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I. ELIGIBLE EMPLOYEES

A. To be eligible for FMLA leave, the employee must meet the following criteria:

1. Must have been employed for at least 12 months (needn’t be consecutive and may include 52 weeks of partial or whole employment -- 29 CFR §825.110[a][1] and [b]).

2. Must have been employed for at least 1,250 hours of service during the 12 calendar months immediately preceding the commencement of the leave (29 CFR §825.110[a][2]). 

3. Qualification for leave is measured twelve (12) months backward from the leave commencement date (29 CFR §825.200[b][4]).

4. Executive, administrative and professional employees (including teachers) under the FLSA will be presumed to have worked at least 1,250 hours during the previous 12 months (29 CFR §825.110[c]), since records of their hours are not maintained (29 CFR §825.500[d]).

5. Teacher assistants and aides are treated along with non-instructional employees for the purposes of counting hours of employment except for those whose principal function is actual teaching or instruction (29 CFR § 825.800).

II. LEAVE ENTITLEMENTS

A. A total of 12 work weeks of leave during any 12 month period for one or more of the following purposes:

1. Child care for birth of an employee’s son or daughter.

2. Adoption or foster care of a child by an employee within one year of birth or placement.

3. Care for a spouse, child or parent with a serious health condition.

4. An employee’s own serious health condition which renders him/her unable to perform work functions [disability within

the meaning of the Americans with Disabilities Act, 42 USC §12101 et. seq.; 29 CFR Part 30] (FMLA §102[a]; 29 CFR §825.112).

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1 Effective March 27, 2015, eligible employees in legal same-sex marriages will be able to take FMLA leave to care for their spouse or family member, regardless of where they live. This will ensure that the FMLA will give spouses in same-sex marriages the same ability as all spouses to fully exercise their FMLA rights.

5. An employee whose spouse, son, daughter or parent is on covered active duty status or who is called to active duty service (e.g. to arrange for child care, address financial and legal matters, attend counseling, etc.).

6. Military Caregiver Leave – Up to 26 weeks of leave may be taken in a single 12 month period to care for a covered service-member with a serious injury or illness.

III. DEFINITIONS

1. Employer -  The Yorktown Central School District 

2. Spouse - A husband or wife, as defined under State Law (29 CFR §825.113[a])

3. Parent - The biological parent of the employee or his/her legal guardian; and not an in-law (29 CFR §825.113[6])

4. Son or Daughter - A biological, adopted or foster child, a stepchild, a legal ward, or a child of a person standing in loco

parentis of a child under 18, or over 18 and in need of assistance with or supervision over daily living skills due to mental or physical disabilities

     (29 CFR §825.113[c][1]-[3])

5.  Serious Health Condition

(A) For purposes of FMLA, “serious health condition” entitling an employee to FMLA leave means an illness, injury, impairment, or physical or mental condition that involves: 

(1)  Inpatient care (i.e., an overnight stay) in a hospital, hospice, or residential medical care facility, including any period of

incapacity (for purposes of this section, defined to mean inability to work, attend school or perform other regular daily activities due to the serious health condition, treatment therefor, or recovery therefrom), or any subsequent treatment in connection with such inpatient care; or

(2) Continuing treatment by a health care provider. A serious health condition involving continuing treatment by a health care provider includes any one or more of the following:

(i) A period of incapacity (i.e., inability to work, attend school or perform other regular daily activities due to the serious health

    condition, treatment therefore, or recovery therefrom) of more than three consecutive calendar days, and any subsequent treatment

    or period of incapacity relating to the same condition, that also involves:

(3) Treatment two or more times by a health care provider, by a nurse or physician's assistant under direct supervision of a health care provider, or by a provider of health care services (e.g., physical therapist) under orders of, or on referral by, a health care provider; or

(4) Treatment by a health care provider on at least one occasion which results in a regimen of continuing treatment under the supervision of the health care provider.

(ii) Any period of incapacity due to pregnancy, or for prenatal care.

(iii) Any period of incapacity or treatment for such incapacity due to a chronic serious health condition. A chronic

   serious health condition is one which:

(5) Requires periodic visits for treatment by a health care provider, or by a nurse or physician's assistant under direct supervision of a health care provider;

(6) Continues over an extended period of time (including recurring episodes of a single underlying condition); and

(7) May cause episodic rather than a continuing period of incapacity (e.g., asthma, diabetes, epilepsy, etc.).

