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Legal Opinions

by Jennifer Jacobson, ATPE staff attorney

When it’s a family affair

Sometimes urgent health- and family-related needs take priority over work life. When such needs hinder your ability to work, you might be able to take leave under the Family and Medical Leave Act (FMLA).

Under FMLA, eligible employees may take up to 12 weeks of leave during a 12-month period for certain common qualifying situations. In some cases, you can take FMLA leave on an intermittent or reduced-schedule basis—for example, if you or a family member require periodic appointments or treatments for a health condition.

Recent changes to FMLA place additional responsibilities on employees. Here’s what you need to know about the changes in order to take advantage of this benefit:

• You must provide sufficient notice of your need to take FMLA leave. Sufficient notice means at least 30 days for foreseeable events (such as childbirth or appointments). If 30 days’ notice is not possible, you must give notice as soon as is practicable. The new regulations allow employers to deny FMLA leave in instances where the employee fails to give timely notice. As soon as you can, you must also give notice of your expected date of return as well as of any changes to that date.
• You must provide your employer with sufficient information to allow your employer to designate the leave as FMLA.
• If your employer requires medical certification in order to grant or continue FMLA leave, it is your responsibility to provide complete certification. Your employer can ask you to obtain certification more than once (for example, if an extension of leave is needed). When you’re ready to work again, you might be required to obtain certification of fitness to work.
• You must comply with any additional requirements set forth by your employer, such as how and to whom you must provide notice. Failure to comply with employer policies can result in denial of leave.
• When you need intermittent or reduced-schedule leave, you must make reasonable efforts to schedule the leave in agreement with your employer so that, when possible, your leave is arranged in ways that minimize disruption for the employer. There are also limitations on when some school employees may take leave intermittently.

Further information about FMLA leave can be found in your district’s policies. Ask for a copy of your district’s FMLA policies and procedures as soon as you think you might have qualifying circumstances. If you’re unsure what constitutes a “qualifying circumstance,” read on.

Who is eligible?

To qualify, you must have been with your current employer for at least 12 months, and you must have worked at least 1,250 hours in the 12 months directly preceding your request for FMLA leave. After 12 months, full-time teachers are presumed to meet the 1,250-hour requirement in recognition of the work they perform beyond the instructional day.

FMLA leave is available to you when you have need for leave under the following qualifying circumstances:

• The birth or adoption of a child.
• Your own serious health condition, as defined by the statute and regulation.
• Your need to care for a seriously ill child, spouse or parent.
• Your need to care for a covered service member with a serious injury or illness.
• A qualifying need arising due to your spouse, child or parent being called to active-duty status with short notice.

Compensation concerns

Whether you receive any salary while on FMLA leave depends on whether you have accrued leave available. In some cases, an employee might opt to use accrued leave or be required by employer policies to use it while on FMLA leave. However, paid leave may not be used concurrently with FMLA leave when you are receiving paid disability leave.

Your employer is obligated to continue paying its portion of your health insurance premiums while you are on FMLA leave. You are still responsible for whatever portion of those premiums you normally pay. However, should you voluntarily leave employment rather than returning from FMLA leave, your employer will, in many cases, be entitled to repayment of the health insurance premiums it has paid for you during your leave.

Returning to work

When you return to work from FMLA leave, the law requires that you be returned to the same position or one that is equivalent in terms and conditions, including pay, even if the employer had to replace you while you were absent. For school employees, the law requires that the procedures by which you are reinstated be set forth in written board policy and provided to you prior to your taking FMLA leave.

Employees often ask if they can lose their jobs for taking FMLA leave. The law prohibits employers from taking any negative employment action against an employee for taking FMLA leave. It is also against the law for an employer to hinder, discourage or interfere with your ability to take this type of leave.

Additional questions

The law also prohibits your employer from retaliating against you for inquiring about your rights under FMLA, so ask! Remember, too, that the ATPE Member Legal Services Department is ready to help eligible members who need advice or assistance with FMLA-related issues.

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