All eligible full-time employees will be provided with leave as required by the federal Family and Medical Leave Act of 1993 (FMLA) and applicable state laws and State Board of Education policies. The Wilkes County Board of Education strictly prohibits interfering with, restraining or denying the ability of any employee to exercise any right provided by the FMLA. The Board of Education also strictly prohibits any type of discrimination against or discharge of an employee who has filed a complaint in regard to the FMLA. A copy of this policy will be provided to any employee who has requested FMLA-eligible leave.
A. ENTITLEMENT TO LEAVE
The school district will grant unpaid leave for up to 12 weeks to employees who have been employed for at least 12 months and have worked at least 1,250 hours during the previous 12 month period for:
• the birth of a child of the employee and in order to care for the child;
• the placement of a child with the employee for adoption or foster care;
• taking care of the spouse, child or parent of the employee, if the spouse, child or parent has a serious health condition; or
• a serious health condition that makes the employee unable to perform the functions of the employee's position.
The 12 month period in which the 12 weeks of leave entitlement occurs will be from July 1 to June 30.
B. STRUCTURE OF LEAVE
Leave for the adoption or birth of a child can be taken using no more than six weeks of paid leave. Additional time may be taken as unpaid leave. For a situation involving an employee's serious health condition or that of a family member, the employee may take leave continuously or on an intermittent or reduced leave schedule as is medically necessary.
Instructional personnel may be required to continue leave through the end of the school semester if any of the following conditions exist:
• the leave is beginning more than five weeks before the end of the term; the leave will last at least three weeks; and the employee will be returning to work in the last three weeks of the academic term;
• the leave is for a purpose other than the employee's own serious health condition; the leave would begin in the last five weeks of the term; and the employee would be returning to work during the last two weeks of the academic term; or
• the leave is for a purpose other than the employee's own serious health condition; the leave would begin in the last three weeks of the term; and the leave would last at least five days.
If instructional personnel are required to take leave until the end of the academic term, only the period of leave until the employee is ready and able to return to work will be charged against the employee’s FMLA entitlement.
In order to better accommodate an employee's need for intermittent or reduced leave for a serious health condition, the school district may require an employee to take an alternative position during the period of leave. The alternative position must have equal pay and benefits but it does not have to have equivalent duties. If an instructional employee requests intermittent or reduced scheduled leave for more than 20 percent of the working days of the duration of the leave for the employee's or family member's serious health condition, the school district alternatively may require the employee to take continuous leave for up to the entire duration of the scheduled leave.
C. DESIGNATION OF LEAVE AND EMPLOYEE NOTICE AND VERIFICATION REQUIREMENTS
To ensure that employees receive proper notification of their rights and responsibilities and that leave is properly designated, all employees requesting any type of leave must make the request to the superintendent. It is the responsibility of the personnel director to ask any questions necessary of the employee in order to make a determination of whether the leave is FMLA-eligible. The superintendent may require notice of the need and the reason for leave. The superintendent’s designation must be made within two business days of having obtained the information, unless there is a justifiable delay, such as waiting for documentation. Leave cannot be designated as FMLA-eligible, and therefore count towards the 12 weeks entitlement, after the employee has returned to work from the leave. An exception to this requirement can be made if the school district did not learn the reason for the absence until the employee’s return to work or a preliminary designation was made while waiting for all relevant information. Leave may be designated as both FMLA-eligible and as leave under the paid leave policy if paid leave has been substituted. Such leave would be counted towards the 12 weeks FMLA entitlement.
An employee must provide at least 30 days notice if the employee can anticipate the need for FMLA leave. If this is not possible, the notice will be given as soon as “practicable, taking into account all the facts and circumstances. If the employee does not provide 30 days notice, and there is no reasonable justification for the delay, the school district can deny the taking of FMLA leave until at least 30 days after the employee provides notice of the need for FMLA leave. If an instructional employee fails to give required notice for foreseeable leave for an intermittent or reduced leave schedule, the employee may be required to take leave continuously for the duration of the treatment or be temporarily transferred to an alternative position for which the employee is qualified and that has the same benefits.
