6334.1 Administrative Procedures and Regulations for 6334


Determining the 12 month previous employment eligibility:

While the 12 months of employment need not be consecutive, employment periods prior to a break in service of seven years or more need not be counted unless the break is occasioned by staff fulfillment of National Guard or Reserve military obligation (as protected under the Uniformed Services Employment and Reemployment Rights Act (USERRA)), or a written agreement, including a collective bargaining agreement, exists concerning the district’s intention to rehire staff after the break in service.

Spouses employed by the same employer:

Spouses employed by the same employer are limited in the amount of family leave they may take for the birth and care of a newborn child, placement of a child for adoption or foster care, or to care for a parent who has a serious health condition to a combined total of 12 weeks (or 26 weeks if leave to care for a covered service member with a serious injury or illness is also used). Leave for birth and care, or placement for adoption or foster care, must conclude within 12 months of the birth or placement.

Serious Health Condition defined:

“Serious health condition” means an illness, injury, impairment, or physical or mental condition that involves either:

  1. Inpatient care (i.e., an overnight stay) in a hospital, hospice, or residential medical-care facility, including any period of incapacity (i.e., inability to work, attend school, or perform other regular daily activities) or subsequent treatment in connection with such inpatient care; or
  2. Continuing treatment by a health care provider, which includes:
  1. A period of incapacity[1] lasting more than three consecutive, full calendar days, and any subsequent treatment or period of incapacity relating to the same condition, that also includes:

1)     treatment[2] two or more times by or under the supervision of a health care provider (i.e., in-person visits, the first within 7 days and both within 30 days of the first day of incapacity); or

2)     one treatment by a health care provider (i.e., an in-person visit within 7 days of the first day of incapacity) with a continuing regimen of treatment (e.g., prescription medication, physical therapy); or

  1. Any period of incapacity related to pregnancy or for prenatal care. A visit to the health care provider is not necessary for each absence; or
  2. Any period of incapacity or treatment for a chronic serious health condition which continues over an extended period of time, requires periodic visits (at least twice a year) to a health care provider, and may involve occasional episodes of incapacity. A visit to a health care provider is not necessary for each absence; or
  3. A period of incapacity that is permanent or long-term due to a condition for which treatment may not be effective. Only supervision by a health care provider is required, rather than active treatment; or
  4. Any absences to receive multiple treatments for restorative surgery or for a condition that would likely result in a period of incapacity of more than three days if not treated.

 

Intermittent Leave for "Instructional Staff”:

Special rules apply if staff employed "mainly in an instructional capacity" requests intermittent leave or leave on a reduced schedule because of their own serious health condition or the serious health condition of a parent, child, or spouse that is foreseeable based on a planned medical treatment and staff would be gone for more than twenty percent (20%) of the working days during the period of leave. In such cases, the district may require staff to do the following things:

  1. Take leave for periods of a particular duration not to exceed the duration of the planned medical treatment.
  2. Transfer temporarily to another position offered by the district for which the staff member is qualified, as long as the new position has equivalent pay and benefits and better accommodates the recurring periods of leave.

 

Instructional staff who take leave constituting less than twenty percent (20%) of the working days during the leave period would not be subject to transfer to an alternative position, or a requirement to be on leave for the duration of the treatment period.

 

Staff will be denied intermittent leave or leave on a reduced leave schedule to care for an immediate family member (spouse, child, parent) with a serious health condition or if the staff member has a serious health condition, if:

  1. Staff, whether requesting leave because of their own serious health condition or because of the serious health condition of a parent, child, or spouse fails to establish, through medical certification, that there is a medical need for such a leave (as distinguished from voluntary treatments and procedures or a continuous treatment schedule).
  2. Staff, whether requesting leave for their own serious health condition or because of the serious health condition of a family member, fails to establish, through medical certification, that it is medically necessary for the leave to be taken intermittently on a reduced leave schedule.

 

Intermittent leave or a reduced leave schedule may not be taken for the birth of a child or for the placement of a child for adoption or foster care.

