Special Rules Apply to School Employees on Family and Medical Leave
The U.S. Department of Labor (DOL) has issued sweeping revisions to its regulations implementing the Family and Medical Leave Act (FMLA). The FMLA applies to employers with 50 or more employees (including private elementary and secondary schools) and provides that qualified employees may take up to 12 weeks of unpaid leave per year for certain family and health reasons. Despite the many recent changes to the federal regulations, private elementary and secondary schools remain subject to “Special Rules” that give the schools more flexibility than other employers when responding to employee requests for family or medical leave.
Instructional Employees Only
The Special Rules apply only to “instructional employees” whose principal function is to teach and instruct students in a class, small group or individual setting. Instructional employees typically include teachers, coaches, driving instructors, sign language interpreters and other special education assistants. By contrast, instructional employees typically do not include counselors, psychologists, curriculum specialists, cafeteria workers, maintenance workers, bus drivers, teaching assistants and others who do not provide student instruction as their principal job duty.
How the Special Rules apply depends upon the timing and duration of the requested FMLA leave. The DOL recognizes that disruptions of the learning environment harm students and unfairly burden school administrators. Accordingly, the DOL crafted these Special Rules to help minimize the burden that FMLA leave imposes on schools while at the same time protecting the rights of teachers and other instructional employees to take leave.
Leave Near the End of a Semester
Special Rules apply to instructional employees requesting leave near the end of an academic term, a particularly crucial period for teachers and students. If an instructional employee begins FMLA leave more than five weeks before the end of a term, the school may require the employee to remain on leave until the end of the term if the requested leave is expected to last at least three weeks and the employee would otherwise return to work during the last three weeks of the term. If the instructional employee begins FMLA leave during the last five weeks of a term, the school may require the employee to remain on leave until the end of the term if the leave is expected to last more than two weeks and the employee would otherwise return to work during the last two weeks of the term. If the instructional employee begins FMLA leave during the last three weeks of the term, the school may require the employee to continue taking leave until the end of the term if the leave is expected to last more than five working days.
Special Rules also impose certain limitations on instructional employees taking intermittent leave. If an instructional employee needs intermittent or reduced leave and the employee would be on leave for more than 20 percent of the total number of working days over the leave period, the school may require the employee to choose between the following: (a) taking a certain period of consecutive days on leave, not greater than the duration of the employee’s planned medical treatment, or (b) transferring 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. For example, the school could offer these options to an instructional employee who normally works five days each week but needs to take two days of FMLA leave per week over a period of several weeks.
Counting FMLA Leave
There are also Special Rules for keeping track of an instructional employee’s FMLA leave. For example, when an employee is required to remain on leave until the end of an academic term, the school may only designate as FMLA leave the period of time during which the employee is actually unable to work, not the period of time after which he or she was ready and able to return to work but was asked by the school to remain on leave. The initial period of leave was required by the employee and therefore is properly counted against FMLA entitlements, but the additional leave was required by the employer and is therefore not counted against the employee.
Similarly, FMLA leave taken for a period that ends with the school year and begins the next semester is leave taken consecutively rather than intermittently. The period during the summer vacation when the employee would not have been required to report for duty is not counted against the employee’s FMLA leave entitlement. When FMLA leave continues beyond the end of the school year, the school must continue to provide the employee with any benefits over the summer vacation that the employee would normally receive if he or she had been working at the end of the school year and not on leave.
Returning From Leave to an Equivalent Position
Lastly, the Special Rules provide that a school’s “established policies and practices” will determine how an employee should be restored to an “equivalent position” upon return from FMLA leave. The policies must be in writing, must be made known to the employee prior to taking FMLA leave, and must clearly explain the employee’s right to be restored to an equivalent position upon return from leave. Specifically, the policy must provide for restoration to an equivalent position with equivalent employment benefits, pay and other terms and conditions of employment. An employee may not be restored to a position requiring additional licensing or certification.
Private schools are well advised to take advantage of these Special Rules and revise their policies and practices accordingly. The full text of these Special Rules can be found in the Code of Federal Regulations, Title 29, Section 825.600.