An Administrator's Guide to California Private School Law

Chapter 8 – Leaves And Absences

c. No Minimum Amount Of Leave There is no minimum amount of FMLA leave that must be taken. Schools must account for the leave using an increment no greater than the shortest period of time that the school uses to account for other forms of leave provided it is not greater than one hour. In addition, an employee’s FMLA leave entitlement may not be reduced by more than the actual amount of leave taken. 1133 Moreover, a school may not require an employee to take more leave than is necessary to address the circumstances that precipitated the need for the leave, provided that the leave is counted using the shortest increment of leave used to account for any other type of leave. 1134 d. Intermittent Leave Or Leave On A Reduced Leave Schedule Under certain circumstances, leave may be taken intermittently or on a reduced leave schedule. “Intermittent leave” is leave taken in separate blocks of time due to a single qualifying reason, rather than for one continuous period of time, and may include leave of periods from an hour or more to several weeks. 1135 “Reduced leave schedule” means a leave schedule that reduces the employee’s usual number of hours per workweek or workday, usually from full- to part-time. 1136 Where leave is taken because of the birth or the placement of a child for adoption or foster care, intermittent leave or leave on a reduced leave schedule may only be taken if the school agrees. However, where leave is taken to care for a sick family member, covered service member, or for the employee’s own serious health condition, intermittent leave or leave on a reduced leave schedule may be taken when “medically necessary” (e.g., weekly physical therapy treatments). 1137 There must be a medical need for leave (as distinguished from voluntary treatments and procedures) and it must be that such medical need can be best accommodated through an intermittent leave or reduced leave schedule. Employees needing such leave must make a reasonable effort to schedule their leave so as not to disrupt the school’s operations. 1138 If an employee needs intermittent leave or leave on a reduced leave schedule that is foreseeable based on planned medical treatment, the school may require the employee to transfer temporarily, during the period that the intermittent leave or reduced schedule leave is required. Schools may not transfer employees who take unforeseeable intermittent leave even if the use of intermittent leave is regular, frequent, or predictable. 1139 Transfer to an alternative position requires compliance with any applicable collective bargaining agreement. 1140 In addition, a school cannot transfer an employee to an alternative position in order to discourage the employee from taking leave or otherwise work a hardship on the employee. For example: transferring a white-collar exempt employee to perform laborer’s work; transferring a day-shift employee to the graveyard; or transferring an employee to a work site a significant distance away from the employee’s regular work site, are all impermissible. 1141 Wisbey v. City of Lincoln 1142

An emergency dispatcher provided her employer with a note from her physician stating that her recurring cycle of depression and anxiety interfered with her energy level, motivation, and concentration. Thus, she would need to take time off work intermittently and without notice over the next six months or longer. The City sent her to a fitness for duty examination and

An Administrator’s Guide to California Private School Law ©2019 Liebert Cassidy Whitmore 268