An Administrator's Guide to California Private School Law

Chapter 8 – Leaves And Absences

F. S PECIAL P ROVISIONS R EGARDING U SE O F FMLA L EAVE F OR E DUCATIONAL E MPLOYEES As discussed in detail below, school employees who provide instruction have more limited leave rights under the FMLA than employees in other industries. The CFRA, however, provides no special rules for instructional employees. In fact, it specifically states that the leave “is available to instructional employees of educational establishments and institutions under the same conditions as apply to all other eligible employees.” 1199 Thus, except in the rare situation where an employee is on leave that falls under the FMLA but not the CFRA, instructional employees are to be treated the same as other eligible employees. 1200 The FMLA provides some separate rules for employees of local educational agencies. “Local educational agencies” include private elementary and secondary schools. These rules apply to eligible employees employed principally in an instructional capacity. Except as otherwise noted, the rules set forth below only apply in those rare situations where an employee’s leave falls only under FMLA (and not CFRA), such as when an employee utilizes FMLA for military caregiver or qualifying exigency leave. 1. S UMMER B REAK Leave taken for a period that ends with the school year and begins the next semester is leave taken consecutively rather than intermittently. The period during the summer vacation when the employee would not have been required to report for duty is not counted against the employee’s FMLA entitlement. 1201 This rule applies equally to CFRA leave. 2. I NTERMITTENT L EAVE O R R EDUCED L EAVE S CHEDULE If an eligible instructional employee needs intermittent leave or leave on a reduced leave schedule, which is foreseeable based on a planned medical treatment, and the employee would be on leave for more than 20 percent of the total number of working days during the period in which the leave would extend, the school may require that such employee elect either to:  Take leave for periods of a particular duration not to exceed the duration of the planned medical treatment; or

 Transfer temporarily to an available alternative position offered by the school for which the employee is qualified, has equivalent pay and benefits, and better accommodates recurring periods of leave than the regular employment position of the employee. 1202

These rules only apply to a leave involving more than 20 percent of the working days during the period over which the leave extends. Employees taking leave which constitutes 20 percent or less of the working days during the leave period would not be subject to transfer to an alternative position. 1203

An Administrator’s Guide to California Private School Law ©2019 Liebert Cassidy Whitmore 280