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DECB (TSBVI) Leaves and Absences: Military Leave

Note: This policy addresses leave for an employee’s military service. For provisions on leaves in general, see Policy DEC. For provisions regarding the Family and Medical Leave Act (FMLA), including FMLA leave for an employee seeking leave because of a relative’s military service, see Policy DECA.

FEDERAL MILITARY LEAVE

Reemployment

Any person who is absent from a position of employment by reason of voluntary or involuntary service in the uniformed services shall be entitled to certain reemployment rights and benefits under the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) if:

  1. The person (or an appropriate officer of the uniformed service in which such service is performed) has given advance written or verbal notice of such service to TSBVI (unless notice is precluded by military necessity or is otherwise unreasonable or impossible);
  2. The cumulative length of the absence and of all previous absences from a position of employment with TSBVI does not exceed five years; and
  3. The person reports to or submits an application for reemployment to TSBVI and complies with the appropriate procedural requirements that apply under the circumstances.

For purposes of federal military leave, “uniformed services” means the Armed Forces; the Army National Guard and the Air National Guard when engaged in active duty for training, inactive duty training, or full-time National Guard duty; the commissioned corps of the Public Health Services; and any other category of persons designated by the President in time of war or emergency.

A person who is reemployed under USERRA is entitled to the seniority, and other rights and benefits determined by seniority, that the person had on the date of the commencement of uniformed service, plus the additional seniority, rights, and benefits that such person would have attained if the person had remained continuously employed.

Exception

TSBVI is not required to reemploy a person if:

  1. TSBVI’s circumstances have so changed as to make reemployment impossible or unreasonable;
  2. The reemployment of such person would impose an undue hardship on the School; or
  3. The employment from which the person leaves to serve in the uniformed services is for a brief, nonrecurrent period and there is no reasonable expectation that such employment will continue indefinitely or for significant period.

38 U.S.C. 4301, et. seq.

STATE LEAVE FOR MEMBER OF MILITARY OR RESCUE TEAM

Leave of Absence

An employee of TSBVI who is a member of the state military forces, a reserve component of the United States Armed Forces, or a member of a state or federally authorized Urban Search and Rescue team shall be granted a paid leave of absence from the employee’s duties without loss of time, efficiency rating, annual leave, personal time, sick leave, or salary on all days during which the employee is engaged in authorized training or duty ordered or authorized by proper authority. Such leave shall not exceed 15 workdays in a fiscal year.

On employment, TSBVI shall provide written notice of the number of workdays of paid leave to which an employee is entitled each fiscal year under Government Code 437.202(a).

On request, TSBVI shall provide to an employee a statement that contains the number of workdays for which the employee claimed paid leave under Government Code 437.202(a) in that fiscal year.

A TSBVI employee who is a member of the Texas military forces, a reserve component of the armed forces, or a member of a state or federally authorized urban search and rescue team and who is ordered to duty by proper authority is entitled, when relieved from duty, to be restored to the position that the employee held when ordered to duty.

Gov’t Code 437.202(a), (d), (e)-(f)

Called to Duty

A service member of the Texas military forces who is ordered to state active duty or training and other duty by the governor or other proper authority under state law is entitled to the same benefits and protections provided to persons performing service in the uniformed services under 38 U.S.C. 4301-4313 and 4316-4319 (USERRA) and to persons in the military service of the United States under 50 U.S.C. 3901-3959, 3991, and 4011-4026. Gov’t Code 437.213

Reemployment

After Authorized Training or Duty

TSBVI may not terminate the employment of an employee who is a member of the military forces of this state or any other state because the employee is ordered to authorized training or duty by proper authority. The employee is entitled to return to the same employment held when ordered to training or duty and may not be subjected to loss of time, efficiency rating, annual leave, or any benefit of employment during or because of the absence. The employee, as soon as practicable after release from duty, must give written or actual notice of intent to return to employment. Gov’t Code 437.204

After Active Military Service

An employee, other than a temporary employee, who leaves a position with TSBVI to enter active military service is entitled to be reemployed by the School in the same position held at the time of the induction, enlistment, or order, or to a position of similar seniority, status, and pay. To be entitled to reemployment, the employee must be discharges, separated, or released form active military service and must be physically and mentally qualified to perform the duties of the position. Gov’t Code 613.001(3), .002

An employee who cannot perform the duties of the position because of a disability sustained during military service is entitled to reemployment in by TSBVI in a position that the employee can perform and that has like seniority, status, and pay as the former position, or the nearest possible seniority, status, and pay. Gov’t Code 613.003

To be reemployed, a veteran of the military must apply for reemployment not later than the 90th day after the date the veteran is discharged or released form active military service. Application must be made in writing to the Superintendent and have attached to it evidence of the veteran’s discharge, separation, or release from military service under honorable conditions. Gov’t Code 613.004

A person reemployed after active military service shall not be discharged without cause before the first anniversary of the date of the reemployment. Gov’t Code 613.001(2)

“Military service” means service as a member of the Armed Forces of the United States, a reserve component of the Armed Forces of the United States, the Texas National Guard, or the Texas State Guard. Gov’t code 613.001(2)

Use of Personal Leave

An employee with available personal leave is entitled to use the leave for compensation during a term of active military service. This provision applies to any personal or sick leave available under former law or provided by local policy.