    (iv) A period of incapacity which is permanent or long-term due to a condition for which treatment may not be effective. The employee or     family member must be under the continuing supervision of, but need not be receiving active treatment by, a health care provider.                Examples include Alzheimer's, a severe stroke, or the terminal stages of a disease.

                           (v) Any period of absence to receive multiple treatments (including any period of recovery therefrom) by a health care provider or by a   provider of health care services under orders of, or on referral by, a health care provider, either for restorative surgery after an accident   or other injury, or for a condition that would likely result in a period of incapacity of more than three consecutive calendar days in the   absence of medical intervention or treatment, such as cancer (chemotherapy, radiation, etc.), severe arthritis (physical therapy), kidney   disease (dialysis).

(B)  Treatment for purposes of paragraph (a) of this section includes (but is not limited to) examinations to determine if a serious health condition exists and evaluations of the condition. Treatment does not include routine physical examinations, eye examinations, or dental examinations. Under paragraph (a)(2)(i)(B), a regimen of continuing treatment includes, for example, a course of prescription medication (e.g., an antibiotic) or therapy requiring special equipment to resolve or alleviate the health condition (e.g., oxygen). A regimen of continuing treatment that includes the taking of over-the-counter medications such as aspirin, antihistamines, or salves; or bed-rest, drinking fluids, exercise, and other similar activities that can be initiated without a visit to a health care provider, is not, by itself, sufficient to constitute a regimen of continuing treatment for purposes of FMLA leave.

(C) Conditions for which cosmetic treatments are administered (such as most treatments for acne or plastic surgery) are not "serious health conditions" unless inpatient hospital care is required or unless complications develop. Ordinarily, unless complications arise, the common cold, the flu, ear aches, upset stomach, minor ulcers, headaches other than migraine, routine dental or orthodontia problems, periodontal disease, etc., are examples of conditions that do not meet the definition of a serious health condition and do not qualify for FMLA leave.  Restorative dental or plastic surgery after an

injury or removal of cancerous growths is a serious health condition provided all the other conditions of this regulation are met. Mental illness resulting from stress or allergies may be serious health conditions, but only if all the conditions of this section are met.

(D) Substance abuse may be a serious health condition if the conditions of this section are met. However, FMLA leave may only be taken for treatment for substance abuse by a health care provider or by a provider of health care services on referral by a health care provider. On the other hand, absence because of the employee's use of the substance, rather than for treatment, does not qualify for FMLA leave.

(E) Absences attributable to incapacity under paragraphs (a)(2) (ii) or (iii) qualify for FMLA leave even though the employee or the immediate family member does not receive treatment from a health care provider during the absence, and even if the absence does not last more than three days. For example, an employee with asthma may be unable to report for work due to the onset of an asthma attack or because the employee's health care provider has advised the employee to stay home when the pollen count exceeds a certain level. An employee who is pregnant may be unable to report to work because of severe morning sickness. (29 CFR §825.114).

6.  Health Care Provider - Health care provider means:

A doctor of medicine or osteopathy who is authorized to practice medicine or surgery by the State in which the doctor practices; or

1. Podiatrists, dentists, clinical psychologists, optometrists, and chiropractors (limited to treatment consisting of manual manipulation of the spine to correct a subluxation as demonstrated by X-ray to exist) authorized to practice in the State and performing within the scope of their practice as defined under State law; and

2. Nurse practitioners, nurse-midwives and clinical social workers who are authorized to practice under State law and who are performing within the scope of their practice as defined under State law; and

3. Christian Science practitioners listed with the First Church of Christ, Scientist in Boston, Massachusetts

4. Any health care provider from whom an employer or a group health plan's benefits manager will accept certification of the existence of a serious health condition to substantiate a claim for benefits

5. A health care provider as defined above who practices in a country other than the United States, who is licensed to practice in accordance with the laws and regulations of that country. (29 CFR §825.800)

6. Voluntary or cosmetic treatments are not serious health concerns unless they involve in-patient hospital care or complications develop. (29 CFR Sec.825.114[c])

7. The common cold, the flu, ear aches, upset stomach, minor ulcers, headaches other than migraine, routine dental or orthodontic problems, periodontal disease, etc. are examples of conditions that do NOT meet the definition of a serious health condition. Routine medical examinations are also not included for FMLA leave purposes.  (29 CFR Sec.825.114[b],[c])

IV. THE APPLICABLE 12 MONTH PERIOD

While the employee is entitled to a total of 12 work weeks of leave during a 12 month period, the employer has chosen in determining the 12 month measure, the following:

