right to take unpaid leave for a period of up to twelve (12) workweeks in a twelve-month period as determined by the District.
The School District must compute the time frame of the twelve (12) month period for which FMLA leave is being requested. The following four (4) choices are available:
a) A "rolling" twelve (12) month period measured backward from the date of any FMLA leave usage.
The District uses (a) as its method for calculating the leave year period for the commencement of the FMLA leave period. In certain cases, FMLA leave may be taken on an intermittent basis rather than all at once, or the employee may work a part-time schedule.
Employees are "eligible" if they have been employed by the District for at least twelve (12) months and for at least 1,250 hours of service during the previous twelve-month period. Full-time teachers are deemed to meet the 1,250 hour test. However, a break in employment for military service (i.e., call to active duty) should not interrupt the twelve (12) month/1,250 hours of employment requirement and should be counted toward fulfilling this prerequisite. The law covers both full-time and part-time employees.
Qualified employees may be granted leave for one (1) or more of the following reasons:
- The birth of a child and care for the infant;
- Adoption of a child and care for the infant;
- The placement with the employee of a child in foster care;
- To care for a spouse, child or parent who has a "serious health condition" as defined by the FMLA; and/or
- A "serious health condition" of the employee, as defined by the FMLA, that prevents the employee from performing his/her job. A "serious health condition" is defined as an illness, injury, impairment or physical or mental condition that involves inpatient care or continuing treatment by a health care provider that renders the employee incapacitated for more than three (3) consecutive calendar days and where the employee is required to see the health care provider at least twice. A "serious health condition" is also defined as any period of incapacity related to pregnancy or for prenatal care.
Military Family Leave Entitlements
Military Caregiver Leave
An eligible employee who is the spouse, son, daughter, parent, or next of kin (defined as the nearest blood relative) of a "covered service member" who is recovering from a service-connected serious illness or injury sustained while on active duty or a veteran who has a qualifying injury or illness from service within the last five (5) years and aggravates that illness or injury, is entitled to up to 26 weeks of leave in a single 12-month period to care for the service member. This military caregiver leave is available during a single 12-month period during which an eligible employee is entitled to a combined total of 26 weeks of all types of FMLA leave. Military Caregiver Leave may be combined with other forms of FMLA-related leave providing a combined total of twenty-six (26) weeks of possible leave for any single twelve (12) month period; however, the other form of FMLA leave when combined can not exceed twelve (12) of the twenty-six (26) weeks of combined leave.
Military Caregiver Leave has a set "clock" for calculating the twelve (12) month period for when FMLA leave begins and tolling starts at the first day of leave taken.
The term "covered service member" means:
- A member of the Armed Forces (including a member of the National Guard or Reserves) who is undergoing medical treatment, recuperation, or therapy, is otherwise in outpatient status, or is otherwise on the temporary disability retired list, for a serious injury or illness; or
- A veteran who is undergoing medical treatment, recuperation, or therapy, for a serious injury or illness and who was a member of the Armed Forces (including a member of the National Guard or Reserves) at any time during the period of five (5) years preceding the date on which the veteran undergoes that medical treatment, recuperation or therapy.
"Qualifying Exigency" Leave/Call to Active Duty
An "eligible" employee is entitled to FMLA leave because of "a qualifying exigency" arising out of circumstances where the spouse, son, daughter, or parent of the employee is serving in the regular
Armed Forces who is deployed to a foreign country or either the National Guard or the Reserves and is on active duty during a war or national emergency called for by the President of the United States or Congress, or has been notified of an impending call to active duty status, in support of a contingency operation.
A "qualifying exigency" related to families of the Army National Guard of the United States, Army Reserve, Navy Reserve, Marine Corps Reserve, Air National Guard of the United States, Air Force Reserve and Coast Guard Reserve personnel on (or called to) active duty to take FMLA protected leave to manage their affairs is defined as any one of the following reasons:
- Short-notice deployment;
- Military events and related activities;
- Childcare and school activities;
- Financial and legal arrangements;
- Rest and recuperation;
- Post-deployment activities; and
- Any additional activities where the employer and employee agree to the leave.
In any case in which the necessity for leave due to a qualifying exigency is foreseeable, the employee shall provide such notice to the employer as is reasonable and practicable. This military-related leave is for up to twelve (12) weeks during a single 12-month period. Leave may be taken intermittently or on a reduced leave schedule.
Medical Treatment for Serious Health Conditions
The first visit to a health care provider for an employee claiming a "serious health condition" under FMLA must occur within seven (7) days of the aforementioned incapacity with the second required visit occurring within thirty (30) of the incapacitating event.