TSBVI may adopt a policy providing for paid leave for active military service as part of the consideration of employment.

Education Code 22.003(d), (e)

GENERAL PROVISIONS

Covered Employer

All public elementary and secondary schools are “covered employers” under the FMLA, without regard to the number of employees employed. The term “employer” includes any person who acts directly or indirectly in the interest of TSBVI to any of the School’s employees. .29 U.S.C. 2611(4), 2618(a); 29 CFR 825.104(a)

Eligible Employee

“Eligible employee” means an employee who:

  1. Has been employed by TSBVI for at least 12 months. The 12 months need not be consecutive;
  2. Has been employed by TSBVI for at least 1,250 hours of service during the 12-months immediately preceding the commencement of leave; and
  3. Is employed at a worksite where 50 or more employees are employed by TSBVI within 75 miles of that worksite.

.29 U.S.C. 2611(2); 29 CFR 825.110

Qualifying Reasons for Leave

TSBVI shall grant leave to eligible employees:

  1. For the birth of a son or daughter, and to care for the newborn child;
  2. For placement with the employee of a son or daughter for adoption or foster care [For the definitions of “adoption” and “foster care,” see 29 CFR 825.122];
  3. To care for the employee’s spouse, son or daughter, or parent with a serious health condition;
  4. Because of a serious health condition that makes the employee unable to perform the functions of the employee’s job [For the definition of “serious health condition,” see 29 CFR 825.113.];
  5. Because of any qualifying exigency arising out of the fact that the employee’s spouse, son, daughter, or parent is a military member on covered active duty or call to covered active duty status (or has been notified of an impending call or order to covered active duty) [For the definition of “military member,” see 29 CFR 825.126(b). For the definition of “covered active duty” and “call to covered active duty status,” see 29 CFR 825.102.]; and
  6. To care for a covered service member with a serious injury or illness incurred in the line of duty if the employee is the spouse, son, daughter, parent, or next of kin of the service member. [For the definitions of “covered service member” and “serious injury or illness,” see 29 CFR 825.102, .122.]

29 U.S.C. 2612(a); 29 CFR 825.112

For provisions regarding treatment for substance abuse, see 29 CFR 825.119.

Qualifying Exigency

An eligible employee may take FMLA leave for one or more of the following qualifying exigencies:

  1. Short-notice deployment
  2. Military events and related activities
  3. Childcare and school activities
  4. Financial and legal arrangements
  5. Counseling
  6. Rest and recuperation
  7. Post-deployment activities
  8. Parental care
  9. Additional activities (provided that TSBVI and employee agree that the leave shall qualify as an exigency and agree to both the timing and duration)

29 CFR 825.126

Pregnancy or Birth

Both parents are entitled to FMLA leave to be with a healthy new-born child (i.e., bonding time) during the 12-month period beginning on the date of birth. In addition, the expectant mother is entitled to FMLA leave for incapacity due to pregnancy, for prenatal care, or for her own serious health condition following the birth of the child. The expectant mother is entitled to leave for incapacity due to pregnancy even though she does not receive treatment from a health-care provider during the absence and even if the absence does not last for more than three consecutive calendar days. A spouse is entitled to FMLA leave if needed to care for a pregnant spouse who is incapacitated, during her prenatal care, or following the birth of a child if the spouse has a serious health condition. [For the definition of “needed to care for,” see 29 CFR 825.124.] 29 CFR 825.120

Definitions

“Equivalent Position”

An “equivalent position” is one that is virtually identical to the employee’s former position in terms of pay, benefits, and working conditions, including privileges, perquisites, and status. It must involve the same or substantially similar duties and responsibilities, which must entail substantially equivalent skill, effort, responsibility, and authority. 29 CFR 825.215(a)

“Next of Kin”

“Next of kin of a covered service member” (for purposes of military caregiver leave) means:

  1. The blood relative specifically designated in writing by the covered service member as his or her nearest blood relative for purposes of military caregiver leave under the FMLA. The designated individual shall be deemed to be the covered service member’s only next of kin; or
  2. When no such designation has been made, the nearest blood relative other than the covered service member’s spouse, parent, son, or daughter, in the following order of priority:
    1. Blood relatives (who have been granted legal custody of the covered service member by court decree or statutory provisions)
    2. Brothers and sisters
    3. Grandparents
    4. Aunts and uncles
    5. First cousins

If there are multiple family members with the same level of relationship to the covered service member, all such family members shall be considered the covered service member’s next of kin and may take FMLA leave to provide care to the covered service member, either consecutively or simultaneously.