 

When intermittent leave or leave on a reduced leave schedule is requested based on planned medical treatment, the district also may alter an existing job to better accommodate the staff member’s need for intermittent or reduced leave.  The alternative or altered position must have equivalent pay and benefits.

 

End-Of-Semester Circumstances:

In some circumstances, the district may require instructional staff to continue their leave to the end of the academic semester within the FMLA guidelines.

 

Maintenance of Health Benefits:

The district is required to maintain group health insurance coverage for staff on FMLA leave whenever such insurance was provided before the leave was taken and on the same terms as if the staff member had continued to work. If applicable, arrangements will need to be made for staff to pay their share of health insurance premiums while on leave. In some instances, the district may recover premiums it paid to maintain health coverage for staff who fail to return to work from FMLA leave.

 

Job Restoration:

Upon return from FMLA leave, staff will be restored to their original job, or to an equivalent job with equivalent pay, benefits, and other terms and conditions of employment. Staff use of FMLA leave will not result in the loss of any employment benefit that the staff member earned or was entitled to before using FMLA leave, nor be counted against staff under a “no fault” attendance policy. If a bonus or other payment, however, is based on the achievement of a specified goal such as hours worked or perfect attendance, and the staff member has not met the goal due to FMLA leave, payment may be denied unless it is paid to the staff member on equivalent leave status for a reason that does not qualify as FMLA leave.

 

Staff have no greater right to restoration or to other benefits and conditions of employment than if the staff member had been continuously employed.

 

Notice and Certification:

Staff Notice: Staff seeking to use FMLA leave are required to provide 30-day advance notice of the need to take FMLA leave when the need is foreseeable and such notice is practicable. If leave is foreseeable less than 30 days in advance, staff must provide notice as soon as practicable – generally, either the same or next business day. When the need for leave is not foreseeable, staff must provide notice to the district as soon as practicable under the facts and circumstances of the particular case. Absent unusual circumstances, staff must comply with the district’s usual and customary notice and procedural requirements for requesting leave.

 

Staff must provide sufficient information for the district to reasonably determine whether the FMLA may apply to the leave request. Depending on the situation, such information may include that the staff member is incapacitated due to pregnancy, has been hospitalized overnight, is unable to perform the functions of the job, and/or that the staff member or qualifying family member is under the continuing care of a health care provider.

 

When staff seek leave due to an FMLA-qualifying reason for which the district has previously provided the staff member FMLA-protected leave, staff must specifically reference either the qualifying reason for leave or the need for FMLA leave.

 

Employer Notice: The district will post a notice approved by the Secretary of Labor explaining rights and responsibilities under FMLA. Additionally, the district will either include this general notice in staff handbooks or other written guidance to staff concerning benefits, or must distribute a copy of the notice to new staff upon hiring.

 

When staff request FMLA leave or the district acquires knowledge that leave may be for a FMLA purpose, the district shall notify staff of their eligibility to take leave, and inform staff of their rights and responsibilities under FMLA. When the district has enough information to determine that leave is being taken for an FMLA-qualifying reason, the district must notify the staff member that the leave is designated and will be counted as FMLA leave.

 

Certification: The district may require that request for leave due to a serious health condition affecting the staff member or a covered family member be supported by a certification from a health care provider. The district may require second or third medical opinions (at the district's expense) and periodic recertification of a serious health condition. The district may use a health care provider, a human resource professional, a leave administrator, or a management official – but not the staff member’s direct supervisor – to authenticate or clarify a medical certification of a serious health condition. The district may have a uniformly-applied policy requiring staff returning from leave for their own serious health condition to submit a certification that they are able to resume work. If reasonable safety concerns exist, the district may, under certain circumstances, require such a certification for staff returning from intermittent FMLA leave.



[1]'incapacity', for purposes of FMLA, is 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.

[2]Treatment includes examinations to determine if a serious health condition exists and evaluation of the condition. Treatment does not include routine physical examinations, eye examinations, or dental examinations.