Fact Sheet #28S: Rules for Certain School Employees under the Family and Medical Leave Act

The Family and Medical Leave Act (FMLA) provides job-protected leave from work for family and medical reasons.

This fact sheet explains rules for using FMLA leave that apply to certain employees of public and private elementary and secondary schools and public school boards.

ABOUT THE FMLA

The FMLA provides eligible employees of covered employers with job-protected leave for qualifying family and medical reasons and requires continuation of their group health benefits under the same conditions as if they had not taken leave. FMLA leave may be unpaid or used at the same time as employer-provided paid leave. Employees must be restored to the same or virtually identical position when they return to work after FMLA leave.

Eligible employees: Employees are eligible if they:

• Work for a covered employer for at least 12 months,
• Have at least 1,250 hours of service with the employer during the 12 months before their FMLA leave starts, and
• Work at a location where the employer has at least 50 employees within 75 miles.

Covered employers: Covered employers under the FMLA include:

• Private-sector employers who employ 50 or more employees in 20 or more workweeks in either the current calendar year or previous calendar year,
• Public agencies, including Federal, State, and local government employers, regardless of the number of employees, and
• Local educational agencies, including public school boards, public elementary and secondary schools, and private elementary and secondary schools, regardless of the number of employees.

The FMLA protects leave for:

• The birth of a child or placement of a child with the employee for adoption or foster care,
• The care for a child, spouse, or parent who has a serious health condition,
• A serious health condition that makes the employee unable to work, and
• Reasons related to a family member’s service in the military, including:
  • Qualifying exigency leave – leave for certain reasons related to a family member’s foreign deployment, and
  • Military caregiver leave – leave when a family member is a current servicemember or recent veteran with a serious injury or illness.

For more information about the FMLA generally, see Fact Sheet #28.

WHEN THE FMLA RULES FOR SCHOOLS APPLY

Eligible employees of public school boards and public and private elementary and secondary schools are generally entitled to the FMLA’s protections. However, specific rules apply to:

• Instructional employees of public school boards and public or private elementary and secondary schools when they use intermittent or reduced schedule FMLA leave,
• Instructional employees of public school boards and public or private elementary and secondary schools when they use FMLA leave near the end of an academic term, and
• All employees of public school boards and public or private elementary and secondary schools when they are returning to work after FMLA leave.

These rules do not apply to other kinds of educational institutions, such as colleges, universities, trade schools, or preschools. All other FMLA requirements apply to employees of public school boards and public and private elementary and secondary schools in the same manner as they apply to employees in other professions and industries.

Instructional employees. For purposes of the FMLA, instructional employees are employees whose main job is to teach and instruct students in a class, a small group, or an individual setting. This includes classroom teachers as well as athletic coaches, driving instructors, and special education assistants, e.g., American Sign Language (ASL) interpreters for individuals who are deaf or hard of hearing.

Teacher assistants or aides who do not have as their main job actual teaching or instructing are not instructional employees. Counselors, psychologists, curriculum specialists, cafeteria workers, maintenance workers, and bus drivers also are not instructional employees under the FMLA.

INTERMITTENT OR REDUCED SCHEDULE LEAVE RULES

In general, employees have the right to take FMLA leave all at once, or, when medically necessary, in separate blocks of time or by reducing the time they work each day or week. Intermittent or reduced schedule leave is also available for military family leave reasons. However, employees may use FMLA leave intermittently or on a reduced leave schedule for bonding with a newborn or newly placed child only if they and their employer agree.

If an employee needs intermittent or reduced schedule FMLA leave that is foreseeable based on planned medical treatment or based on an agreement between the employee and the employer for the birth or placement of a child, the employer may temporarily transfer the employee to a different job for which the employee is qualified that better accommodates their need for the recurring leave. During the temporary reassignment, the employee must receive at least the same pay and benefits they were receiving before the temporary transfer, even if the job duties change. When the employee no longer needs the recurring leave for planned medical treatments or for the birth or placement of a child, the employee must be able to return to the job they held before the temporary transfer, or to a job that is virtually identical to that job. An employer may not transfer the employee to an alternative position to discourage the employee from taking leave or cause the employee a hardship.

Intermittent or reduced schedule leave option for instructional employees. When an instructional employee uses intermittent or reduced schedule FMLA leave that is:

• Foreseeable based on planned medical treatment and
• Needed for more than 20% of their working days during the period they need leave, the employer can grant the intermittent leave request or provide the employee with a choice between transferring to an alternative position or taking FMLA leave “for a particular duration,” i.e., for a set amount of time. It is up to the employee to choose which option they prefer when the employer applies this rule.