12 months backward from the employee’s first FMLA leave date

V. NATURE OF LEAVES

1. Child Care

a. leave rights apply equally to fathers and mothers in the case of child care leaves (29 CFR §825.112[b]).

b. child care leave may begin before the birth for prenatal reasons (29 CFR §825.112[c]).

c. child care leave may begin before actual placement of a child in foster care or adoption of a child (e.g., time for counseling sessions, court appearance, attorney-client and physician meetings or examinations) (see 29 CFR §825.112[d]).

d. there is no age maximum on the adoption of a child or a child received into foster care placement (Id.).

e. the time within which a child care adoption or foster care leave must be taken is 12 months from the birth, adoption or placement of the child (FMLA §102[a][2] - 29 CFR §825.201).

f. if spouses work for the same employer, only a combined 12 weeks may be taken within the 12 month period for the purposes of child care for birth, adoption or foster care (29 CFR §825.202[a]).

g. intermittent leave for the purposes of child care, foster care and adoption is subject to the employer’s permission and is not a right granted by law (29 CFR §825.203[a]).

h. if the leave is foreseeable, at least 30 days prior verbal or written notice of the timing and expected duration of the leave is required by the employer.  The employee does not have to specifically ask for FMLA leave, but must provide a FMLA qualifying reason for the leave.  Where unforeseeable, notice must be given as soon as possible and practical (within one or two working days of the need for leave becoming known to the employee) (see 29 CFR §825.302 and §825.303) or else the employer may deny the leave until there is 30 days actual notice (see 29 CFR §825.304[b]).

2. Serious Health Condition Leaves

a.     This leave refers to serious health conditions as described at II(B)(4), Supra, at page 2. 

b.      in addition to the availability of up to 12 consecutive weeks of leave, intermittent leave is available, as is reduced schedule leave,

   when the same is medically necessary (FMLA §102[b][1]). 

c.         medical necessity refers to the health care provider’s certification that the medical need “can be best accommodated” through an     intermittent or reduced leave schedule (29 CFR §825.306).

d.   spouses working for the same employer are entitled to a combined 12 weeks of leave to care for a parent (but not an in-law) (29                CFR §825.202[a] [3]).

e.   intermittent leave is leave that is taken in separate blocks of time, rather than continuously, broke down to units upon the same    basis as the breakdown employed for sick leave use (e.g., for medical appointments, chemotherapy, radiation, physical therapy    for severe arthritis and dialysis) (see 29 CFR §825.201[b]).  If FMLA leave is taken for a period ending with the school year and     beginning the following semester, it will be deemed to be consecutive, rather than intermittent leave. 

f.   reduced leave schedule refers to a diminished number of hours in the workday (e.g., from 8 to 6 hours, due to limited health     capacity -- see 29 CFR §825.203[c]).

g.   the increment of time for intermittent leave may be as brief as the minimum interval of time used in the employer’s payroll   system to account for absences (e.g., one hour or less) (29 CFR §825.203[d]).

h.   where the need for intermittent or reduced schedule leave is foreseeable, at least 30 days prior written               notice shall be   given by the employee to the employer.  (FMLA §102[e][1] and [2]; 29 CFR §825.302-303).

i.   the employee must attempt to schedule treatments so as to minimally disrupt work routines, consistent,                 however, with              the medical necessity standard (FMLA §102[e][2][a]); (29 CFR 825.117).

j.   the medical certification should be presented, upon the employer’s request, at the time of leave, but                        must be                          presented within 15 calendar days of the employer’s request, where practicable (29 CFR          §825.305[a] and [b]).

k.   an employee requesting intermittent or reduced schedule leave due to a planned medical treatment may         be required to   transfer temporarily to an available alternative position:

1. for which the employee is qualified;

2. with equivalent pay and benefits;

3. which better accommodates the treatment schedule (see FMLA §102[b][2]; 29 CFR §825.204[a]).

l. an employee able to return to work full-time must be restored to the same or equivalent position held at the time intermittent or      reduced schedule leave commenced.

VI. PAID AND UNPAID LEAVE

A. The employer shall exercise reasonableness in giving notice of the designation of leave time as FMLA leave.  In doing so, the employer may be permitted to retroactively designate leave as FMLA leave time.  If the employee is unfairly prejudiced or harmed as a result of a retroactive designation, the employer shall re-evaluate the designation and determine the appropriate remedy.  Such decision, if protested, shall be immediately subject to review by the Board’s Personnel Committee.

