563R - Family and Medical Leave (FML)

The Family and Medical Leave Act (FMLA) of 1993, and as amended by the National Defense Authorization Act of 2008, entitles qualified employees leave for the following leave situations:
  1. The birth and first-year care of a child;

  2. The adoption or foster placement of a child;

  3. The serious health condition of an employee's spouse, parent, or child; and,

  4. The employee's own serious health condition;

  5. The qualifying exigency, as defined by the US Department of Labor, of the employee’s spouse, child, or parent in support of a contingency operation as a result of being called to active duty in the Armed Forces.

  6. To care for a covered servicemember with a serious health condition if the employee is the spouse, son, daughter, parent, or next of kin of the servicemember. 
To be eligible for leave under this policy the employee must have at least 12 months of service (service does not have to be consecutive) with the Frederick County Public School system and have worked at least 1,250 hours during the twelve (12) month period immediately preceding the need for FML. 

Employees requesting leave are required to provide the School Board at least 30 days notice before the date on which the leave is to begin unless such advance notice is not practical.  If the 30-day notice required under FMLA for foreseeable leave is not given, leave may be denied until 30 days after notice is given.  Where the leave is not foreseeable, notice should be provided as soon as practicable (i.e., within one or two working days). 

Available FML will be determined using a rolling 12 month period measured backward from the date an employee uses FMLA qualifying leave.  Employees are entitled to either twelve (12) or twenty-six (26) weeks of FMLA leave depending on the qualifying event for which leave will be taken.  In no circumstance will leave in excess of twenty-six (26) weeks be available during any rolling 12 month period. 

FCPS will designate leave, paid or unpaid, as FMLA-qualifying, based on information provided by the employee. Employees, except those covered by the VRS Hybrid plan, may, but are not required to, substitute available paid leave for all or any unpaid FML leave needed for the employee's own serious health condition. Those covered by the hybrid VRS plan will use the short-term disability plan that is part of that retirement plan during a qualified leave. Employees may substitute up to five (5) sick leave days for unpaid FML leave to care for a seriously ill family member. Available paid leave is that which has been accrued or that which is made available per existing policy. For employees hired on or after January 1, 2014, FML will also coordinate, if applicable, to the Short-term Disability Plan provided by the school division. For those employees, absence from work may not exceed the greater of the benefit under FML or the Short-term Disability Plan.

When spouses are both employed by FCPS and both are entitled to leave, the following will apply: 
  1. If the leave is taken due to the birth or placement of a child or to care for a parent with a serious health condition, they are entitled to a combined total of 12 work weeks.

  2. If the leave is taken to care for a spouse or child with a serious health condition, or due to the employee's own serious health condition, each is entitled to his or her full 12 work weeks reduced by any leave taken by that individual for the reasons in #1 above. 
Leave for the Birth or Adoption of a Child 

An eligible employee shall be granted FMLA leave for the purpose of caring for a newborn or newly adopted child for a period of up to 12 weeks.  Leave for this qualifying event must begin and end within the 12 months following the birth or adoption of a child.  Employees requesting leave for this reason must provide reasonable notice (30 days) of the expected birth or adoption.  FML taken due to the birth or adoption of a child may not be taken intermittently or on a reduced leave schedule. 

The employee may, but is not required to, substitute all available paid leave for unpaid FML during the period of time the employee is medically unable to work.  Sick leave bank benefits (if applicable) will run concurrent with FML.  Once the employee is released by his/her doctor to return to work, any additional leave taken will be unpaid unless the employee has and elects to substitute some other form of paid leave for the absence. 

If the employee must stop working prior to delivery, a doctor's certificate will be required.  Once the child is born, a doctor's certificate will be required and must indicate when the employee is medically able to return to work. 

Leave for the Employee's Own Illness or Illness of Employee's Spouse, Parent, or Child 

Upon request, any eligible employee shall be granted FMLA leave as a result of the employee's own serious health condition or the serious health condition of the employee's spouse, parent, or child.  A serious health condition includes an illness, injury, impairment, or physical or mental condition that involves: 
  1. Inpatient care in a hospital, hospice, or residential medical care facility; or,

  2. Continuing treatment by (or under the supervision of) a health care provider.
In most cases, the employee is entitled to 12 weeks of FML for a serious health condition or the serious health condition of a qualifying spouse, child, or parent.  If, however, the serious health condition of the spouse, child, or parent, is the result of active duty in the Armed Forces, the leave may be up to 26 work weeks. 

To be eligible for leave for the employee’s own serious health condition, the serious health condition must make the employee unable to perform the functions of his/her position. 

If medically necessary, any available FML may be taken on an intermittent or reduced schedule basis.  However, if an employee requests intermittent medical leave that is foreseeable based on planned medical treatment, the School Board reserves the right to require the employee to transfer to an alternative position with equal pay and benefits which better accommodates recurring periods of absence or a reduced schedule. 

If an instructional employee requests intermittent or reduced leave for planned medical treatment for more than 20% (more than one day a week) of the total number of working days in the period during which the leave would be used, the School Board may require the employee to elect either to (1) take leave for a "particular duration" of time which is not greater than the duration of the planned treatment, or (2) be transferred to an alternative position.  An instructional employee is one who provides direct instructional services and whose presence in the classroom is necessary to the education process. 

The medical certification for the employee's personal illness must identify that the employee is unable to perform the functions of his/her job.  In addition, the certification must identify the nature of the illness, the date the illness began, and the projected return-to-work date.  At the employer's discretion and expense, a second medical opinion may be required to certify the serious health condition.  A doctor's certificate will be required upon return to work from a leave due to the employee's own illness. 

