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Special Rules: The Family Medical Leave Act And School Employees

Did you know that there are special rules under the Family Medical Leave Act ("FMLA") pertaining to school employees? These rules provide specific Federal protections for school employees requesting maternity, sickness or ill family member leave. These special rules contemplate special protections for school employees cognizant of the school year calendar.

Under the FMLA an employee can take up to twelve (12) work weeks of leave during any 12-month period for several reasons, including the birth of a child, adoption of a child, sickness and care for a family member who is ill. Recognizing the school year calendar, the FMLA has special rules that apply to employees of "local educational agencies" including public school boards and elementary and secondary schools under their jurisdiction, and private elementary and secondary schools. However, these special rules do not apply to other kinds of educational institutions, such as colleges and universities, trade schools, and preschools. The usual FMLA requirements for employees to be eligible still apply.

The first special rule is a limitation on intermittent leave. Leave taken for a period that ends with the school year and begins the next semester is leave taken consecutively rather than intermittently. This means that the period during summer vacation when the employee would not have been required to report for duty is not counted against the employee's FMLA leave entitlement. For example, if you give birth to a child in July then your twelve-week maternity FMLA leave cannot start until the school year commences in September.

Notably, an instructional employee who is on FMLA leave at the end of the school year must be provided with any benefits over the summer vacation that employees would normally receive if they had been working at the end of the school year. The FMLA defines "instructional employees" as those whose principal function is to teach and instruct students in a class, a small group, or an individual setting. This term includes not only teachers, but also athletic coaches, driving instructors, and special education assistants such as signers for the hearing impaired. Importantly, it does not include, and the special rules do not apply to, teacher assistants or aides who do not have as their principal job actual teaching or instructing, nor does it include auxiliary personnel such as counselors, psychologists, or curriculum specialists. It also does not include cafeteria workers, maintenance workers, or bus drivers.

The second special rule is a limitation on leave near the end of an academic term. There are different rules for instructional employees who begin leave more than five weeks before the end of a term, less than five weeks before the end of a term, and less than three weeks before the end of a term.

If an instructional employee begins leave more than five weeks before the end of a term, the employer school may require the employee to continue taking leave until the end of the term if:

(i) The leave will last at least three weeks, and (ii) The employee would return to work during the three-week period before the end of the term.

For example, if you were a high school teacher and you took a three week FMLA leave for illness during the second semester in April, the employer school could require you to continue to take your leave through to the end of the semester should you seek to return to work during the final three weeks of the semester.

Interestingly, if the instructional employee begins leave during the five-week period before the end of a term because of the birth of a child; the placement of a child for adoption or foster care; to care for a spouse, son, daughter, or parent with a serious health condition; or to care for a covered servicemember, the employer school may require the employee to continue taking leave until the end of the term if:

(i) The leave will last more than two weeks, and (ii) The employee would return to work during the two-week period before the end of the term.

For example, if your spouse had emergency surgery at the end of May and you took a FMLA leave to care for her for two weeks then your employer school may require you to continue to take leave until the end of the academic term.

Importantly, in the case of an employee who is required to take leave until the end of an academic term by an employer school, only the period of leave until the employee is ready and able to return to work shall be charged against the employee's FMLA leave entitlement. Therefore, any additional leave required by the employer to the end of the school term is not counted as FMLA leave and the employer shall be required to maintain the employee's group health insurance and restore the employee to the same or equivalent job including other benefits at the conclusion of the leave.

Contact Attorney Mucci, an experienced employment lawyer, if you are a school employee and have questions about your FMLA rights.

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