Family Medical Leave Act: New Progress for ESP Coverage

The Family Medical Leave Act (FMLA) provides certain employees with up to 12 weeks of unpaid, job-protected leave per year.

WHO IS ELIGIBLE? Employees who have worked for the board of education for at least 12 months and at least 1,250 hours over the past 12 months. A 10-month certificated employee who has worked full-time during the school year will qualify for benefits under FMLA on the first day of work of their second year of employment. This is because the 1,250 hours includes all compensable hours or work, including all time worked outside of the negotiated duty day. (Preparing for instruction would be included in calculating the minimum hour threshold.)

This isn’t the case for non-certificated, non-exempt, 10-month employees — education support professionals (ESPs) — of a local board of education. Most ESP don’t meet the 1,250 hour threshold requirement, particularly if they work fewer than eight hours per day.

Fortunately, a bill has been introduced in the US Senate to address this inequity. The ESP Family Leave Act would update FMLA so that all ESPs who work more than 60% of the total monthly hours expected for their specific role are able to access benefits. This will benefit the almost 3 million ESPs across the country working in public schools.

While we wait for the outcome of the legislation, it is still important to have negotiated FMLA-like benefits within your local association’s collective bargaining agreement to ensure the same or similar right to unpaid, job-protected leave for employees.

WHAT IS COVERED? FMLA provides benefits in any of the following instances:

• For the birth and care of a newborn or an adopted child of an employee;

• To care for an immediate family member (spouse, child, or parent) with a serious health condition; or

• For the employee’s own serious health condition.

WHAT ARE THE BENEFITS? Eligible employees are entitled to 12 work weeks. This leave, in certain circumstances, may be taken intermittently or on a reduced schedule basis. When leave is needed for planned medical treatment, it is expected that the employee will make a reasonable effort to schedule treatment so as not to unduly disrupt school operations.

Under most collective bargaining agreements, employees are required to use accrued paid leave concurrently — such as sick, annual, or personal — to cover some or all of the FMLA leave period.

The Department of Labor recently issued an opinion that employers may not delay the designation of FMLA qualifying leave and may not designate more than 12 weeks of leave as FMLA. But this opinion has no legal effect on negotiations or existing language in collectively bargained agreements. In any case, group health insurance benefits must be maintained during FMLA leave.

HOW TO OBTAIN FMLA BENEFITS? If you are seeking leave for an FMLA-qualifying reason, you don’t need to expressly assert FMLA rights or even mention FMLA. If a local board of education is provided sufficient information to reasonably determine that the requested leave is for an FMLA-qualifying event, then the necessary paperwork should be provided to the employee.