For leave to care for the serious health condition of a child, spouse, or parent, the medical certification must certify that the employee is needed, and include an estimate of the amount of time the employee will be needed to provide care. 

If the required medical certifications are not provided, FML may be denied until the certification is provided.  The employee will be allowed at least 15 days to provide the required certification.

Leave for the Qualifying Exigency of the Employee’s Spouse, Child, or Parent 

Employees may take FML for the qualifying exigency of a spouse, child, or parent.  Leave for this purpose is limited to 12 weeks and in certain circumstances may be limited to seven (7) days.  Leave may be because the spouse, child, or parent is already on or has been notified of an impending call to active duty in the Armed Forces.  Leave for this reason may be taken on an intermittent basis.

Leave to Care for a Servicemember with a Serious Illness or Injury 

Employees may take up to twenty-six (26) weeks of leave to care for a member of the Armed Forces, including a member of the National Guard or Reserves, or a member of the Armed Forces, National Guard, or Reserves who is on the temporary disability retired list, who has a serious injury or illness incurred in the line of duty and for which the individual is undergoing continued treatment, recuperation, or therapy, or otherwise in outpatient status, or otherwise continues to remain on the temporary disability retired list.  Leave under this section is not available for a former servicemember or if the servicemember is on the permanent disability retired list.  Leave under this section may be taken by the spouse, son, daughter, parent, or next of kin of the covered servicemember.  In cases where the employee is the next of kin of the servicemember, the definition and restrictions contained in the Act with respect to who may be considered next of kin shall apply. 

Benefits During Leave 

For those employees on an approved leave of absence, under this policy, FCPS will maintain the employee's benefits under the same conditions that would apply if the employee were not on leave.  If applicable, employees will be allowed to continue healthcare coverage, life insurance, and participation in the medical flexible spending account during his/her leave as long as the required forms, premiums, and applicable contributions are received in a timely manner. 

If any premiums or applicable contributions are not paid in a timely manner and the premiums were required to prevent a lapse in coverage, the School Board is entitled to recover any and all premiums paid for benefits other than the required healthcare coverage payments made on the employee's behalf whether or not the employee returns from FML.  If an employee does not return to work upon the expiration of FML, the School Board is entitled to recover its share of medical insurance premiums paid during the FML as allowed under Regulation 825.213 of the Act and excess sick leave used but not earned under School Board Regulation 549R, Personnel – Absences and Leave. 

The FML and any subsequent leave of absence periods shall be counted toward, and run concurrent with, the maximum number of months for which the employee is eligible under COBRA regulations.  

If an employee wishes to extend leave beyond the 12 weeks allowed under FMLA, he/she may request a Leave of Absence subject to School Board Regulation 554R, Personnel - Leave of Absence. Requesting a Leave of Absence to extend an FMLA qualifying absence does not guarantee that the LOA will be granted. Granting an LOA requires that the employee meets eligibility requirements and that the absence is a qualifying event under Regulation 554R, Personnel - Leave of Absence. 

Taking FML will not result in the loss of any benefit accrued before the leave, but the employee may not accrue seniority or benefits while on leave (i.e., retirement, annual leave, personal leave, or sick leave).

Return To Work From An Approved Leave 

Employees returning from an approved FMLA leave will be restored to the position held when the leave started or an equivalent position with equivalent pay, benefits, and other terms and conditions of employment. 

Employees electing and returning from an approved leave of absence under School Board Regulation 554R, Personnel -  Leave of Absence, will be reinstated under the guidelines set forth in that regulation since FMLA reinstatement rights will have ended.

Under certain circumstances, employees identified as "key" employees may be denied restoration to employment.  A key employee is an employee who is salaried and is "among the highest paid 10%" of employees within a 75 miles radius of his/her worksite.  A key employee must be among the highest paid 10% of all salaried and non-salaried, eligible and ineligible, employees.  Upon requesting FML, an employee will be notified by the School Board of his/her status as a key employee and if there is a possibility that the employer may deny reinstatement after the leave. 

The School Board reserves the right to consider its needs and act in the best interests of the students and the school division, concerning the return of an employee to active assignment. 

The following return to work provisions apply to instructional employees as previously defined: 
  1. If an instructional employee begins an approved FMLA leave more than 5 weeks before the end of an school year, the employee may be required to continue taking leave until the end of the year if the leave is at least 3 weeks in duration and the return to work would occur during the last 3 weeks of the school year.

  2. If an instructional employee begins approved FMLA leave for a purpose other than the employee's own serious health condition during the last 5 weeks before the end of a school year, the employee may be required to continue taking leave until the end of the year if the leave is longer than 2 weeks in duration and the return to work would occur during the last 2 weeks of the school year.

  3. If an instructional employee begins approved FMLA leave for a purpose other than the employee's own serious health condition during the last 3 weeks before the end of a school year, the employee may be required to continue taking leave until the end of an academic term if the leave is longer than 5 days in duration.
Any variation between this policy and the Family and Medical Leave Act will be determined in favor of the Act.


Legal Reference(s): 
Family and Medical Leave Act-Public Law 103-3, 1993

National Defense Authorization Act of 2008
 

Adopted: January 3, 1994
Amended: July 21, 1998 
Amended: November 1, 2009 
Amended: November 23, 2009
Amended: July 1, 2015