29 CFR 825.127(d)(3)

“Parent”

“Parent” (for purposes of family, medical, and qualifying exigency leave) means a biological, adoptive, step or foster father or mother, or any other individual who stood in loco parentis to the employee when the employee was a son or daughter. This term does not include parents “in law.” 29 CFR 825.122

For the definition of “parent of a covered service member” for purposes of military caregiver leave, see 29 CFR 825.127(d)(2).

“Son or Daughter”

“Son or daughter” (for purposes of family and medical leave) means a biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis, who is either under age 18, or age 18 or older and “incapable of self-care because of a mental or physical disability” at the time that FMLA leave is to commence. 29 CFR 825.122

For the definition of “son or daughter on active duty or call to active duty status” for purposes of qualifying exigency leave, see 29 CFR 825.122.

For the definition of “son or daughter of a covered service member” for purposes of military caregiver leave, see 29 CFR 825.127(d)(1).

“Spouse”

“Spouse” means a husband or wife. For purposes of this definition, husband or wife refers to the other person with whom an individual entered into marriage as defined or recognized under state law for purposes of marriage in the state in which the marriage was entered into or, in the case of a marriage entered into outside of any state, if the marriage is valid in the place where entered into and could have been entered into in at least one state.

This definition includes an individual in a same-sex or common law marriage that either:

  1. Was entered into in a state that recognizes such marriages; or
  2. If entered into outside of any state, is valid in the place where entered into and could have been entered into in at least one state.

29 CFR 825.102, .122

LEAVE ENTITLEMENT AND USE

Amount of Leave

Except in the case of military caregiver leave, an eligible employee’s FMLA leave entitlement is limited to a total of 12 workweeks of leave during a 12-month period for any one or more of the qualifying reasons.

Spouses who are employed by the same district may be limited to a combined total of 12 weeks of FMLA leave during any 12-month period if leave is taken for the birth of a son or daughter, the placement of a child for adoption or foster care, or to care for a parent with a serious health condition.

29 U.S.C. 2612(a), (f); 29 CFR 825.120(a)(3), .200, .201

Determining the 12-Month Period

Except with respect to military caregiver leave, a district may choose any one of the following methods for determining the “12-month period” in which the 12 weeks of leave entitlement occurs:

  1. The calendar year;
  2. Any fixed 12-month “leave year,” such as a fiscal year or a year starting on an employee’s “anniversary” date;
  3. The 12-month period measured forward from the date any employee’s first FMLA leave begins; or
  4. A “rolling” 12-month period measured backward from the date an employee uses any FMLA leave.

29 CFR 825.200(b)

Military Caregiver Leave

In the case of military caregiver leave, an eligible employee’s FMLA leave entitlement is limited to a total of 26 workweeks of leave during a “single 12-month period.” The “single 12-month period” is measured forward from the date an employee’s first FMLA leave to care for the covered service member begins, regardless of the method used by TSBVI to determine the 12-month period for other FMLA leaves. During the “single 12-month period,” an eligible employee’s FMLA leave entitlement is limited to a combined total of 26 workweeks of FMLA leave for any qualifying reason. 29 CFR 825.200(f), (g)

Spouses who are employed by TSBVI may be limited to a combined total of 26 weeks of FMLA leave during the “single 12-month period” if leave is taken as military caregiver leave, for the birth of a son or daughter, for the placement of a child for adoption or foster care, or to care for a parent with a serious health condition. 29 CFR 825.127(e)(3)

Summer Vacation and Other Extended Breaks

If TSBVI’s activity temporarily ceases and employees generally are not expected to report for work for one or more weeks (e.g., a school closing for two weeks for the Christmas/New Year holiday), those days do not count against the employee’s FMLA leave entitlement. Similarly, the period during the summer vacation when the employee would not have been required to report for duty is not counted against the employee’s FMLA leave entitlement. 29 CFR 825.200(h), .601(a)

Intermittent or Reduced Leave Schedule

FMLA leave may be taken intermittently or on a reduced leave schedule under certain circumstances. “Intermittent leave” is FMLA leave taken in separate blocks of time due to a single qualifying reason. A “reduced leave schedule” is a leave schedule that reduces an employee’s usual number of working hours per workweek, or hours per workday.

For leave taken because of the employee’s own serious health condition, to care for a spouse, parent, son, or daughter with a serious health condition, or military caregiver leave, there must be a medical need for leave and it must be that such medical need can be best accommodated through an intermittent or reduced leave schedule. Leave due to a qualifying exigency may also be taken on an intermittent or reduced schedule basis.

When leave is taken after the birth of a healthy child or placement of a healthy child for adoption or foster care, an employee may take leave intermittently or on a reduced leave schedule only if the School agrees.

