An Administrator's Guide to California Private School Law

Chapter 8 – Leaves And Absences

An employee may be on “non-FMLA leave” (e.g. sick or medical leave) at the time he or she meets the 12-month eligibility requirements. Under these circumstances, the employee may become FMLA eligible while out on the non-FMLA leave. 1119 b. 1,250 Hours Of Service In determining whether an employee has worked the minimum 1,250 hours of service, the Fair Labor Standards Act (FLSA) hours-worked principles are to be applied. Thus, the employee must have actually worked 1,250 hours to qualify. Sick and vacation time will not count, unless the employee worked while on sick or vacation leave. If the school cannot clearly demonstrate that the employee did not work 1,250 hours in the preceding 12 months, the employee is deemed to be a covered employee. 1120 For FLSA exempt employees (those not entitled to overtime) the school need not keep a record of actual hours worked. The reason is that eligibility for FMLA leave is presumed for any employee who has been employed for at least 12 months. With respect to exempt employees who take intermittent leave or who are on a reduced leave schedule, the school and employee must agree on the employee’s normal schedule or average hours worked each week and reduce their agreement to a written record. 1121 c. Fifty Employee Determination The determination as to whether 50 employees are employed within a 75-mile radius is to be made at the time the leave is requested. If there are not 50 employees employed within 75 miles at that time, the employee may renew his or her request at a later date. Once an employee’s eligibility is determined it is not affected by any subsequent change in the number of employees employed within 75 miles of the employee’s work site, even if a drop in employment is foreseeable. Similarly, a school may not terminate leave that has already started if the employee count drops below 50. 1122 LCW Practice Advisor

When counting the number of employees, the FMLA generally includes any employee whose name appears on the school’s payroll. Consequently, it is possible that substitute teachers may be counted as employees when determining whether the school employs 50 or more employees. 1123

2. CFRA The definition of “eligible employee” is identical under both Acts. To be eligible for leave under the CFRA, the employee must have been employed for “at least” 12 months prior to commencement of the CFRA leave. 1124 The CFRA regulations also provide that if an employee takes pregnancy disability leave which is also an FMLA leave, and then wants to take CFRA leave to bond with her child immediately after her pregnancy disability leave, the 12-month period during which she must have worked 1,250 hours is that period immediately preceding her first day of pregnancy disability leave, not the first day of the subsequent CFRA leave for reason of the birth of her child. 1125

An Administrator’s Guide to California Private School Law ©2019 Liebert Cassidy Whitmore 266