DEBA(LEGAL) - LEAVES AND ABSENCES: FAMILY AND MEDICAL LEAVE

Note: This policy summarizes the Family and Medical Leave Act (FMLA) and implementing regulations, including family and medical leave for an employee seeking leave because of a relative's military service. For provisions on leaves in general, see DEB. For provisions addressing leave for an employee's military service, see DEBB.

General Provisions

Covered Employers

Eligible Employee

  1. Has been employed by an ESC for at least 12 months. The 12 months need not be consecutive;
  2. Has been employed by an ESC for at least 1,250 hours of service during the 12-months immediately preceding the commencement of leave; and
  3. Is employed at a worksite where 50 or more employees are employed by the ESC within 75 miles of that worksite.

29 U.S.C. 2611(2); 29 C.F.R. 825.110

Qualifying Reasons for Leave

  1. For the birth of a son or daughter, and to care for the newborn child.
  2. For placement with the employee of a son or daughter for adoption or foster care. [For the definitions of "adoption" and "foster care," see 29 C.F.R. 825.122]
  3. To care for the employee's spouse, son or daughter, or parent with a serious health condition.
  4. Because of a serious health condition that makes the employee unable to perform the functions of the employee's job. [For the definition of "serious health condition," see 29 C.F.R. 825.113]
  5. Because of any qualifying exigency arising out of the fact that the employee's spouse, son, daughter, or parent is a military member on covered active duty or call to covered active duty status (or has been notified of an impending call or order to covered active duty) [see Qualifying Exigency, below]. [For the definition of "military member," see 29 C.F.R. 825.126(b). For the definition of "covered active duty" and "call to covered active duty status," see 29 C.F.R. 825.102]
  6. To care for a covered servicemember with a serious injury or illness incurred in the line of duty if the employee is the spouse, son, daughter, parent, or next of kin of the servicemember. [For the definitions of "covered servicemember" and "serious injury or illness," see 29 C.F.R. 825.102, .122]

29 U.S.C. 2612(a); 29 C.F.R. 825.112

Qualifying Exigency

  1. Short-notice deployment.
  2. Military events and related activities.
  3. Childcare and school activities.
  4. Financial and legal arrangements.
  5. Counseling.
  6. Rest and recuperation.
  7. Post-deployment activities.
  8. Parental care.
  9. Additional activities, provided that the ESC and employee agree that the leave shall qualify as an exigency, and agree to both the timing and duration.

29 C.F.R. 825.126

Pregnancy or Birth

Definitions

Equivalent Position

Next of Kin

  1. The blood relative specifically designated in writing by the covered servicemember as his or her nearest blood relative for purposes of military caregiver leave under the FMLA. The designated individual shall be deemed to be the covered servicemember's only next of kin; or
  2. When no such designation has been made, the nearest blood relative other than the covered servicemember's spouse, parent, son, or daughter, in the following order of priority:
    1. Blood relatives who have been granted legal custody of the covered servicemember by court decree or statutory provisions,
    2. Brothers and sisters,
    3. Grandparents,
    4. Aunts and uncles, and
    5. First cousins.

29 C.F.R. 825.127(b)(3)

Parent

Son or Daughter

Spouse

Leave Entitlement and Use

Amount of Leave

29 U.S.C. 2612(a), (f); 29 C.F.R. 825.120(a)(3), .200, .201

Determining the 12-Month Period

  1. The calendar year;
  2. Any fixed 12-month "leave year," such as a fiscal year, or a year starting on an employee's "anniversary" date;
  3. The 12-month period measured forward from the date any employee's first FMLA leave begins; or
  4. A "rolling" 12-month period measured backward from the date an employee uses any FMLA leave.

29 C.F.R. 825.200(b)

Military Caregiver Leave

Summer Vacation and Other Extended Breaks

Intermittent or Reduced Leave Schedule

29 U.S.C. 2612(b); 29 C.F.R. 825.102. 202

Transfer to Alternative Position

Calculating Leave Use

Substitution of Paid Leave

Compensatory Time

FMLA and Workers' Compensation

29 C.F.R. 825.207(e)

Maintenance of Health Benefits

29 U.S.C. 2614(c); 29 C.F.R. 825.209

Payment of Premiums

Failure to Pay Premiums

29 C.F.R. 825.212

Recovery of Benefit Cost

Right to Reinstatement

Moonlighting During FMLA Leave

Reinstatement of School Employees

Pay Increases and Bonuses

29 C.F.R. 825.215(c)

Key Employees

Notices and Medical Certification

Employer Notices

General Notice

  1. Include the notice in employee handbooks or other written guidance to employees concerning employee benefits or leave rights, if such written materials exist; or
  2. Distribute a copy of the general notice to each new employee upon hiring.

29 C.F.R. 825.300(a)

Eligibility Notice

29 C.F.R. 825.300(b)

Rights and Responsibilities Notice

Designation Notice

29 C.F.R. 825.300(d)

Retroactive Designation

Employee Notice

Foreseeable Leave

29 C.F.R. 825.302

Unforeseeable Leave

Compliance with ESC Requirements

Certification of Leave

Timing

Incomplete or Insufficient Certification

29 C.F.R. 825.305(c)

Medical Certification of Serious Health Condition

29 C.F.R. 825.306

Genetic Information

Authentication and Clarification

29 C.F.R. 825.307(a)

Second and Third Opinions

Foreign Medical Certification

Recertification

29 C.F.R. 825.308

Certification—Qualifying Exigency Leave

29 C.F.R. 825.309

Certification—Military Caregiver Leave

29 C.F.R. 825.310

Intent to Return to Work

Fitness for Duty Certification

Failure to Provide Certification

Miscellaneous Provisions

Records

29 C.F.R. 825.500

Prohibition Against Discrimination and Retaliation

Note: The following provisions only apply to an ESC that employs "instructional employees" as defined below.

Special Rules for Instructional Employees

Instructional Employees

29 C.F.R. 825.600

Failure to Provide Notice of Foreseeable Leave

20 Percent Rule

  1. To take leave for a period or periods of a particular duration, not greater than the duration of the planned treatment; or
  2. To 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.

29 U.S.C. 2618(c); 29 C.F.R. 825.601, .603

Leave at the End of a Semester

29 U.S.C. 2618(d); 29 C.F.R. 825.603

More Than Five Weeks Before End of Semester

  1. The employee begins leave more than five weeks before the end of the semester;
  2. The leave will last at least three weeks; and
  3. The employee would return to work during the three-week period before the end of the semester.

During Last Five Weeks of Semester

  1. The employee begins leave during the last five weeks of the semester for any reason other than the employee's own serious health condition or a qualifying exigency;
  2. The leave will last more than two weeks; and
  3. The employee would return to work during the two-week period before the end of the semester.

During Last Three Weeks of Semester

29 C.F.R. 825.602

Region III Education Service Center

DEBA(LEGAL)-ESCA

UPDATE 25

DATE ISSUED: 7/6/2020