29 U.S.C. 2612(b); 29 CFR 825.102, .202

Transfer to Alternative Position

If an employee requests intermittent or reduced schedule leave that is foreseeable based on planned medical treatment, a district may require the employee to transfer temporarily to an available alternative position for which the employee is qualified and which better accommodates recurring periods of leave than does the employee’s regular position. 29 U.S.C. 2612(b)(2); 29 CFR 825.204

Calculating Leave Use

When an employee takes leave on an intermittent or reduced schedule, only the amount of leave actually taken may be counted toward the employee’s leave entitlement. TSBVI must account for intermittent or reduced schedule leave using an increment no greater than the shortest period of time that TSBVI uses to account for use of other forms of leave, provided the increment is not greater than one hour. 29 CFR 825.205

Special Rules for Instructional Employees

Special rules apply to certain school employees. These special rules affect leave taken intermittently or on a reduced schedule, or taken near the end of an academic term (semester) by instructional employees.

“Instructional employees” are those whose main function is to teach and instruct students in a class, a small group, or an individual setting. This term includes not only teachers, but also athletic coaches, driving instructors, and special education assistants such as signers for the hearing impaired. It does not include teacher assistants or aides who do not have as their principal job actual teaching or instructing, nor does it include auxiliary personnel such as counselors, psychologists, or curriculum specialists. It also does not include cafeteria workers, maintenance workers, or bus drivers.

29 CFR 825.600

Failure to Provide Notice of Foreseeable Leave

If an instructional employee does not give required notice of foreseeable leave to be taken intermittently or on a reduced schedule, TSBVI may require the employee to take leave of a particular duration or to transfer temporarily to an alternative position. Alternatively, TSBVI may require the employee to delay the taking of leave until the notice provision is met. 29 CFR 825.601(b)

20 Percent Rule

If an eligible instructional employee needs intermittent leave or leave on a reduced leave schedule to care for a family member with a serious health condition, to care for a covered service member, or for the employee’s own serious health condition; the leave is foreseeable based on planned medical treatment; and the employee would be on leave for more than 20 percent of the total number of working days over the period the leave would extend, TSBVI may require the employee to choose:

  1. To take leave for a period or periods of a particular duration, not greater than the duration of the planned treatment; or
  2. To transfer temporarily to an available alternative position for which the employee is qualified, which has equivalent pay and benefits and which better accommodates recurring periods of leave than does the employee’s regular position.

“Periods of a particular duration” means a block or blocks of time beginning no earlier than the first day for which leave is needed and ending no later than the last day on which leave is needed, and may include one uninterrupted period of leave. If an employee chooses to take leave for “periods of a particular duration” in the case of intermittent or reduced schedule leave, the entire period of leave taken will count as FMLA leave.

29 U.S.C. 2618(c); 29 CFR 825.601, .603

Leave at the End of a Semester

As a rule, TSBVI may not require an employee to take more FMLA leave than the employee needs. The FMLA recognizes exceptions where instructional employees begin leave near the end of a semester. As set forth below, TSBVI may in certain cases re-quire the employee to take leave until the end of the semester.

The school semester, or “academic term,” typically ends near the end of the calendar year and the end of spring each school year. In no case may a school have more than two academic terms or semesters each year for purposes of the FMLA.

If TSBVI requires the employee to take leave until the end of the semester, only the period of leave until the employee is ready and able to return to work shall be charged against the employee’s FMLA leave entitlement. Any additional leave required by the district to the end of the semester is not counted as FMLA leave; however, TSBVI shall maintain the employee’s group health insurance and restore the employee to the same or equivalent job, including other benefits, at the end of the leave.

29 U.S.C. 2618(d); 29 CFR 825.603

More Than Five Weeks Before End of Semester

TSBVI may require an instructional employee to continue taking leave until the end of the semester if:

  1. The employee begins leave more than five weeks before the end of the semester;
  2. The leave will last at least three weeks; and
  3. The employee would return to work during the three-week period before the end of the semester.

During Last Five Weeks of Semester

TSBVI may require an instructional employee to continue taking leave until the end of the semester if:

  1. The employee begins leave during the last five weeks of the semester for any reason other than the employee’s own serious health condition or a qualifying exigency;
  2. The leave will last more than two weeks; and
  3. The employee would return to work during the two-week period before the end of the semester.

During Last Three Weeks of Semester

TSBVI may require an instructional employee to continue taking leave until the end of the semester if the employee begins leave during the three-week period before the end of the semester for any reason other than the employee’s own serious health condition or a qualifying exigency.

