An Administrator's Guide to California Private School Law

Chapter 8 – Leaves And Absences

N. I S A N E MPLOYEE E NTITLED T O R EINSTATEMENT A FTER B EING O N L EAVE ? 1. FMLA Upon return from FMLA leave, an employee is entitled to be restored to the position of employment held by the employee when the leave commenced, or to an equivalent position with equivalent employment benefits, pay, and other terms and conditions of employment. 1290 Harris v. Metropolitan Government of Nashville and Davidson County, Tennessee 1291 Teacher, who also worked as a basketball coach, received a 12% coaching supplement for each year he coached. The coaching contract stated that he would have to complete the season to receive the full supplement and would be required to pay back any supplement not earned. The teacher missed half the basketball season while he was on FMLA leave. When he returned, the school reinstated him to head coach, but would only pay him half of the 12% coaching supplement and began "recouping" overpayments made while he was on leave. The Sixth Circuit Court of Appeals ruled that, under the coaching contract, the coach was not entitled to the coaching supplement for the period when he did not coach. Accordingly, the school’s failure to pay him his full coaching supplement was not retaliatory. If an employee is no longer qualified for the position, the employee shall be given a reasonable opportunity to fulfill any conditions required for qualification upon return to work. 1292 If the employee is unable to perform the position because of a physical or mental condition, the employee has no right to restoration to another position; however, the school’s obligations may be governed by the ADA. 1293 If employees exhaust their FMLA/CFRA leave entitlement, however, they no longer have a guaranteed right to reinstatement or to reinstatement to an equivalent position. 1294 Yet employees may have protections under the ADA or FEHA which could provide them with a right to reinstatement. a. Fitness-For-Duty Certification As a condition of restoring an employee whose FMLA leave was due to the employee’s own serious health condition that made the employee unable to perform the employee’s job, a school may have a uniformly applied policy or practice that requires all similarly situated employees who take leave for a serious condition to obtain and present a fitness-for-duty certification from the health care provider that the employee is able to resume work. 1295 The school, but not the employee’s direct supervisor, may contact the employee’s health care provider for purposes of clarifying and authenticating the fitness-for-duty certification. Clarification may be requested only for the serious health condition for which FMLA leave was taken. The school may not delay the employee’s return to work while contact with the health

An Administrator’s Guide to California Private School Law ©2019 Liebert Cassidy Whitmore 300