An Administrator's Guide to California Private School Law

Chapter 8 – Leaves And Absences

she was found unfit for duty. The City then terminated her employment. The Eighth Circuit Court of Appeals found that the FMLA does not provide an employee suffering from depression with a right to unscheduled and unpredictable, but cumulatively substantial, absences or a right to take unscheduled leave at a moment’s notice for the rest of her career.

Though leave may be taken on an intermittent or reduced basis, schools may not otherwise require employees to work when on FMLA/CFRA leave. 1143

LCW Practice Advisor

e. Calculating Intermittent Leave Or Leave On A Reduced Leave Schedule If an employee takes leave intermittently or on a reduced leave schedule, only the amount of leave actually taken may be counted towards the 12 weeks of leave (or 26 weeks for military caregiver leave) to which an employee is entitled. For example, if an employee takes one day of leave per week, he or she has used 1/5 of a week of FMLA leave. Similarly, if an employee who regularly works eight-hour days works four-hour days on a reduced leave schedule, the employee would use one-half of a week of FMLA leave. 1144 2. CFRA Employees are entitled to 12 weeks of leave during any 12-month consecutive period. 1145 a. Computing The 12-Month Period The CFRA permits schools to choose from any of the methods allowed in the FMLA regulations for determining the 12-month period in which the 12 weeks of CFRA leave entitlement occurs. 1146 That is, the School may compute the 12-month period based on a calendar year, a fixed 12-month “leave year,” 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. However, the employer must apply the chosen method uniformly to all employees and notify employees requesting CFRA leave of its chosen method. 1147 b. Twelve Workweeks Twelve workweeks means the equivalent of 12 of the employee’s normally scheduled workweeks. For eligible employees who work more or less than five days a week, or who work on alternative work schedules, the number of working days which constitute 12 weeks is calculated on a pro rata or proportional basis. For example, for a full-time employee who works five 8-hour days per week, 12 workweeks means 60 working or paid 8-hour days of leave entitlement. For an employee who works half- time, 12 workweeks may mean 30 eight-hour days or 60 four-hour days, or 12 workweeks of whatever is the employee’s normal half-time work schedule. 1148 c. Intermittent Leave Or Reduced Leave Schedule The provisions of the CFRA are identical to the FMLA regarding intermittent leave and leave on a reduced leave schedule. 1149

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