March 2017, Vol. 2

FMLA rules for instructional employees

by April Mabry 

Q: Are instructional employees eligible for intermittent family medical leave?

In recognition of the need to preserve the instructional program, the Family and Medical Leave Act (FMLA) regulations provide special rules for instructional employees needing intermittent leave for planned medical treatment for themselves or a family member. As with any other employee, the district must grant intermittent or reduced-schedule leave to instructional employees because of a medical necessity.

If the leave for the planned treatment is more than 20 percent of the total number of working days over the period the leave would extend, the district may require the instructional employee to choose between the following:
  • Temporarily transferring to an alternative position with the same pay and benefits that would better accommodate the need for leave.
  • Taking leave for the duration of the planned treatment or care (a block of time) as long as the block of time does not begin earlier than the first day that leave is needed and does not extend beyond the last day that leave is needed.
To invoke this rule, the district must provide the employee with the option to transfer to another position. The employee cannot be forced to take the leave as a block of time if the district does not offer the employee an opportunity to transfer to an alternate position.

Instructional employees who are absent 20 percent or less during the foreseeable leave period cannot be subject to transfer to an alternative position.

Instructional employee defined
 
The FMLA regulations define an instructional employee as an individual who provides direct instruction to students and whose primary job is to teach and instruct students in a class, small group, or individual setting. This may include teachers, coaches, driving instructors, and special education assistants such as interpreters. It does not include administrators, counselors, psychologists, curriculum specialists, or other professional support personnel.
 
Transfer rules for non-instructional employees

Transfer provisions only apply to situations where the need for leave is foreseeable because of planned medical treatment. The district may require a non-instructional employee to temporarily transfer to an available alternative position for which he or she is qualified that better accommodates the need for intermittent or reduced leave schedule. If the need for intermittent leave is due to a chronic, reoccurring condition that is not predictable, the transfer provision would not apply.
 
When the district requires the non-instructional employee to transfer to an alternative position, the transfer may only occur during the period of time that the intermittent or reduced leave schedule is required. The alternative position does not need to have equivalent duties; however, the pay and benefits must be the same. In addition, the transfer may include altering an existing job to better accommodate the employee’s need for intermittent or reduced leave schedule.
 
Additional information on family and medical leave can be found in the HR Library and The Administrator’s Guide to Managing Leaves and Absences, which is available for purchase in the TASB Store.