If the employee claiming FMLA under the "serious health condition" rationale is sustaining continuous treatment, their first visit to a health care provider must take place within seven (7) days of the claimed incapacitating event.
Chronic "serious health conditions" require periodic visits; the employee must see a health care provider a minimum of two (2) times per year.
At the Board of Education's or employee's option, certain types of paid leave may be substituted for unpaid leave.
An employee on FMLA leave is also entitled to have health benefits maintained while on leave. If an employee was paying all or part of the premium payments prior to leave, the employee will continue to pay his/her share during the leave period.
In most instances, an employee has a right to return to the same position or an equivalent position with equivalent pay, benefits and working conditions at the conclusion of the leave.
The Board of Education has a right to thirty (30) days advance notice from the employee where practicable. In addition, the Board may require an employee to submit certification from a health care provider to substantiate that the leave is due to the "serious health condition" of the employee or the employee's immediate family member. Under no circumstance should the employee's direct supervisor contact any health care provider regarding the employee's condition; all contact in this manner must be made by a health care provider (employed at the employer), a human resource professional, a leave administrator or a management official. If the medical certification requested by the employer is found to be deficient, the employer must indicate where the errors are, in writing, and give the employee seven (7) days to provide corrected materials to cure any deficiency prior to any action being taken.
Special Provisions for School District Employees
An instructional employee is an employee whose principal function is to teach and instruct students in a class, a small group, or an individual setting (e.g., teachers, coaches, driving instructors, special education assistants, etc.). Teaching assistants and aides who do not have instruction as the principal function of their job are not considered an "instructional employee."
Intermittent Leave Taken By Instructional Employees
FMLA leave that is taken at the end of the school year and resumes at the beginning of the next school year is not regarded as intermittent leave but rather continuous leave. The period in the interim (i.e., summer vacation) is not counted against an employee and the employee must continue to receive any benefits that are customarily given over the summer break.
Intermittent leave may be taken but must meet certain criteria. If the instructional employee requesting intermittent leave will be on that leave for more than twenty percent (20%) of the number of working days during the period for which the leave would extend, the following criteria may be required by the employer:
- Take leave for a period or periods of a particular duration, not greater than the duration of the planned treatment; or
- Transfer temporarily to an available alternative position for which the employee is qualified, which has equivalent pay and benefits and which better accommodates recurring periods of leave than does the employee's regular position.
Appropriate notice for foreseeable FMLA leave still applies and all employees must be returned to an equivalent position within the school district. Additional work-related certifications, requirements and/or training may not be required of the employee as a contingent of their return to work.
Leave Taken by Instructional Employees Near the End of the Instructional Year
There are also special requirements for instructional employees taking leave and the leave's relation to the end of the term. If the instructional employee is taking leave more than five (5) weeks prior to the end of the term, the District may require that the employee take the leave until the end of the term if the leave lasts more than three (3) weeks and the employee was scheduled to return prior to three (3) weeks before the end of the term.
If the instructional employee is taking leave less than five (5) weeks prior to the end of the term for any of the following FMLA-related reasons except qualifying exigency, the District may require that the employee remain out for the rest of the term if the leave lasts more than two (2) weeks and the employee would return to work during that two (2) week period at the end of the instructional term.
If the instructional employee begins taking leave during the three (3) weeks prior to the end of the term for any reason except qualifying exigency, the District may require that the employee continue leave until the end of the term if the leave is scheduled to last more than five (5) working days.
Any additional time that is required by the employer due to the timing of the end of the school year, will not be charged against the employee as FMLA leave because it was the employer who requested that the leave extend until the end of the term.
A notice which explains the FMLA's provisions and provides information concerning the procedures for filing complaints of violations of the FMLA shall be posted in each school building and a notice of an employee's FMLA rights and responsibilities shall be either placed in the employee handbook of the employer or furnished to each new employee upon hire. The employer has five (5) days to supply such notice from the date of hire.
Administration is directed to develop regulations to implement this policy, informing employees of their rights and responsibilities under the FMLA.
Family and Medical Leave Act of 1993 (as amended), Public Law 103-3 National Defense Authorization Act of 2008, Public Law 110-181
10 United States Code (USC) 101(a) (13)
29 Code of Federal Regulations (CFR) Part 825
Health Insurance Portability and Accountability Act of 1996 (HIPAA), Public Law 104-191 45 Code of Federal Regulations (CFR) Parts 160 and 164
NOTE: Refer also to Policy #6552 - Uniformed Services Employment and Reemployment Rights
Act USERRA)/Military Leaves of Absence
Adoption Date: 6/09/08 Revised and Adopted: 8/9/10