School is back in session: What does this mean for FMLA?

August 17, 2023

An empty classroom.
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It is a special time of year that parents look forward to, the start of a new school year. As teachers prepare their classrooms, this is a good a time for school districts and their human resource departments to review their Family and Medical Leave Act (FMLA) processes and policies. This blog will serve as a deep dive into the nuances of FMLA regulations for school systems and their employees.

Special rules: Subpart F

Under Subpart F of the FMLA regulations, special rules apply to school districts (this includes charter schools and private K-12 schools as well). 29 CFR §825.600 (a) states that these special rules do not apply to educational institutions such as colleges, universities, trade schools and preschools. The fact that preschools are specifically excluded is interesting. In many school districts, preschool is offered as a program provided by the district. However, staff working in preschool programs may not fall under the same definition as other school employees. This discrepancy can be confusing for districts trying to unify their FMLA policies.

First, school systems do not need to abide by the 50-employee rule that private employers need to meet to be FMLA eligible. Under 29 CFR §825.600 (b), the 50-employee rule does not apply and this exemption in effect makes all employees potentially eligible, regardless of the individual school’s size. This rule was put into effect to help with rural or isolated school systems, but it impacts all school systems. The regulation does state that while schools are exempt from the 50-employee rule, employee’s eligibility requirements remain the same and that includes the 50/75 rule stating that employees must work at a location that has a minimum of 50 employees within a 75-mile radius.

The most important aspect of Subpart F is the information regarding instructional employees. Instructional employees are defined as employees whose principal function is to teach or instruct students in a class, small group or individual setting. Considering this definition, you will see it could apply to a wide range of positions within the school.

Fortunately, 29 CFR §825.600 (c) makes it clear that the special rules do not apply to teacher assistants or aides who do not have actual teaching as their primary job. It also excludes auxiliary personnel such as counselors, psychologists or curriculum specialists.

Intermittent leave for instructional employees

One of the most common types of FMLA leave is intermittent leave. Under normal circumstances, once an employee is approved for use of intermittent leave, the leave proceeds and time is taken as needed. For instructional employees specifically, additional guidelines allow the employer more flexibility in managing intermittent leave.

Under 29 CFR §825.601 (a) (1) & (2), if an employee requests intermittent time off that exceeds more than 20 percent of their total number of working days over the period of leave requested, an employer could require the employee to do one of the following:

  • Take a continuous leave for a period or periods of time (not to exceed the total duration of planned treatment).
  • Temporarily transfer to an available alternative position for which the employee is qualified —and which provides equivalent pay and benefits — that better accommodates the need for leave.

This does not however mean that job protection no longer applies, and that we can move people from intermittent leave to continuous leave.

Because the principal job of an instructional employee is to teach, being gone more than 20 percent of the scheduled workdays would be disruptive to students. Subpart F allows for school districts to minimize the impact to students — while still offering FMLA protections — by allowing these employees to be accommodated in different ways. The first is by offering them the ability to block time off (continuous leave) for the duration of the reduced schedule for treatment. This allows a substitute to be brought in, so there is no classroom disruption.

The other method is to temporarily move the employee to a non-instructional position (with equal or better benefits) until such time when the need for leave does not require missing more than 20 percent of scheduled workdays. This allows instructional employees to enjoy the protections under FMLA, while protecting the integrity of the classroom in which students are learning.

Instructional employees are also subject to different rules if the leave carries from one academic term to the next, including over summer vacation. In all cases, since instructional employees would not be at work, the regulations allow those employees to continue to receive benefits over the summer break period. They will not be charged any time under the FMLA since they would not have been teaching during those weeks. The leave would resume at the beginning of the next academic term with the special provisions we discussed above. The regulations also note that schools cannot have more than two academic terms per calendar year. This means that for districts who had employees on FMLA leave at the end of the last academic term, FMLA leaves could resume once the fall academic term begins.

Finally, instructional employees can run into issues when they request leave close to the end of an academic term. 29 CFR §825.602 states that — like with reduced or intermittent leaves — school districts can require instructional employees who take leave with less than five weeks left before the end of the academic term to stay out for the remainder of the academic term (defined as a school semester), if their leave is less than the full five weeks. A fitting example of this is an employee who requests three weeks off for bonding due to birth, adoption or fostering a child — with less than five weeks prior to the end of the term. The school district could require that employee to take leave for the remainder of the term, to reduce the impact to the learning environment.

Looking forward

I am sure many of you are wondering, “So, how do we make the concept of Subpart F apply to other industries beyond education?” The reality is that these rules are reserved exclusively for schools. Subpart F also has some interesting language surrounding restoration to equivalent positions. Stay tuned for more on this in a forthcoming blog. In the meantime, thank your teachers for their unwavering dedication to educating the next generation. Just remember, the holiday break is only a few short months away and the kids will be back home full time.

Tags: children, family, Family and medical leave, FMLA, Leave, medical leave