B. If the employee is receiving workers’ compensation or disability benefits, the employer shall not run FMLA leave concurrently, unless the employee consents in writing.

C.   Where an employer provides a greater period of unpaid leave than FMLA, the designation by the employer determines the FMLA leave.  An employee  may not elect when the FMLA leave begins and ends. (29 CFR § 825.700[a])  The employer acknowledges that it will honor leave time in collectively negotiated agreements and policies that exceed the statutory minimum required by the FMLA.  However, when such contract or policy based leave does exceed the minimum of FMLA leave time, then, the FMLA leave time may be run concurrently with the time set forth in contract and policy.

Unpaid leave under FMLA has a neutral effect upon exempt status under FLSA (FMLA § 102[c]).

D.  Instructional employees 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.

VII. CERTIFICATION OF MEDICAL LEAVES

A. This employer requires timely certification of a medical leave application pursuant to these standards:

1. date when serious health condition commenced;

2. its probable duration;

3. relevant medical facts within the health care provider’s knowledge which the employer should need to know;

4. in the case of caring for another by the eligible employee, a statement of the need for the employee to provide care, including a time requirements estimate;

[NOTE: “Care” includes physical and psychological, and may be provided intermittently, where several family members share in the care duties (29 CFR §825.116)]

5. where the medical leave is the employee’s own, a statement from a health care provider that s/he is unable to perform the functions of the position;

6. in the case of intermittent leave for planned medical treatment, the dates on which the treatment is scheduled to be given and its duration (see FMLA §103[a] and [b]).

B. Discipline may be meted out for failure to timely furnish medical certifications (within 15 calendar days of the employer’s request) only if notice of consequences is given at the time of the request for leave (29 CFR §825.305[d]) and due process is given, where applicable.

VIII. SECOND OPINIONS AND CONFLICTING OPINIONS REGARDING CERTIFICATION

A. When the employer has reason to doubt the validity of a medical opinion regarding a medical leave, the employer may require at its expense that the employee obtain a second health care provider’s opinion by one designated or approved by the employer.  Such designee may not be employed by the employer. (FMLA §103[d][1]; 29 CFR §825.307[a] and [b])

B. A third health care provider resolves conflicts between the first and second opinions via a final and binding decision with the third health care provider being jointly selected.  If mutual agreement is unreasonably withheld by a party, the medical opinion of the other party shall be deemed operative.  The employer shall pay for the costs of travel expenses to any examination conducted by its health care provider(s) as well as to any third health care provider when conflicting medical reports have been issued. (FMLA §103[d][2]; 29 CFR 825.307[c] and [e]).

C. Subsequent recertifications may be required by an employer on a reasonable basis (FMLA §103[e]; 29 CFR §825.308).

IX. RESTORATION TO POSITION UPON RETURN TO REGULAR WORK SCHEDULE

A. Upon return from a covered leave, the employee must be restored by the employer to the position from which leave was granted; or

B. Restored to a position which is virtually identical to the position previously held in terms of pay, benefits and working conditions, including privileges, perquisites and status (FMLA §104[a][1]; 29 CFR §825.214 and §825.215).    If, for example, the employee went on leave from the night shift, s/he must be restored to the night shift (29 CFR §825.216[a]).  Unless contrary to law and/or regulations, restoration to a position shall be made in a manner consistent with policy and provisions contained in collectively negotiated agreements.

C. Restoration may be avoided if it can be shown that the employee would have been laid-off anyway.

D. The employer may require an employee to periodically report on intent to return status (29 CFR §825.309[a]).

E.    If an employee gives the employer an unequivocal notice of intent not to return to work, the employer’s obligations to maintain health benefits (except pursuant to COBRA requirements) and restore to position cease.  However, these obligations continue if an employee indicates he or she may be unable to return to work but expresses a continuing desire to do so (29 CFR §825.309[b]).

F. The employer has adopted a fitness for duty certification policy, which uniformly applies to employees returning from medical leaves of the same nature (29 CFR §825.310[a]).

G. Fitness for duty review must be limited to the condition(s) for which the FMLA leave was granted (29 CFR §825.310[b]).

H. The terms in a collectively negotiated agreement, if any, shall supersede the return to work (fitness for duty) requirements of FMLA, so long as they do not run afoul of the Americans with Disabilities Act (Id.).