29 CFR 825.602

Substitution of Paid Leave

Generally, FMLA leave is unpaid leave. However, an employee may choose to substitute accrued paid leave for unpaid FMLA leave. If an employee does not choose to substitute accrued paid leave, TSBVI may require the employee to do so. The term “substitute” means that the paid leave provided by TSBVI, and accrued pursuant to established policies of TSBVI, will run concurrently with the unpaid FMLA leave. An employee’s ability to substitute accrued paid leave is determined by the terms and conditions of the district’s normal leave policy. 29 U.S.C. 2612(d); 29 CFR 825.207(a)

Compensatory Time

If an employee requests and is permitted to use accrued compensatory time to receive pay during FMLA leave, or if TSBVI requires such use, the compensatory time taken may be counted against the employee’s FMLA leave entitlement. 29 CFR 825.207(f)

FMLA and Workers’ Compensation

A serious health condition may result from injury to the employee “on or off” the job. If TSBVI designates the leave as FMLA leave, the leave counts against the employee’s FMLA leave entitlement. Because the workers’ compensation absence is not unpaid, neither the employee nor TSBVI may require the substitution of paid leave. However, TSBVI and an employee may agree, where state law permits, to have paid leave supplement workers’ compensation benefits.

If the health-care provider treating the employee for the workers’ compensation injury certifies that the employee is able to return to a “light duty job” but is unable to return to the same or equivalent job, the employee may decline TSBVI’s offer of a “light duty job.” As a result, the employee may lose workers’ compensation payments, but is entitled to remain on unpaid FMLA leave until the employee’s FMLA leave entitlement is exhausted. As of the date workers’ compensation benefits cease, the substitution provision becomes applicable and either the employee may elect or the district may require the use of accrued paid leave.

29 CFR 825.207(e)

Maintenance of Health Benefits

During any FMLA leave, TSBVI must maintain the employee’s coverage under any group health plan on the same conditions as coverage would have been provided if the employee had been continuously employed during the entire leave period.

An employee may choose not to retain group health plan coverage during FMLA leave. However, when the employee returns from leave, the employee is entitled to be reinstated on the same terms as before taking leave without any qualifying period, physical examination, exclusion of pre-existing conditions, and the like.

29 U.S.C. 2614(c); 29 CFR 825.209

Payment of Premiums

During FMLA leave, the employee must continue to pay the employee’s share of group health plan premiums. If premiums are raised or lowered, the employee would be required to pay the new premium rates. 29 CFR 825.210

Failure to Pay Premiums

Unless TSBVI has an established policy providing a longer grace period, TSBVI’s obligations to maintain health insurance coverage cease if an employee’s premium payment is more than 30 days late. In order to terminate the employee’s coverage, the School must provide written notice to the employee that the payment has not been received. Such notice must be mailed to the employee at least 15 days before coverage is to cease, advising that coverage will be dropped on a specified date at least 15 days after the date of the letter unless the payment has been received by that date. Coverage for the employee may be terminated at the end of the 30-day grace period, if the required 15-day notice has been provided.

Upon the employee’s return from FMLA leave, the district must still restore the employee to coverage/benefits equivalent to those the employee would have had if leave had not been taken and the premium payment(s) had not been missed. The employee may not be required to meet any qualification requirements imposed by the plan, including any new preexisting condition waiting period, to wait for an open season, or to pass a medical examination to obtain re-instatement of coverage.

29 CFR 825.212

Recovery of Benefit Cost

If an employee fails to return to work after FMLA leave has been exhausted or expires, TSBVI may recover from the employee its share of health plan premiums during the employee’s unpaid FMLA leave, unless the employee’s failure to return is due to one of the reasons set forth in the regulations. TSBVI may not recover its share of health insurance premiums for any period of FMLA leave covered by paid leave. 29 CFR 825.213

Right to Reinstatement

On return from FMLA leave, an employee is entitled to be returned to the same position the employee held when leave began, or to an equivalent position with equivalent benefits, pay, and other terms and conditions of employment. An employee is entitled to reinstatement even if the employee has been replaced or his or her position has been restructured to accommodate the employee’s absence. However, an employee has no greater right to reinstatement or to other benefits and conditions of employment than if the employee had been continuously employed during the FMLA leave period. 29 CFR 825.214, .216(a)

Moonlighting During Leave

If TSBVI has a uniformly applied policy governing outside or supplemental employment, the policy may continue to apply to an employee while on FMLA leave. TSBVI that does not have such a policy may not deny FMLA benefits on the basis of outside or supplemental employment unless the FMLA leave was fraudulently obtained. 29 U.S.C. 2618(e); 29 CFR 825.216(e)

Reinstatement of School Employees

TSBVI shall make the determination of how an employee is to be restored to “an equivalent position” upon return from FMLA leave on the basis of established school board policies and practices. The “established policies” must be in writing, must be made known to the employee before the taking of FMLA leave, and must clearly explain the employee’s restoration rights upon return from leave. Any established policy which is used as the basis for restoration of an employee to “an equivalent position” must provide substantially the same protections as provided in the FMLA. For example, an employee may not be restored to a position requiring additional li-censure or certification. 29 CFR 825.604

Pay Increases and Bonuses

An employee is entitled to any unconditional pay increases that may have occurred during the FMLA leave period, such as cost of living increases. Pay increases conditioned upon seniority, length of service, or work performed must be granted in accordance with TSBVI’s policy or practice with respect to other employees on an equivalent leave status for a reason that does not qualify as FMLA leave.

