An Administrator's Guide to California Private School Law

Chapter 8 – Leaves And Absences

c. Paid Leave While The Employee Is Also Receiving Disability Or Workers’ Compensation Benefits Where an employee qualifies for FMLA leave and is also taking leave pursuant to a school’s temporary disability policy, state disability benefit plan, or workers’ compensation injury, the provisions for substitution of the employee’s accrued paid leave are not applicable. Neither the employee nor the school may require the substitution of paid leave. But, schools and employees may agree to have paid leave supplement the disability plan or worker’s compensation benefits, such as in the case where a plan only provides replacement income for two-thirds of an employee’s salary. 1266 2. CFRA Schools have the right to require that an employee use accrued sick leave concurrently with CFRA leave for the employee’s own serious health condition, or any other reason if mutually agreed to between the school and employee. 1267 Schools cannot require employees to use sick leave when leave is taken for an ill family member. 1268 In any case, under a separate California law, employees are entitled to use up to half of the sick leave they would accrue in a year to care for a sick parent, child, spouse, or registered domestic partner. 1269 3. O VERLAP O F T HE T WO A CTS The CFRA mandates that a school cannot require an employee to use sick leave to care for a family member. The CFRA provision must be followed because it is more beneficial for employees than the FMLA provision. 1270 Moreover, if an employee requests to utilize accrued vacation leave or other accrued paid time off, other than sick leave , without reference to a CFRA-qualifying purpose, the school may not ask the employee if the leave is for a CFRA- qualifying purpose. 1271 K. A RE E MPLOYEES E NTITLED T O M EDICAL I NSURANCE O R O THER B ENEFITS W HILE O N F AMILY A ND M EDICAL C ARE L EAVE ? 1. FMLA During any FMLA leave, a school must maintain the employee’s coverage under any group health plan under the same conditions as coverage would have been provided if the employee had been continuously employed during the entire leave period. 1272 For example, if family member coverage is provided to an employee, family member coverage must be maintained during the FMLA leave. Similarly, benefit coverage for medical care, dental care, eye care, mental health counseling, and substance abuse treatment must be maintained during leave if provided in a school’s group health plan, including when coverage is provided through a flexible spending account or other component of a cafeteria plan. 1273

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