I.   This employer may deny restoration from leave until the employee furnishes a required fitness for duty certification, but only if the notice requirements of §825.310[c] have been met. (The §825.301 “notice of rights” to FMLA leave applicants, including fitness for duty requirements upon return to work and a specific individualized notice of certification requirement, must be given at or immediately after leave commencement unless the employer could not foresee the need for such notice when the leave commenced (such as when leave begun as paid vacation, but due to intervening unforeseen accident, became a leave for a serious health condition) -- see 29 CFR §825.310[e]).

J. Fraudulent actions by employees are not protected under FMLA (see 29 CFR §825.212[g]).

X. HEALTH BENEFITS DURING LEAVE

A. The employer shall maintain group health plan coverage for employees on FMLA leaves as if they were actively engaged at work for the duration of the leave (FMLA §104[c]; 29 CFR §825.209 and §825.800).

B. The Employer does not maintain group health insurance benefits for employees who are laid off during the course of FMLA leave and employment is terminated, unless pursuant to a collectively negotiated agreement and/or as otherwise required under COBRA.

C. Instructional employees 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.  (See I[A][5], at pg. 1, supra).

D. Group health care coverage shall extend beyond health insurance, alone, to any other health related benefits provided such as dental care, vision care, mental health counseling (e.g., EAP) and substance abuse treatment (29 CFR §825.209[b]).

E. Improvements in benefits accrete to an employee on FMLA leave, as if s/he was actively engaged at work (29 CFR §825.209[c]).

F. Window periods for plan or coverage changes must be made on notice to those on FMLA leaves, giving them an opportunity to participate (29 CFR §825.209[d]).

G. While on FMLA leave, an employee may opt-out from coverage, but must be allowed to re-enter the plan(s) unconditionally upon return to work (e.g., without waiting period or physical examination -- 29 CFR §825.209[e]).

H. Employees on an FMLA leave become immediately ineligible for employer health premium funding as soon as the employer is informed of an intent not to return from leave (29 CFR §825.209[f]).

I. Where employee premium contributions exist, those on FMLA leaves shall be required to remit their shares to the employer or the carrier, without any additional charges. (29 CFR §825.210[c])

J. If the employee on FMLA leave is more than 30 days late in paying his/her share of the premium, the employer’s obligation to pay its share ceases.  Prior to dropping coverage, the employer must provide written notice at least 15 days before coverage is to cease, advising the employee of the date (at least 15 days later) when coverage will cease. (29 CFR §825.212[a])

K. If coverage lapses during a FMLA leave due to the employee’s failure to make premium share payments, the coverage must be unconditionally restored upon return to work. (29 CFR §825.212[c])

L. The employer shall recover from the employee who was on FMLA leave the employee’s premium share, if the employer made a voluntary payment to avoid a lapse in coverage. (29 CFR §825.212[b])

M. The employer shall recover its premium payments from an employee who fails to return from FMLA leave, unless:

1. the serious health condition persists beyond the time of leave;

2.  there are circumstances beyond the employee’s control occur (e.g., spouse is transferred to a job location more than 75 miles away; the

employee is needed for the health care of an immediate family member; the employee is laid-off while on leave; the employee is a key employee

who was given notice not to return at the end of the leave; but not to extend child care leave).

N. The employer shall recoup premiums from an employee through payroll deductions. (29 CFR §825.213[e])

O. Return to work means resumption of duties for at least 30 days. (29 CFR §825.213[b])

XI. ANTI-DISCRIMINATION AND ENFORCEMENT PROVISIONS

A. The employer is prohibited from interfering with or denying an employee the opportunity to exercise rights provided under FMLA. (FMLA §105[a]; 29 CFR §220[a])

B. Protected activities include: filing a charge, instituting a proceeding, furnishing information and testifying. (FMLA §105[b]; 29 CFR §825.220[a])

C. Discouraging an employee from using FMLA leave constitutes a violation. (29 CFR §825.220[b])

D. Individual rights are not delegable to the collective negotiations process. (29 CFR §825.220[d])

E. The U.S. Secretary of Labor is empowered with investigative authority under the FMLA. (FMLA §106[a])

F. Records must be preserved by employers pursuant to standards set forth in the FLSA at §11(c) (29 USC §211[c]) and are subject to annual submission for inspection, unless reasonable cause warrants more frequent inspection. (FMLA §106[b] and [c])

G. Employees may file complaints administratively with the Wage and Hour Division, Employment Standards Administration of the U.S. Department of Labor. (29 CFR §825.400-401)

XII. POSTING AND NOTICE REQUIREMENTS

This employer shall post and maintain conspicuously in places where employees are employed a notice explaining the Act and providing the procedures for filing complaints of violations with the Wage and Hour Division (29 CFR §300[a]).

