Given the FMLA’s significant financial implications, it should be of keen interest to SBOs and their teams. After highlighting its key provisions, this column offers recommendations for district leaders when working with the FMLA.
FMLA Eligibility
Boards with 50 or more employees for each working day during 20 or more calendar workweeks in the current or preceding calendar years must provide unpaid leave to staff for medical or childcare purposes during set 12-month periods. Employees, including part-timers, must have worked for a minimum of 12 months, covering at least 1,250 hours during the year immediately preceding the start of their leave.
Policies can require teachers either to take leave for periods not to exceed the length of their planned treatments or boards can temporarily transfer them to other jobs with equivalent pay and benefits.
FMLA Rights
Subject to greater protections available under state laws or collective bargaining contracts, employees are entitled to 12 weeks of unpaid leave during 12-month periods identified in board FMLA policies. If policies permit paid leave for fewer than 12 weeks, the remainder of leave may be without pay.
Employees who accrue paid vacation, personal, or family leave time may, or boards may require them to, substitute these days for unpaid leave; policies can forbid such substitutions. In creating one-year timeframes, boards may use calendar years or 12-month periods measured forward or backward from the first FMLA leave date.
Educators can request leaves under two broad categories: childcare covers the birth, adoption, or foster care assumption of children within 12 months of the event; “serious health conditions” refers to illness of spouses, children, parents, or those employees who are rendering care and unable to work.
Individuals requesting leave must give 30 days notice or as much as is practicable. Employees seeking leave for foreseeable treatments for serious medical conditions must make reasonable efforts to schedule them so as not to cause undue disruptions to school operations. Policies can waive these requirements.
Because boards may request proof from healthcare providers before granting leaves, employees must include the dates when their condition began, the likely duration of leave, and explanations of their inability to perform job functions. To care for family members, certifications must include estimates of how long leave is necessary. If officials doubt the validity of certifications, they may require employees, at their own expense, to obtain second opinions. Should the two views conflict, boards may, at their expense, have employees submit to the opinion of a third health care provider mutually acceptable to both parties; this third evaluation is binding.
Special Rules
Under special rules for individuals working primarily in instructional capacities, teachers who request intermittent or reduced schedule leaves for foreseeable medical care, expecting to be absent for more than 20% of the total working days during time off, have two options. Policies can require teachers either to take leave for periods not to exceed the length of their planned treatments or boards can temporarily transfer them to other jobs with equivalent pay and benefits.
Three special rules apply to leave taken near the end of school terms. First, if teachers wish to begin leave more than five weeks before the end of terms, boards may require them to wait until the end of semesters if they will be out at least three weeks and they would return during the three weeks before terms end.
Second, if teachers request leave less than five weeks before terms end, policies may direct them to wait until the end of the semester if their leave exceeds two weeks and they would return during the final two weeks of the term.
Third, if requested leave is less than three weeks before the end of the semester and greater than five working days, boards may require teachers to take leave lasting until the end of the term.
Employees returning from leave must be restored to their same or equivalent jobs with comparable pay and benefits. Returning employees lack entitlements to extra seniority, benefits, other rights, or positions they would not have been entitled to but for taking leave. Employees must be able to demonstrate their fitness to return to work when their leaves expire.
Other Protections
Along with protecting employees from being fired for requesting leave, boards must make and preserve records demonstrating their compliance. The federal Department of Labor can conduct annual reviews of board FMLA records and may examine them more frequently if necessary to investigate alleged violations. If officials violate the FMLA, boards may have to reinstate or promote employees and can be liable for up to twelve weeks of wages and benefits, plus reasonable attorney fees.
Recommendations
When working with their FMLA policies, SBOs and their teams may wish to keep the following points in mind because of the potentially significant financial ramifications.
- Maintain clearly written, up-to-date policies that align with the FMLA, state laws, regulations, litigation, and bargaining contracts.
- Include the SBO, administrators and teachers from the building and district levels, a staff member, a union representative, a board member, and the board attorney on the policy writing team.
Policies should:
- Be mindful of privacy laws such as the Health Insurance Portability and Accountability Act, or HIPAA, and state laws on what, if anything, officials may disclose to local health departments and other agencies or the public about employees’ medical conditions.
- Consider creating sick leave banks, which would allow employees to voluntarily donate days to help colleagues who need more time off but cannot afford to take unpaid leave. Recipients should be required to provide diagnoses signed by licensed physicians or healthcare practitioners, plus proof that they exhausted their own paid leave and demonstrated significant financial needs. Unused days should be credited back to donors.
- Mandate annual professional development for all employees who administer the FMLA to keep them up to date.
- Offer regular information sessions for employees about board leave policies.
- Consider creating a dedicated email address to put employees in contact with those responsible for monitoring board FMLA policies.
- Post policies in locations such as teacher-staff lounges, in faculty-staff handbooks, in employee contracts, and on district websites.
- Require SBOs and their teams to review their FMLA policies annually to ensure compliance with federal and state laws, regulations, and litigation, as well as bargaining contracts.