6541

Adoption Date: 1/18/1994, Revised: 7/19/1994; 6/20/00; 12/1/09; 06/15/10; 10/01/2013; 2/28/17
6000 - PERSONNEL

5-COMPENSATION AND RELATED BENEFITS
6541 FAMILY AND MEDICAL LEAVE ACT

The Board of Education, in accordance with the Family and Medical Leave Act of 1993 (as amended) (FMLA), gives "eligible" employees of the District the right to take unpaid leave for a period of up to twelve (12) workweeks in a twelve-month period as determined by the District. The District has determined that the period will be a rolling twelve month period measured backward from the date an employee uses any FMLA leave.

Employees are "eligible" if they have been employed by the District for at least twelve (12) months and for at least 1,250 hours of service during the previous rolling twelve-month period. 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. The law covers both full-time and part-time employees.

Qualified employees may be granted leave for one (1) or more of the following reasons:

  1. a) The birth of a child and care for the child (until the child reaches the age of 1 year)
  2. b) Adoption of a child and care for the child (within 12 months of placement)
  3. c) The placement of a child with the employee from foster care (within 12 months of placement);
  4. d) To care for a spouse, minor child or parent who has a "serious health condition" as defined by the FMLA;
  5. e) A "serious health condition" of the employee, as defined by the FMLA, that prevents the employee from performing his/her job.

A “serious health condition” is an illness, injury, impairment, or physical or mental condition that involves either an overnight stay in a medical care facility, or continuing treatment by a health care provider for a condition that either prevents the employee from performing the functions of the employee’s job, or prevents the qualified family member from participating in school or other daily activities. Subject to certain conditions, the continuing treatment requirement may be met by a period of incapacity of more than 3 consecutive calendar days combined with at least two visits to a health care provider or one visit and a regimen of continuing treatment, or incapacity due to pregnancy, or incapacity due to a chronic condition. Other conditions may meet the definition of continuing treatment.

Military Caregiver Leave

A total of 26 workweeks of leave during a single 12-month period may be taken by an eligible employee to care for:

1) a covered service member who: (a) is the employee’s spouse, son, daughter, parent, or next of kin; and (b) is a member of the Armed forces (including a member of the National Guard or reserves) who is undergoing medical treatment, recuperation, or therapy, or is otherwise in

outpatient status, or is otherwise on the temporary disability retired list, for a serious injury or illness; or

2) a covered veteran who: (a) is the employee’s spouse, son, daughter, parent, or next of kin, (b) was released under conditions other than dishonorable; (c) is undergoing medical treatment, recuperation, or therapy, for a serious injury or illness; and (d) was a member of the Armed Forces (including a member of the National Guard or reserves) at any time during the period of 5 years preceding the first date on which the eligible employee takes FMLA leave to care for the covered veteran.

This leave entitlement shall be applied on a per-covered servicemember, per-injury basis. Note: the FMLA definitions of “serious injury or illness” for current servicemembers and veterans are distinct from the FMLA definition of “serious health condition.”

The single 12-month period for servicemember caretaker leave shall begin on the first day the eligible employee takes leave to care for a covered servicemember and end 12 months after that date. If an eligible employee does not take all of his/her 26 workweeks of leave entitlement to care for the covered servicemember, during the single 12-month period, the remaining part of his/her 26 workweeks of leave entitlement to care for the covered servicemember is forfeited.

An employee’s combined leave total for all FMLA leave taken during any single 12-month period shall not exceed 26 weeks.

"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 the Regular Armed Forces or 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.

There is no "qualifying exigency" unless the military member is or is about to be deployed to a foreign country.

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:

  1. a) Short-notice deployment;
  2. b) Military events and related activities;
  3. c) Childcare and school activities;
  4. d) Parental care leave;
  5. e) Financial and legal arrangements;
  6. f) Counseling;
  7. g) Rest and recuperation (for up to fifteen [15] calendar days);
  8. h) Post-deployment activities; and
  9. i) Any additional activities where the employer and employee agree to the leave.

In any case in which the 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 twelve (12) month period. Leave may be taken intermittently or on a reduced leave schedule.

Implementation/Benefits/Medical Certification

Employees are required to use paid leave concurrently with periods of FMLA 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/her share during the leave period.

In most instances, an employee has a right to return to the same position or an equivalent position with equivalent pay, benefits and working conditions at the conclusion of the leave.

The Board of Education has a right to thirty (30) days advance notice from 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 employee's 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 by 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:

  1. a) Take leave for a period or periods of a particular duration, not greater than the duration of the planned treatment; or
  2. 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 periods of leave than does the employee's 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, requirements and/or training may not be required of the employee as a contingent of their return to work.

Leave Taken by Instructional 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 lasts 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 lasts 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.

FMLA Notice

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.

Administration is directed to develop regulations to implement this policy, informing employees of their rights and responsibilities under the FMLA.

Policy References: Family and Medical Leave Act of 1993 (as amended), Public Law 103-3 National Defense Authorization Act of 2008, Public Law 110-181 10 USC 101(a) (13) 29 USC 1630.1 and 2611-2654 29 CFR Part 825 and Part 1630

42 USC 12102 Health Insurance Portability and Accountability Act of 1996 (HIPAA), Public Law 104-191 45 CFR Parts 160 and 164

Policy References:
Family and Medical Leave Act of 1993 (as amended), Public Law 103-3
National Defense Authorization Act of 2008, Public Law 110-181
10 USC 101(a) (13)
29 USC 1630.1 and 2611-2654
29 CFR Part 825 and Part 1630
42 USC 12102
Health Insurance Portability and Accountability Act of 1996 (HIPAA), Public Law 104-191
45 CFR Parts 160 and 164


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