XIII. EMPLOYER RECORDKEEPING REQUIREMENTS

A. In the form required by §11(c) of the FLSA, the following FMLA relevant information must be retained for at least three (3) years:

• Basic payroll data;

• FMLA leave dates (all employees) and so designated as such in records;

• Days and hours (where applicable) of FMLA taken by employees;

• Copies of employee notices of FMLA leave given to the employer; copies of employer notices (both general and specific) given to employees.  Copies may be maintained in employee personnel file;

• Documents which describe employee benefits, policies and practice regarding the taking of paid and unpaid leaves;

• Premium payments of employee benefits;

• Written records of disputes about FMLA leave conferral issues (29 CFR §500[a] and [b]).

B. For employees not subject to FLSA recordkeeping requirements (e.g., exempt), the employer need not keep records of actual hours worked if:

1. Eligibility for FMLA leave is presumed;

2. Intermittent or reduced leave schedule hours are agreed upon between employer and employee (e.g., the parties agree what the regular or

average hours of work are) (29 CFR §825.500[d]).

C. Medical certification and recertification documents shall be maintained in separate files/records and treated confidentially, except when supervisors need to be informed of necessary restrictions on work or duties and necessary accommodations, or be informed of an employee’s physical or medical condition that might require emergency treatment, and/or safety personnel have a need to know. (29 CFR §825.500[g][1] and [2])

D. Government officials investigating compliance with FMLA must be provided with relevant information upon request. (29 CFR §825.500[e][3])

XIV. SPECIAL RULES FOR SCHOOL TEACHING PERSONNEL

A. Whenever primarily instructional employees will miss more than 20% of the working days during the intended FMLA leave for planned treatment of serious health condition (personal or family member), the employer may require the employee:

1. To take leave for periods of a particular duration, but not in excess of the leave period;

2. To transfer temporarily to an alternative position for which the employee is qualified which:

a. has equivalent pay and benefits;

b. better accommodates recurring periods of leave than the regular employment position (FMLA §108[c][1]; 29

CFR §825.601).

B. To be eligible for the 20% leave described in paragraph “A”, above, the employee must make a reasonable effort to schedule treatments in a manner which will not unduly disrupt the employer’s operation and, if practicable, give at least 30 days prior notice. (FMLA §102[e][2] and §108[c][2])

C. For leaves near the conclusion of an academic term (semester), the following rules may be applied by the employer in the case of primarily instructional employees:

1. If the leave commences at least five (5) weeks before the end of an academic term and the leave is of at least three (3) weeks duration, leave may be required until the end of the term if the return date would otherwise be within the last three (3) weeks of the term. (FMLA §108[d][1])

2. If a FMLA leave, other than for an employee’s own medical condition, begins within the last five (5) weeks before the end of an academic term, the employer may require the leave to extend through the end of the term if it is for more than two (2) weeks duration and the return date would be within the last two (2) weeks of the term. (FMLA §108[d][2]; 29 CFR §825.602)

3. If a FMLA leave, other than for an employee’s own medical condition, begins less than three (3) weeks before the end of an academic term and would last for more than five (5) working days, the employer may require the leave to extend to the end of the term. (FMLA §108[d][3])

(Note: There are two [2] academic terms [semesters] each school year.)

D. Periods of one or more weeks when school is closed and employees are not expected to report to work do not count toward FMLA leave.  Examples include school closings during the Christmas/New Year holidays, summer vacation, or closings for maintenance and repairs.  

However, when a particular holiday falls during a week taken as FMLA leave, the entire week is counted as FMLA leave.  When a particular holiday falls during a week taken as FMLA week, said day(s) shall extend the period of FMLA leave accordingly.

E. Restoration to an equivalent position upon return from leave regarding all school employees is to be governed by school board policy and practices or collectively negotiated provisions. (FMLA §108[e]; 29 CFR §825.600[d])

F. “Instructional employees” are defined as those whose principal function is to teach and instruct students in class, a small group or individual settings, coaches, special education assistants such as signers for the hearing impaired.  It does not include counselors, psychologists, curriculum specialists, non-instructional personnel and teaching assistants or aides, unless their principal job is actually teaching or instructing. (29 CFR §825.600[c])

G. If FMLA leave is extended at the employer’s option, the extension is considered to be FMLA leave time as well, including health benefits and restoration rights. (29 CFR §825.603[b])

Adoption date: September 21, 2009

Reviewed date: March 19, 2018