An Administrator's Guide to California Private School Law

Chapter 8 – Leaves And Absences

c. Retroactive Designation Of Leave The CFRA regulations provide that schools may not retroactively designate leave as “CFRA leave” after the employee has returned to work, except with appropriate notice to the employee and where the employer’s failure to timely designate does not cause harm or injury to the employee. 1262 3. O VERLAP O F T HE T WO A CTS Schools should comply with the posting requirements of both the CFRA and the FMLA. Schools should also comply with the FMLA’s notice requirements for responding to requests for leave as they are more comprehensive than the CFRA’s requirements. J. A RE E MPLOYEES E NTITLED T O B E P AID W HILE O N L EAVE ? 1. FMLA FMLA leave is unpaid. However, an employee may elect or a school may require an employee to use paid accrued leave under certain circumstances. 1263 a. Employee’s Right To Substitute Paid Leaves For Unpaid FMLA Leave Where an employee has earned or accrued paid vacation, administrative leave, or personal or family leave, that paid leave may be substituted for all or part of any (otherwise) unpaid FMLA leave. The term “substitute” means that the paid leave provided by the school will run concurrently with the unpaid FMLA leave. As for sick leave, an employee is entitled to use sick leave concurrently with FMLA leave only if both of the two following conditions are met:  FMLA leave is needed to care for a family member or the employee’s own serious health condition; and  The school’s sick leave policy would permit the use of sick leave for the purpose requested under the FMLA. b. Schools’ Right To Require An Employee To Use Paid Leave When An Employee Requests FMLA Leave Schools have the right to require employees to exhaust their accrued leaves concurrently with FMLA leave to the same extent that employees have the right to use their accrued leaves concurrently with FMLA leave. 1264 A school may require an employee who substitutes paid leave for FMLA leave to comply with the terms and conditions of the school’s normal leave policy. If an employee does not comply with the additional requirements in a school’s paid leave policy, the employee is not entitled to substitute accrued paid leave, but the employee remains entitled to unpaid FMLA leave. 1265

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