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Federal FMLA Regulations for the Family and Medical Leave Act of 1993
What Special Rules Apply to Employees of Schools?
| To whom do the special rules apply? 825.600
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| (a) Certain special rules 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. The special rules do not apply to other kinds of educational
institutions, such as colleges and universities, trade schools, and
preschools.
(b) Educational institutions are covered by FMLA (and these special
rules) and the Act's 50-employee coverage test does not apply. The
usual requirements for employees to be ``eligible' do apply, however,
including employment at a worksite where at least 50 employees are
employed within 75 miles. For example, employees of a rural school
would not be eligible for FMLA leave if the school has fewer than 50
employees and there are no other schools under the jurisdiction of the
same employer (usually, a school board) within 75 miles.
(c) The special rules affect the taking of intermittent leave or
leave on a reduced leave schedule, or leave near the end of an academic
term (semester), by instructional employees. "Instructional
employees" are 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. 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.
(d) Special rules which apply to restoration to an equivalent
position apply to all employees of local educational agencies.
[73 FR 68108, Nov. 17, 2008]
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| What limitations apply to the taking of intermittent leave or leave on a reduced leave schedule? 825.601
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| (a) 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. 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.
(1) If an eligible instructional employee needs intermittent leave
or leave on a reduced leave schedule to care for a family member with a
serious health condition, to care for a covered servicemember, or for
the employee's own serious health condition, which is foreseeable based
on planned medical treatment, 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, the employer may require the employee to
choose either to:
(i) Take leave for a period or periods of a particular duration,
not greater than the duration of the planned treatment; or
(ii) 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.
(2) These rules apply only to a leave involving more than 20
percent of the working days during the period over which the leave
extends. For example, if an instructional employee who normally works
five days each week needs to take two days of FMLA leave per week over
a period of several weeks, the special rules would apply. Employees
taking leave which constitutes 20 percent or less of the working days
during the leave period would not be subject to transfer to an
alternative position. "Periods of a particular duration" means a
block, or blocks, of time beginning no earlier than the first day for
which leave is needed and ending no later than the last day on which
leave is needed, and may include one uninterrupted period of leave.
(b) If an instructional employee does not give required notice of
foreseeable FMLA leave (see Sec. 825.302) to be taken intermittently
or on a reduced leave schedule, the employer may require the employee
to take leave of a particular duration, or to transfer temporarily to
an alternative position. Alternatively, the employer may require the
employee to delay the taking of leave until the notice provision is
met.
[73 FR 68108, Nov. 17, 2008]
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| What limitations apply to the taking of leave near the end of an academic term? 825.602
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| (a) There are also 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. Regular rules apply except in circumstances when:
(1) An instructional employee begins leave more than five weeks
before the end of a term. The employer 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.
(2) The employee begins leave during the five-week period before
the end of a term because of the birth of a son or daughter; the
placement of a son or daughter 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 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.
(3) The employee begins leave during the three-week period before
the end of a term because of the birth of a son or daughter; the
placement of a son or daughter 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 may require the
employee to continue taking leave until the end of the term if the
leave will last more than five working days.
(b) For purposes of these provisions, ``academic term' means the
school semester, which typically ends near the end of the calendar year
and the end of spring each school year. In no case may a school have
more than two academic terms or semesters each year for purposes of
FMLA. An example of leave falling within these provisions would be
where an employee plans two weeks of leave to care for a family member
which will begin three weeks before the end of the term. In that
situation, the employer could require the employee to stay out on leave
until the end of the term.
[73 FR 68108, Nov. 17, 2008]
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| Is all leave taken during ``periods of a particular duration' counted against the FMLA leave entitlement? 825.603
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| (a) If an employee chooses to take leave for "periods of a
particular duration" in the case of intermittent or reduced schedule
leave, the entire period of leave taken will count as FMLA leave.
(b) In the case of an employee who is required to take leave until
the end of an academic term, 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. The employer has the option not
to require the employee to stay on leave until the end of the school
term. Therefore, any additional leave required by the employer to the
end of the school term is not counted as FMLA leave; however, 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.
[73 FR 68109, Nov. 17, 2008]
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| What special rules apply to restoration to ``an equivalent position?' 825.604
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| The determination of how an employee is to be restored to "an
equivalent position" upon return from FMLA leave will be made on the
basis of "established school board policies and practices, private
school policies and practices, and collective bargaining agreements."
The "established policies" and collective bargaining agreements used
as a basis for restoration must be in writing, must be made known to
the employee prior to the taking of FMLA leave, and must clearly
explain the employee's restoration rights upon return from leave. Any
established policy which is used as the basis for restoration of an
employee to "an equivalent position" must provide substantially the
same protections as provided in the Act for reinstated employees. See
Sec. 825.215. In other words, the policy or collective bargaining
agreement must provide for restoration to an "equivalent position"
with equivalent employment benefits, pay, and other terms and
conditions of employment. For example, an employee may not be restored
to a position requiring additional licensure or certification.
[73 FR 68109, Nov. 17, 2008]
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