Equivalent pay includes any bonus or payment, whether it is discretionary or non-discretionary. However, if a bonus or other payment is based on the achievement of a specified goal such as hours worked, products sold, or perfect attendance, and the employee has not met the goal due to FMLA leave, then the payment may be denied, unless otherwise paid to employees on an equivalent leave status for a reason that does not qualify as FMLA leave. For example, if an employee who used paid vacation leave for a non-FMLA purpose would receive the payment, then an employee who used paid vacation leave for an FMLA-protected purpose also must receive the payment.

29 CFR 825.215(c)

Key Employees

TSBVI may deny job restoration to a key employee if such denial is necessary to prevent substantial and grievous economic injury to the operations of the district. 29 U.S.C. 2614(b); 29 CFR 825.217–.219

NOTICES AND MEDICAL CERTIFICATION

Employer Notices

General Notice

Every covered employer must post on its premises a notice explaining the FMLA’s provisions and providing information concerning the procedures for filing complaints with the Department of Labor’s Wage and Hour Division. The notice must be posted prominently where it can be readily seen by employees and applicants for employment. Covered employers must post this general notice even if no employees are eligible for FMLA leave.

If TSBVI has any eligible employees, it shall also:

  1. Include the notice in employee handbooks or other written guidance to employees concerning employee benefits or leave rights, if such written materials exist; or
  2. Distribute a copy of the general notice to each new employee upon hiring.

Electronic posting is sufficient if it meets the other requirements of this section.

If TSBVI’s workforce is comprised of a significant portion of workers who are not literate in English, the School shall provide the general notice in a language in which the employees are literate.

TSBVI may use Department of Labor (DOL) form WHD 1420 or may use another format so long as the information provided includes, at a minimum, all of the information contained in that notice.

29 CFR 825.300(a)

Eligibility Notice

When an employee requests FMLA leave, or when a TSBVI acquires knowledge that an employee’s leave may be for an FMLA qualifying reason, TSBVI must notify the employee of the employee’s eligibility to take FMLA leave. If the employee is not eligible for FMLA leave, the notice must state at least one reason why the employee is not eligible.

TSBVI must provide the eligibility notice within five business days, absent extenuating circumstances. Notification of eligibility may be oral or in writing. TSBVI may use DOL form WH-381 to provide such notification to employees. TSBVI shall translate the notice in any situation in which it is required to translate the general notice.

29 CFR 825.300(b)

Rights and Responsibilities Notice

Each time TSBVI provides an eligibility notice to an employee, TSBVI shall also provide a written rights and responsibilities notice. The rights and responsibilities notice must include the information required by the FMLA regulations at 29 CFR 825.300(c)(1).

TSBVI may use DOL form WH-381 to provide such notification to employees. TSBVI may adapt the prototype notice as appropriate to meet these notice requirements. The notice may be distributed electronically if it meets the other requirements of this section. TSBVI shall translate the notice in any situation in which it is required to translate the general notice.

29 CFR 825.300(c)

Designation Notice

When TSBVI has enough information to determine whether leave is being taken for an FMLA-qualifying reason, the School must notify the employee whether the leave will be designated as FMLA leave. If TSBVI determines that the leave will not be designated as FMLA-qualifying, TSBVI must notify the employee of that determination. Absent extenuating circumstances, TSBVI must provide the designation notice within five business days.

TSBVI may use DOL form WH-382 to provide such notification to employees. If the leave is not designated as FMLA leave because it does not meet the requirements of the Act, the notice to the employee that the leave is not designated as FMLA leave may be in the form of a simple written statement.

The designation notice must include the information required by the FMLA regulations at 29 CFR 825.300(d)(1) (substitution of paid leave), (d)(3) (fitness for duty certification), and (d)(6) (amount of leave charged against FMLA entitlement). For further provisions on designation of leave, see 29 CFR 825.301.

29 CFR 825.300(d)

Retroactive Designation

TSBVI may retroactively designate leave as FMLA leave, with appropriate notice to the employee, if the School’s failure to timely designate leave does not cause harm or injury to the employee. In addition, TSBVI and an employee may agree that leave will be retroactively designated as FMLA leave. 29 CFR 825.301(d)

Employee Notice

An employee giving notice of the need for FMLA leave must state a qualifying reason for the leave and otherwise satisfy the requirements for notice of foreseeable and unforeseeable leave, below. The employee does not need to expressly assert rights under the Act or even mention the FMLA. 29 CFR 825.301

Foreseeable Leave

An employee must provide at least 30 days’ advance notice before FMLA leave is to begin if the need for leave is foreseeable based upon an expected birth, placement for adoption or foster care, or planned medical treatment of the employee, a family member, or a covered service member. If 30 days’ notice is not practicable, the employee must give notice as soon as practicable. For leave due to a qualifying exigency, the employee must provide notice as soon as practicable regardless of how far in advance the leave is foreseeable.