An employee requesting intermittent or reduced leave time for medical treatment of a serious health condition may be required to give the reasons for the intermittent or reduced leave schedule and the schedule for treatment. Normally, employees also would be expected to discuss scheduling with their immediate supervisor prior to scheduling any medical treatment in order to accommodate the work schedule.
The school district may require employees to provide medical certification to confirm the employee's or the employee's family member's serious health condition. The information requested will be no more than that allowed by the FMLA and the Americans With Disabilities Act. Under certain circumstances, the superintendent may request a second or third verification if there is reason to doubt the validity of the medical certification.
Before returning to work from FMLA leave for a serious health condition, the employee will be required to present a "fitness-for-duty" certificate which states that the employee is able to return to work, unless the employee took intermittent leave or took leave for a family member’s serious health condition.
The school district may require an employee to report periodically on his or her status and intent to return to work. Any employee who is taking leave through the end of an academic semester will be required to report on his or her intent to return to work no later than four weeks before the end of the academic semester. In addition, the employee may be required to report on his or her intent to return to work on a regular basis while on FMLA leave.
D. SUBSTITUTION OF PAID LEAVE
Accrued vacation, sick, or personal leave will be substituted for any FMLA-eligible leave. Employees of the school district also may substitute extended sick leave for instructional personnel, or disability leave for FMLA-eligible leave in circumstances covered by Board of Education policy 7510 for paid sick and disability leave. If paid leave is substituted under circumstances which qualify as FMLA leave, the leave can be counted towards the 12 week entitlement of FMLA leave if designated as FMLAeligible at the time leave is taken.
If paid leave is substituted for unpaid FMLA leave for continuous leave of more than 10 days, all employee responsibilities in the FMLA to provide notice for foreseeable and unforeseeable leave, medical certification, fitness for duty certification, and notice of intent to return to work, apply as specified in this policy and Board of Education policy 7510.
E. RESTORATION TO EQUIVALENT POSITION
Employees will be restored to an equivalent or the same position upon return from FMLA leave. The equivalent position will have virtually identical pay, benefits and working conditions, including privileges, perquisites and status, as the position held prior to the leave. The position also must involve substantially similar duties and responsibilities, which must entail substantially equivalent skill, effort, responsibility and authority. All positions within the same job classification are considered to be "equivalent positions" for purposes of this policy, so long as these conditions are met. For licensed employees, all positions with the same salary and licensure requirements also will be considered equivalent positions, so long as these conditions are met.
F. CONTINUATION OF HEALTH BENEFITS
Health benefits will be continued for the duration of FMLA leave. This includes key employees who have been notified that they will not be restored to an equivalent position. The health care benefits will be the same as if the employee were continuing to work. Employees do not have the right to the accrual of earned benefits during the leave. If an employee takes intermittent or reduced leave, he or she has the right to maintain the same health care benefits, but earned benefits may be reduced in proportion to hours worked where such a reduction is normally based upon hours worked.
Health insurance premiums paid while an employee is on FMLA leave may be recovered if the employee does not return to work after leave, so long as the reason for not returning does not relate to a serious health condition or to circumstances beyond the employee's control.
G. POSTING REQUIREMENT
The superintendent or designee will ensure that notices of FMLA provisions and information on procedures for filing complaints are posted in places where employees and applicants would find them readily accessible.
H. RECORD KEEPING REQUIREMENT
The personnel department will be responsible for maintaining records of the following information for at least three years: basic payroll and identifying employee data; dates (or hours) of FMLA leave taken by each employee and premium payments of employee benefits. Medical information, such as that relating to medical certifications, also will be maintained in the personnel department in confidential medical records.
Copies of employee notices, including general and specific notices, as well as any other documents describing employee benefits or policies and records of disputes between the school district and any employee regarding designation of FMLA leave will be maintained by the superintendent for at least three years.
Legal References: Family and Medical Leave Act of 1993; 29 U.S.C.S. 2601; 29 C.F.R. pt. 825; 16 NCAC 6C.0400 - .0405
Cross References: Leave of Absence (policy 7510)
Adopted: January 9, 2006
Revised: May 4, 2009