6551- Family and Medical Leave Act
|Policy: Family and Medical Leave Act||Policy Number: 6551|
|Date of Original Policy: 07/10/2002||Date Revision Adopted: 11/07/2018|
|Reviewed by Policy Committee: 10/17/2018||Date of Next Review: 12/09/2021|
|Replacement of Policy Number:|
Family Medical Leave Act
The Board of Education, in accordance with the Family and Medical Leave Act of 1993 (FMLA), gives “eligible” employees of the District the right to take unpaid leave for a period of up to 12 work weeks in a 12-month period as determined by the District. The District will compute the 12-month period according to the following time frame: a “rolling” 12-month period will be used that is measured backward form the date of employee uses any FMLA leave.
Employees are “eligible” if they have been employed by the District for at least 12 months and for at least 1,250 hours of service during the previous 12-month period. Full-time teachers are deemed to meet the 1,250 hour test. The law covers both full-time and part-time employees. 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. 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.
Qualified employees may be granted leave for one or more of the following reasons:
a) The birth and care of a child
b) Adoption and care of a child
c) The placement with the employee of a child in foster care
d) To care for a spouse, child or parent who has a serious health condition as defined by the FMLA
e) A serious health condition of the employee, as defined by the FMLA, that prevents the employee from performing his or 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 the individual) of a “covered service member” who is recovering from a serious illness or injury sustained in the line of duty while on active duty is entitled to up to twenty-five (25) weeks of leave in a single twelve (12) month period to care for the service member. This military caregiver leave is available during a single twelve (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 leaved 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 cannot 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.
“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 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:
b) Military events and related activities
c) Childcare and school activities
d) Financial and legal arrangements
f) Rest and recuperation
g) Post-deployment activities
h) Any additional activities where the employer and employee agree to the leave
In any case in which he 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.
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 or her share during the FMLA (12 workweek) leave period. After 12 workweeks of FMLA, the employee may continue participation in the Jordan-Elbridge School district Health plan at his or her own expense.
In most instances, an employee has a right to return to the same position or equivalent position with equivalent pay, benefits and working conditions at the conclusion of the leave.
The Board of Education has a right to 30 days advance notice form 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 employees 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:
b) Transfer temporarily to an available alternative position for which the employee is qualified, which has equivalent pay and benefits and which better accommodates recurring period of leave than does the employees’ 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, requirement or training may not be required of the employee as a contingent of their return to work.
Leave Taken by Instruction 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 last 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 last 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.
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 State Code (USC)101(a)(13) 29
Code of Federal Regulations (CFR) Part 825