When planning medical treatment, the employee must consult with TSBVI and make a reasonable effort to schedule the treatment so as not to disrupt unduly TSBVI’s operations, subject to the approval of the healthcare provider.

29 CFR 825.302

Unforeseeable Leave

When the approximate timing of leave is not foreseeable, an employee must provide notice to TSBVI as soon as practicable under the facts and circumstances of the particular case. It generally should be practicable for the employee to provide notice of leave that is unforeseeable within the time prescribed by TSBVI’s usual and customary notice requirements applicable to such leave. 29 CFR 825.303

Compliance with District Requirements

TSBVI may require an employee to comply with its usual and customary notice and procedural requirements for requesting leave, absent unusual circumstances. If an employee does not comply with usual notice and procedural requirements, and no unusual circumstances justify the failure to comply, FMLA leave may be delayed or denied. 29 CFR 825.302(d), .303(c)

Certification of Leave

TSBVI may require that an employee’s FMLA leave be supported by certification, as described below. TSBVI must give notice of a requirement for certification each time certification is required. At the time TSBVI requests certification, the School must advise the employee of the consequences of failure to provide adequate certification. 29 CFR 825.305(a)

Timing

In most cases, TSBVI should request certification at the time the employee gives notice of the need for leave or within five business days thereafter or, in the case of unforeseen leave, within five business days after the leave commences. TSBVI may request certification at a later date if TSBVI later has reason to question the appropriateness of the leave or its duration. The employee must provide the requested certification to TSBVI within 15 calendar days after the School’s request, unless it is not practicable under the particular circumstances to do so despite the employee’s diligent, good faith efforts. 29 CFR 825.305(b)

Incomplete or Insufficient Certification

TSBVI shall advise an employee if it finds a certification incomplete or insufficient and shall state in writing what additional information is necessary to make the certification complete and sufficient. TSBVI must provide the employee with seven calendar days (unless not practicable under the particular circumstances despite the employee’s diligent, good faith efforts) to cure any such deficiency.

A certification is “incomplete” if one or more of the applicable entries have not been completed. A certification is “insufficient” if it is complete, but the information provided is vague, ambiguous, or non-responsive. A certification that is not returned to TSBVI is not considered incomplete or insufficient, but constitutes a failure to provide certification.

29 CFR 825.305(c)

Medical Certification of Serious Health Condition

When leave is taken because of an employee’s own serious health condition, or the serious health condition of a family member, TSBVI may require the employee to obtain medical certification from a health-care provider. TSBVI may use DOL optional form WH-380-E when the employee needs leave due to the employee’s own serious health condition and optional form WH-380-F when the employee needs leave to care for a family member with a serious health condition. TSBVI may not require information beyond that specified in the FMLA regulations.

An employee may choose to comply with the certification requirement by providing TSBVI with an authorization, release, or waiver allowing the district to communicate directly with the health-care provider.

For the definition of “health-care provider,” see 29 CFR 825.125.

29 CFR 825.306

Genetic Information

TSBVI subject to the Genetic Information Nondiscrimination Act (GINA) shall comply with the GINA rules with respect to a request for medical information. 29 CFR 1635.8(b)(1)(i)(A) [See Policy DAB]

Authentication and Clarification

If an employee submits a complete and sufficient certification signed by the health-care provider, TSBVI may not request additional information from the health-care provider. However, TSBVI may contact the health-care provider for purposes of clarification and authentication of the certification after TSBVI has given the employee an opportunity to cure any deficiencies, as set forth above. To make such contact, TSBVI must use a health-care provider, a human resources professional, a leave administrator, or a management official. Under no circumstances may the employee’s direct supervisor contact the employee’s health-care provider.

“Authentication” means providing the health-care provider with a copy of the certification and requesting verification that the information on the form was completed and/or authorized by the health-care provider who signed the document; no additional medical information may be requested.

“Clarification” means contacting the health-care provider to under-stand the handwriting on the certification or to understand the meaning of a response. TSBVI may not ask the health-care provider for additional information beyond that required by the certification form. The requirements of the Health Insurance Portability and Accountability Act (HIPAA) Privacy Rule must be satisfied when individually identifiable health information of an employee is shared with TSBVI by a HIPAA-covered health-care provider.

29 CFR 825.307(a)

Second and Third Opinions

If TSBVI has reason to doubt the validity of a medical certification, the district may require the employee to obtain a second opinion at the district’s expense. If the opinions of the employee’s and the district’s designated health-care providers differ, the School may require the employee to obtain certification from a third health-care provider, again at TSBVI’s expense. 29 CFR 825.307(b), (c)

Foreign Medical Certification

If the employee or a family member is visiting another country, or a family member resides in another country, and a serious health condition develops, TSBVI shall accept medical certification as well as second and third opinions from a health-care provider who practices in that country. If the certification is in a language other than English, the employee must provide the School with a written translation of the certification upon request. 29 CFR 825.307(f)

Recertification

TSBVI may request recertification no more often than every 30 days and only in connection with an absence by the employee, except as set forth in the FMLA regulations. TSBVI must allow at least 15 calendar days for the employee to provide recertification.

