School Business Affairs February 2021

38 FEBRUARY 2021 | SCHOOL BUSINESS AFFAIRS LEGAL ISSUES Revisiting employees’ rights to take time off to care for themselves or family members. FMLA and COVID-19: Protecting Employees By Charles J. Russo, JD, EdD E ducation leaders continue to grap- ple with a wide range of COVID- 19-related issues, from ensuring social distancing to keeping facili- ties clean to providing virtual learning for students. Another issue facing school leaders focuses on the rights of employees who must take time off from work under the terms of the Family and Medical Leave Act (FMLA) to care for themselves or family members stricken by the coronavirus. Given the FMLA’s far-reaching impact, particularly while the coronavirus con- tinues to present serious health threats to school communities, the first part of this column primarily examines the Act and representative cases interpreting it, none of which directly involved FMLA in relation to COVID-19. Please see the sidebar on page 40 for a synopsis of the now-expired Families First Coronavirus Response Act (FFCRA), an emergency expansion of the FMLA. The Family and Medical Leave Act When Congress enacted the Family and Medical Leave Act in 1993, it recognized the importance of parents participating in early childrearing and of individuals car- ing for family members who have serious health conditions. FMLA also addressed the notion that the lack of employment policies to accommodate working parents can force them to choose between job security and parenting, and that employees who have serious health conditions that prevent them from working temporarily lack adequate job security. FMLA Rights Under the FMLA, public agencies (including school districts) with 50 or more employees per working day during each of 20 or more calendar workweeks in a current or preced- ing calendar year must provide unpaid leave to eligible staff members for medical or childcare needs during set 12-month peri- ods. Officials must provide their employees with adequate notice about their FMLA rights ( Valdivia v. Township High School District 2019). To be covered by the FMLA, school employees, including part-time staff, must have worked for a minimum of 12 months, completing at least 1,250 hours of service during the year immediately preceding the start of their leave. Educators who request leave must give school officials 30 days’ notice or as much as is practicable. Subject to greater protections under other federal or state laws, or from collective bar- gaining agreements, employees are entitled to 12 weeks of unpaid leave during any 12-month period as provided for in their employers’ FMLA policies. Interpreting the Act, the Fifth Circuit affirmed that a school board in Texas did not violate FMLA in recalculating an employee’s eligibility at the start of a new FMLA year ( Lyons v. North East Independent School District 2008). If board policies permit paid leave for fewer than 12 weeks, the remainder of leave may be without pay. School employees who have accrued paid vacation, personal, or family leave may choose to, or school boards may require them to, substitute these days for unpaid leave. If board policies forbid substitutions, then they are not permitted. In devising BBOURDAGES/STOCK.ADOBE.COM