Stuff happens. In our office, there are countless ways life might come before work. Ashley might act as if FMLA stands for “Friday and Monday Leave Act” and claim migraines necessitating intermittent leave. Is intermittent leave appropriate for her migraines? What if Bobby requests FMLA leave to deal with his stress caused by Jordan’s incessant bullying? How does the FMLA interact with mental health diagnoses? What if the law clerks Amanda and Jessa both generously find out they are eligible bone marrow donors and request to utilize FMLA leave for the retrieval process? (We are really stretching our brains over here creating clever hypotheticals!).
Part 4: It’s Closing Time, Open all the Doors, and Let You Out Into the (FMLA-riddled) World
What better way to end our FMLA series than with a reference to the classic 1990s hit by Semisonic? We are certain you are happy it is “closing time” for this series. As a refresher, Part-1 discussed FMLA basics and the type of family and health events that trigger FMLA eligibility. Part-2 focused on employer notice obligations and special FMLA rules for instructional employees at schools. Part-3 focused on the mechanics of FMLA leave. Today’s latest installment addresses special school rules for instructional employees and lays out some common scenarios a school might encounter.
Special School Rules for Instructional Employees
The FMLA includes a few unique rules for school instructional employees.
What if an instructional employee needs intermittent leave or leave on a reduced leave schedule for the employee’s own serious health condition, to care for a family member with a serious health condition, or to care for a covered servicemember?
The school may require the employee to choose either to:
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.
This section only applies if the leave is foreseeable based on planned medical treatment for a serious health condition 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.
What if an instructional employee does not give required notice of foreseeable FMLA leave to be taken intermittently or on a reduced leave schedule?
The school district may require the employee to: take leave of a particular duration; transfer temporarily to an alternative position; or require the teacher to delay the taking of leave until the notice provision is met.
What if the leave begins more than 5 weeks before the end of a term?
The school district may require the teacher to take leave until the end of the term if leave lasts at least 3 weeks and the teacher will return during the 3-week period before the end of the term.
What if the leave begins less than 5 weeks before the end of a term?
The school district may require the teacher to take leave until the end of the term if leave lasts at least 2 weeks, and the teacher will return during the 2-week period before the end of the term.
Note: This section does not apply if the leave is for the employee’s own serious health condition.
What if the leave begins less than 3 weeks before the end of a term?
The school district may require the teacher to take leave until the end of the term if leave lasts more than 5 working days.
Note: This section does not apply if the leave is for the employee’s own serious health condition.
Pulling it All Together
Scenario 1
Michael, who began employment in August, comes to you in February with news that his brother, a covered service member, was injured while deployed overseas. You ask what happened and learn that Michael’s brother broke his back and will be immobile for a time. Referring to the general notice posted in his employee handbook and on the school’s employee web portal, Michael requests 4 weeks of FMLA leave to care for him. While this is a serious health condition, you unfortunately must inform Michael that he is not a covered employee. Why? He has not worked there for at least 12 months or accumulated 1,250 hours during the 12 hours prior to the start of leave. What next? Issue an eligibility notice to Michael informing him that he is ineligible and include both reasons.
Scenario 2
Jim and Pam have exciting news. They are having a baby. They both work for the school district. Because the district does not offer maternity/paternity leave, they are trying to figure out how to stretch their paid time off to care for the baby. Realizing that birth or adoption triggers the right to FMLA leave, you give Jim and Pam their eligibility notice.
They both request 12 weeks of leave. To complicate matters, they request intermittent leave, which means they each want to work a reduced schedule. Must you grant either of these requests?
No. Because Jim and Pam work for the same employer, they are only entitled to 12 total weeks of bonding time leave, between the two of them (for example, 6 weeks each of FMLA bonding time leave). Furthermore, leave to care for a newborn (or newly placed) child may only be taken intermittently with the employer’s approval and must be taken within 1 year of the child’s birth.
Scenario 3
Meredith is a teacher requesting leave to care for her father who has a serious health condition. Seven weeks ago, Meredith learned that her father needed to undergo a procedure that would require daily follow-up appointments. Today, Meredith requests leave from 9:00am to 10:00am each day beginning next week.
Because Meredith failed to provide 30 days’ notice of foreseeable intermittent leave, she is subject to a special rule for instructional employees. Instead of granting her request, the school may require Meredith to take leave of a particular duration, transfer temporarily to an alternative position, or require her to delay the taking of FMLA leave until the notice provision is met.
Scenario 4
It’s April 18th and a teacher, Toby, has requested 3 weeks of leave after adopting a child. You’re scrambling to figure out the best way to cover his classes during his absence.
There is a special rule for instructional employees near the end of the term. If a teacher requests leave that is to begin less than 5 weeks before the end of the term and last more than 2 weeks, then under some circumstances the school can require that the teacher take leave until the end of the term.
Conclusion
If you have any questions about the FMLA, please feel free to contact Karen, Steve, Bobby, Coady, Jordan, Tyler or Sara at (402) 804-8000, or send everyone an email at ksb@ksbschoollaw.com.