As part of the recertification for leave taken because of a serious health condition, TSBVI may provide the health-care provider with a record of the employee’s absence pattern and ask the health-care provider if the serious health condition and need for leave is consistent with such a pattern.

29 CFR 825.308

Certification – Qualifying Exigency Leave

The first time an employee requests leave because of a qualifying exigency, TSBVI may require the employee to provide a copy of the military member’s active duty orders or other documentation issued by the military which indicates that the military member is on covered active duty or call to covered active duty status, and the dates of the covered military member’s covered active duty service.

TSBVI may also require that the leave be supported by a certification that addresses the information at 29 CFR 825.309(b). TSBVI may use DOL optional form WH-384, or another form containing the same basic information, for this certification. TSBVI may not require information beyond that specified in the regulations.

29 CFR 825.309

Certification – Military Caregiver Leave

When an employee takes military caregiver leave, TSBVI may require the employee to obtain a certification completed by an authorized health-care provider of the covered service member. In addition, TSBVI may request that the employee and/or covered service member address in the certification the information at 29 CFR 825.310(c). TSBVI may also require the employee to provide confirmation of a covered family relationship to the seriously injured or ill service member.

TSBVI may use DOL optional form WH-385, or another form containing the same basic information, for this certification. TSBVI may not require information beyond that specified in the regulations. TSBVI must accept as sufficient certification “invitational travel orders” (“ITOs”) or “invitational travel authorizations” (“ITAs”) issued to any family member to join an injured or ill service member at his or her bedside.

TSBVI may seek authentication and/or clarification of the certification under the procedures described above. Second and third opinions, and recertifications, are not permitted for leave to care for a covered service member.

29 CFR 825.310

Intent to Return to Work

TSBVI may require an employee on FMLA leave to report periodically on the employee’s status and intent to return to work. TSBVI’s policy regarding such reports may not be discriminatory and must take into account all of the relevant facts and circumstances related to the individual employee’s leave situation. 29 CFR 825.311

Fitness for Duty Certification

As a condition of restoring an employee who took FMLA leave due to the employee’s own serious health condition, a district may have a uniformly applied policy or practice that requires all similarly situated employees (i.e., same occupation, same serious health condition) who take leave for such conditions to obtain and present certification from the employee’s health-care provider that the employee is able to resume work. TSBVI may require that the certification specifically address the employee’s ability to perform the essential functions of the employee’s job. 29 CFR 825.312

Failure to Provide Certification

If the employee fails to provide TSBVI with a complete and sufficient certification, despite the opportunity to cure, or fails to provide any certification, TSBVI may deny the taking of FMLA leave. This provision applies in any case where a district requests a certification, including any clarifications necessary to determine if certifications are authentic and sufficient. 29 CFR 825.305

For failure to provide timely certification of foreseeable leave, see 29 CFR 825.313(a). For failure to provide timely certification of unforeseeable leave, see 29 CFR 825.313(b). For failure to provide timely recertification, see 29 CFR 825.313(c). For failure to provide timely fitness-for-duty certification, see 29 CFR 825.313(d).

MISCELLANEOUS PROVISIONS

Records

TSBVI shall make, keep, and preserve records pertaining to its obligations under the FMLA in accordance with the recordkeeping requirements of the Fair Labor Standards Act (FLSA) and the FMLA regulations. TSBVI shall keep these records for no less than three years and make them available for inspection, copying, and transcription by representatives of the DOL upon request.

If TSBVI is preserving records electronically, the district must comply with 29 CFR 825.500(b).

A district that has eligible employees must maintain records with the data set forth at 29 CFR 825.500(c). A district that has no eligible employees must maintain just the data at 29 CFR 825.500(c)(1). For districts in a joint employment situation, see 29 CFR 825.500(e).

Records and documents relating to certifications, recertifications, or medical histories of employees or employees’ family members, created for purposes of FMLA, shall be maintained as confidential medical records in separate files/records from the usual personnel files.

If the Genetic Information Nondiscrimination Act (GINA) is applicable, records and documents created for purposes of FMLA leave that contain family medical history or genetic information shall be maintained in accordance with the confidentiality requirements of GINA (see 29 CFR 1635.9), which permit such information to be disclosed consistent with the requirements of the FMLA. [For information regarding GINA, see Policy DAB.]

If the Americans with Disabilities Act (ADA) is also applicable, such records shall be maintained in conformance with ADA confidentiality requirements [see 29 CFR 1630.14(c)(1)], except as set forth in this section of the regulations.

29 CFR 825.500

Prohibition Against Discrimination and Retaliation

The FMLA prohibits interference with an employee’s rights under the law, and with legal proceedings or inquiries relating to an employee’s rights. 29 U.S.C. 2615; 29 CFR 825.220

Adopted:         8/6/21

Amended:

Reviewed: