Q: A teacher is going on maternity leave with two weeks left in the school year. She will be starting FMLA leave when she goes out. She wants to take the rest of her FMLA leave (the remaining 10 weeks) at the beginning of the next school year. Can she?
A: Yes. The Family Medical Leave Act (FMLA) permits eligible employees to take up to 12 workweeks of leave in a single 12-month period. The birth of a child is a qualifying reason for FMLA leave and federal law provides that leave taken for a period that ends with the school year and begins the next semester is leave taken consecutively; meaning that the period during the summer when the employee is not required to work is not counted against her FMLA entitlement.
Whether a particular holiday or break may be counted against an employee’s FMLA leave depends on a few factors. However, in the above example—where the district is closed for one, multi-week break during the summer—federal regulations provide that the district is prohibited from counting any of the days it is closed for business against an employee’s FMLA leave, unless the employee was otherwise scheduled to work during the closure, such as a security guard or maintenance staff. 29 C.F.R. §825.200 (h), §825.601(a).
Keep in mind that federal law also requires that “[a]n instructional employee who is on FMLA leave at the end of the school year must be provided with any benefits over the summer that employee would normally receive if they had been working at the end of the school year.” 29 C.F.R. §825.601(a). It is also important to note that spouses who are employed by the same district may be limited to a combined total of 12 weeks of FMLA leave during the 12-month period. Check your local policy at DECA to determine the election made by your board of trustees concerning this issue.
Finally, understand that the above analysis may change if the FMLA year for your district is defined as school year or fiscal year, rather than calendar year. Each district sets its own policy determining the 12-month FMLA period. For example, some districts measure the 12-month period from the employee’s anniversary date, some use the calendar year, and others use the first day of the school year. Accordingly, if the District sets their 12-month FMLA year to begin on the first duty day of the school year, the District would need to reevaluate the teacher’s FMLA leave status including eligibility, the qualifying event, and the amount of leave available, at the first of the year. For specific questions about calculating FMLA leave, please contact your local school attorney.