Q: We have a teacher who had back surgery last week and was determined to be eligible for FMLA to cover the period of leave. The medical certification we received indicated that she would need at least 6 weeks of recovery. Can we count her recovery days over the summer as FMLA days, such that she will not have additional FMLA eligibility when she returns in August?
A: No. The Family Medical Leave Act provides that if an employer’s operations are “closed” for a period of one week or more it cannot count the days of closure against the employee’s FMLA eligibility. The employee is not, however, automatically entitled to FML in August when school resumes without updated medical certification confirming the necessity for leave.
The Family Medical Leave Act (FMLA) provides 12-weeks of unpaid leave to any employee who has worked for your District for at least 12 months. Federal regulations interpreting the FMLA provide that, unless an employee is scheduled to work during a closure, any days that an employer is “closed” for business may not be counted as days “used” by the employee under FMLA. 29 C.F.R. §825.200(h); §825.601(a). In the school district context, even though the administrative offices may be operational during the summer months, teachers on 10-month contracts are typically not scheduled to work. Thus, the summer weeks for which they are not contracted cannot be counted towards their FMLA exhaustion. If the employee used 2 weeks of FMLA leave prior to summer break, this means that (theoretically) she could return in August with an additional 10-weeks of eligible leave to use, if her medical provider certifies she continues to suffer from a serious medical condition that requires her absence from work.
We recommend review of your DEC (LOCAL) and DECA (LOCAL) policies, which provide the specific elections your district has made regarding FMLA leave. Importantly, take note of the “Twelve-Month Period” in your local policy, which provides the time period for which employees have entitlement to FMLA leave each 12-month cycle. For some districts, this time period may be a calendar year, others may elect to follow the school calendar. Note, many districts’ “Twelve-Month Period” rolls over during the summer. If this is the case, the employee would be entitled to a renewed 12 weeks of leave over the summer and before return in August if certified by her physician.
Even if the employee has additional weeks or days still available under the FMLA, the District can (and should) still require the employee to provide medical documentation certifying the continued need for leave. If the employee indicated the desire to take the rest of her FMLA leave in August (once school starts back), the District should ask the employee to submit an additional medical certification from her physician, as the prior documentation received indicated that she would be fully recovered over the summer. As each district’s policies may differ on FMLA leave, and each employee’s eligibility is fact-intensive, we recommend contacting your local school attorney for specific questions regarding implementation of the FMLA.