Schools face unique issues when coordinating leaves of absence for teaching staff. Although teachers are entitled to take up to 12 consecutive weeks of leave under the Family and Medical Leave Act (FMLA) for covered reasons, honoring their right to take such leave can be challenging for school administrators who are trying to minimize disruption to the classroom.
Fortunately, the Department of Labor's regulations implementing the FMLA contain specific rules applicable to schools—including independent schools—that provide school administrators with more flexibility for coordinating teachers' requests for covered leave to minimize the burden that FMLA leave imposes on schools.
The FMLA's Special School Rules apply only to instructional employees whose principal function is to teach students in a class, small group, or individual setting. Instructional employees include teachers, coaches, driving instructors, sign language interpreters, and other special education assistants. Instructional employees do not include other school employees, such as counselors, psychologists, cafeteria workers, maintenance workers, bus drivers, teaching assistants, and others who do not provide student instruction as their principal job duty.
Leave Near the End of the Term
The Special School Rules apply to instructional employees requesting leave near the end of an academic term. If a teacher begins FMLA leave more than five weeks before the end of a term, the school may require the teacher to remain on leave until the end of the term if their leave is expected to last at least three weeks and the employee would otherwise return to work during the last three weeks of the term. If the teacher begins FMLA leave during the last five weeks of a term, the school may require them to remain on leave until the end of the term if the leave is expected to last more than two weeks and the employee would otherwise return to work during the last two weeks of the term. If the teacher begins FMLA leave during the last three weeks of the term, the school may require them to continue taking leave until the end of the term if the leave is expected to last more than five working days.
When a teacher is required to remain on leave until the end of an academic term, the Special School Rules require that schools only designate as FMLA leave the period of time during which the teacher is actually unable to work, not the period of time after which they were able to return to work but were asked by the school to remain on leave. In this case the initial period of leave is required by the teacher and therefore should be counted against FMLA entitlements, but the additional leave is required by the school and therefore should not be counted against the teacher.
Similarly, if an employee's FMLA leave begins before the summer vacation and continues into the next school year, 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. When FMLA leave continues beyond the end of the school year, the school must continue to provide the employee with any benefits over the summer vacation that the employee would normally receive if he or she had been working at the end of the school year and was not on leave.
Teachers taking intermittent leave pose significant issues for schools. For teachers taking longer leaves of absence under the FMLA, schools are able to secure a single, long-term substitute teacher who can continue to follow a class's lessons plans during the original teacher's absence. For teachers taking intermittent leave, however, schools must secure multiple short-term substitute teachers to cover a teacher's frequent absences, which causes significant disruption to the class's lesson plans and curriculum. To help address the classroom disruption caused by intermittent leave, the Special School Rules impose certain limits on teaching staff taking intermittent leave. If a teacher needs intermittent leave and the employee would be on leave for more than 20 percent of the total number of working days over the leave period, the school may require them to take a certain period of consecutive days on leave not to exceed the duration of the teacher's planned medical treatment, or transfer temporarily to an available alternative position for which they are qualified, which has equivalent pay and benefits, and which better accommodates recurring periods of leave than does the teacher's regular position.
Other FMLA Requirements Still Apply
In addition to the Special School Rules, schools must still comply with their other obligations under the FMLA when responding to instructional employees' leave requests. For example, schools should ensure that there are proper procedures in place for notifying employees of their eligibility under the FMLA, designating FMLA leave, requesting medical certifications, and returning employees to work following FMLA leave.
Schools are well advised to review their current FMLA policies and procedures to ensure that they are taking advantage of the Special School Rules and complying with their other responsibilities under the FMLA. Independent schools with questions about the FMLA's Special School Rules or other FMLA issues are encouraged to contact any member of Venable's Independent School Law Practice (Caryn Pass, Grace Lee, Janice Gregerson, Ashley Sykes, or Imani Menard) for assistance.