Family & Medical Leave Act (FMLA)

As a general matter, teachers are generally entitled to the same FMLA rights as anyone else. However, there are special rules intended to prevent disruption in the classroom.

State employees in certain states are not protected by the FMLA. It is questionable whether the FMLA applies to state employees in other states.

TEACHERS SPECIAL RULES FOR LEAVE UNDER THE FMLA

Special rules for teachers which modify an employee's FMLA rights relate to:

• Time taken intermittently.
• If a leave of absence is scheduled to end during the last few weeks of a semester.

If you wish to take leave intermittently, as opposed to a single block of time, such as to accommodate chemotherapy treatments on a weekly basis, and the amount of leave requested is more than 20% of the workweek, your employer can either require you to take the leave in a single block of time, or switch you to another position with equal pay and benefits that would be better suited for intermittent leave.

For example, if you work 5 days a week and request one day off each week for a period of time for medical treatment, you would be requesting 20% of the workweek off as leave. Your employer could require you to either take the full week off as well as subsequent weeks during the duration of your treatment, or your employer could transfer you to another position for the duration of the leave. If, however, your request for time off were limited to only one afternoon per week, you would be under the 20% threshold, providing that you work a 40 hour week, and thus your employer could not require you to take the leave in blocks of time.

If a leave of absence under the FMLA is scheduled to end during the last few weeks of a semester, your employer can require you to extend your leave through the end of that semester. This additional leave would not count against your 12 weeks of leave under the FMLA. During the additional leave your employer would be required to continue your health insurance. Your employer would also be required to hold your job open for the additional weeks of forced leave.

STATE EMPLOYEES AND THE FMLA

The FMLA specifically indicates that it applies to state employees for qualified employers with 50 or more employees in a 75 mile radius. However, three circuit court of appeals decisions have nullified this provision effectively making the FMLA inapplicable to otherwise qualified state employees -- at least in the states of Arkansas, Delaware, Iowa, Louisiana, Minnesota, Missouri, Mississippi, Nebraska, New Jersey, North Dakota, Pennsylvania, South Dakota and Texas.

• If you are an employee of one of those states, you may still ask for unpaid leave, but you must be aware that you do not have a right to it unless your state law provides such a right.
• It is not clear what will happen to state employees requesting FMLA leave in states other than those listed.

If the FMLA does apply

Generally, if you are employed by the state for a minimum of twelve months, whether or not you move between state offices, departments or political sub-divisions, you will be considered employed by a single employer and will meet the twelve-month requirement. Likewise for employment by a county, city, or town. This does not mean that if you work for the state and then for the county, that you have worked for a single employer. A state is a single employer; a county is a single employer; and a city is a single employer.

Caution: There are some unusual cases where this rule does not apply. For example, in Tennessee, the County School System and the County Government have a history of separation and the "single employer" rule does not apply for employees of these entities.

For the law in your state, see State FMLA .

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