Chronically Absent Employees: Hints for Handling FMLA Leaves

Small School Districts' Association Newsletter, March/April, 2011

One of the most challenging issues small school districts face is handling chronically absent employees. Not only does an employee’s absence mean either a competent substitute must be found or the employee’s duties must be distributed among an already-overworked staff, but the district has the additional burden of navigating the complex issues and laws involved in employee leaves.

Although there are more issues than space available, this article addresses a few of the main problem areas we see related to the federal Family and Medical Leave Act (“FMLA”) and the California Family Rights Act (“CFRA”). For simplicity, both leaves are referred to as FMLA leave. While generally the acts overlap, it is important to realize that both exist and that there are some differences between the two, especially in the area of pregnancy leaves.

The first step when addressing an absent employee is to determine whether the employee is eligible for FMLA leave. All public employers, including school districts, are subject to FMLA, but not all employees are eligible. There are three factors which determine eligibility: (1) the employee has at least 12 months of service with the district; (2) the employee has been employed for at least 1,250 hours of service with the district during the prior 12-month period immediately preceding the leave; and (3) there is an FMLA-qualifying purpose for the leave (leave may be used for birth or adoption of a child and care of a newborn; the employee’s own serious health condition, or the serious health condition of the employee’s spouse, child or parent (not parent-in-laws).) If any of these factors are not met, the employee does not qualify for FMLA leave. It is also important to be aware that there are special eligibility rules for teachers.

Eligible employees are entitled to a total of 12 work weeks of leave during any 12-month period and leave may also be taken intermittently. Employers may choose among various methods for calculating the 12-month period and how your district calculates this period could result in an employee being entitled to multiple 12-week leave periods during a school year. Allowable options for determining the 12-month period include: (1) the calendar year; (2) any fixed 12-month ‘leave year,’ such as a fiscal year; (3) a year defined by State law; (4) a year starting on an employee’s ‘anniversary’; (5) the 12-month period measured forward from the date an employee’s first FMLA leave begins; or (6) a ‘rolling’ 12-month period measured backward from the date an employee uses any FMLA leave (this method avoids stacking of back-to-back leaves).

While an employee must provide sufficient notice to make the district aware that she needs FMLA leave and the anticipated timing and duration of the leave, it is the employer’s responsibility to designate that leave as FMLA-qualifying and to notify the employee it has done so. There are very limited situations where an employer can designate leave as FMLA-qualifying after the employee has returned to work. If an employer fails to designate the leave as FMLA leave and give notice to the employee, the employee is entitled to the full protection of the acts but none of the absences preceding the notice may be counted against the employee’s 12-week entitlement.

It is recommended that school districts develop a notification letter issued upon any indication that an absence may be for FMLA-qualifying reason. It is also recommended this notification state whether the school district is requiring or allowing employees to substitute paid leave for the unpaid FMLA leave. If the employee is not informed of a school district’s requirement that any paid leaves (such as sick, vacation etc.) are running concurrently with the FMLA leave, the employee would likely be entitled to the FMLA leave, and then use all of her paid leaves, thus increasing the time absent and the potential costs related to the absence.