An Administrator's Guide to California Private School Law

Chapter 8 – Leaves And Absences

C. H OW M UCH L EAVE T IME I S A N E MPLOYEE E NTITLED T O T AKE ?

1. FMLA Under the FMLA, an eligible employee is entitled to a total of 12 workweeks of leave during any 12-month period in four situations: (1) for the employee’s own serious health condition; (2) to care for a family member with a serious health condition; (3) for the birth or placement of a child for adoption or foster care; and (4) to address a “qualifying exigency” involving an employee’s family member on covered active military duty. 1126 In addition, an employee is entitled to up to 26 weeks of leave during a single 12-month period to care for a family member, or “next of kin,” service member who incurs a serious injury or illness while on active duty. The single 12-month period applicable to military caregiver leave can be different from the 12-month period applicable to other FMLA leaves. 1127 a. Computing The 12-Month Period The FMLA permits schools to choose from one of several alternatives to compute the 12-month period applicable to all types of FMLA leave except for military caregiver leave. This includes the calendar year, a fixed 12-month period for all employees, 12 months measured forward from the first date leave is used, and a rolling 12-month period measured backward from the date leave is used. The rolling 12-month period measured backward from the date leave is used is the only method which prevents “stacking” of back-to-back leave entitlements. 1128 Under the “rolling” 12-month period, each time an employee takes FMLA leave the remaining leave entitlement would be any balance of the 12 weeks which has not been used during the immediately preceding 12 months. For example, if an employee has taken eight weeks of leave during the past 12 months, an additional four weeks of leave could be taken. If an employee used four weeks beginning February 1, 2018, four weeks beginning June 1, 2018, four weeks beginning December 1, 2018, the employee would not be entitled to any additional leave until February 1, 2019. 1129 Schools may change their method of computing the 12-month period to another alternative if they provide employees at least 60-day notice, and the transition takes place in such a way that the employees retain the full benefit of 12 weeks of leave under whichever method affords the greatest benefit to the employee. 1130 If a school fails to select one of the specified methods for computing the 12-month period for FMLA leave, the option that provides the most beneficial outcome for the employee will be used. 1131 b. Holiday Occurring While Employee Is On Leave If a holiday occurs within an entire week taken as FMLA leave, the week is counted as a week of FMLA leave. However, if an employee is using FMLA leave in increments of less than one week, the holiday will not count against the employee’s FMLA entitlement unless the employee was otherwise scheduled and expected to work during the holiday. In cases where a school closes for a week or more (e.g., spring or summer breaks) that time does not count against the employee’s FMLA leave entitlement. 1132

An Administrator’s Guide to California Private School Law ©2019 Liebert Cassidy Whitmore 267