For example, if a teacher at a local secondary school needs leave every afternoon for three weeks while their covered servicemember spouse undergoes and recovers from planned medical treatment for a serious illness, the school may grant the intermittent leave request allowing the employee to stay in their same position, work in the mornings, and use leave in the afternoons. Or, the employer may offer the teacher a choice between three weeks of leave in which the employee does not go to work at all and uses a full three weeks of FMLA leave (leave for a particular duration) or a three-week transfer to an alternative position in which the employee may work in the mornings and use leave in the afternoons.

Table: Comparing Intermittent Leave Choices – Leave of a Particular Duration or Temporary Transfer

Taking Leave of a Particular Duration

Temporary Transfer to an Alternative Position

Example: Anne is a high school swim team coach who works three days a week. She needs to receive treatment for a serious health condition, and her health care provider is only available on the days she is scheduled to work. She requests one day of FMLA leave per week for four weeks, which is more than 20 percent of the total number of days Anne would work during her requested period of FMLA leave. In response to her FMLA leave request, Anne’s school district asks her to either use leave three days a week for the four weeks she needs leave (using leave for a “particular duration”) or accept a temporary reassignment coaching middle school swimmers who are training at the high school two days a week. Anne declines the temporary reassignment and uses FMLA leave three days a week (her full workweek) for four weeks for her own serious health condition. The entire period of leave taken will count as FMLA leave.

Example: Paul is a third-grade teacher at a local elementary school who requests FMLA leave to provide care for his father who has a qualifying serious health condition. Paul, who normally works five days a week, requests FMLA leave on Tuesdays and Thursdays for the next six weeks, which is more than 20 percent of the days he would work in the six-week period for which he needs leave. In response to his FMLA leave request, Paul’s school district gives him a choice of taking leave five days a week during the six-week period that he needs to care for his father (using leave for a “particular duration”) or transferring to a position tutoring elementary students. Paul chooses the alternative position for the six weeks he needs FMLA leave. He is qualified for the job, and his pay and benefits stay the same. He uses FMLA leave two days a week for six weeks for the care of his father and is restored to his third-grade teaching position at the end of the six weeks.

Breaks between semesters. When any school employee uses leave for a period that ends with the school year and begins the next semester, the employee is using leave consecutively. The leave is not intermittent. The period during summer vacation when the employee would not have been required to report for duty is not leave from work and is not counted against the employee’s FMLA leave entitlement. The employee must be provided with their benefits over the summer break that they would normally receive if they had been working at the end of the school year.

Example:

• Liam is a second-grade teacher who begins FMLA leave for the birth of his son in May the week before summer break. The period that the school is closed does not count as FMLA leave and Liam continues to use FMLA leave when the new school year begins in August.

LEAVE NEAR THE END OF AN ACADEMIC TERM FOR INSTRUCTIONAL EMPLOYEES

Instructional employees who begin FMLA leave near the end of an academic term may, in the circumstances described below, be placed by their employer on leave that extends beyond their requested time off to the end of the school term. “Academic term” means the school semester, which typically ends near the end of the calendar year and the end of spring each school year. A school may not have more than two academic terms each year for purposes of the FMLA.

If an employee is required to continue leave until the end of an academic term under the employer’s application of this rule, the extended leave period does not count against the number of weeks the employee has available to use FMLA leave, and the employer may not count the employee’s time off against them for attendance or other purposes. Additionally, the employee has the right to continued group health insurance during the leave extension. The employee also has the right to be restored to the same or equivalent job, including equivalent benefits, at the end of the leave extension.

When instructional employees use FMLA leave near the end of an academic term, different variations of the requirement to extend FMLA leave protection apply depending on when the leave begins:

• If leave begins more than five weeks before the end of a term. An instructional employee’s leave may be extended to the end of the term when their leave begins more than five weeks before the end of the term only if the leave will last at least three weeks, and the employee would return to work during the three-week period before the end of the term.
• If leave begins during the five-week period before the end of a term. An instructional employee’s leave may be extended to the end of the term when their leave begins during the five-week period before the end of the term, only if the leave is for the birth or placement of a child or the care of a family member or covered servicemember and will last more than two weeks, and the employee would return to work during the two-week period before the end of the term.
• If leave begins during the three-week period before the end of a term. An instructional employee’s leave may be extended to the end of their term when their leave begins during the three-week period before the end of a term, only if the leave is for the birth or placement of a child or the care of a family member or covered servicemember, and the leave will last more than five working days.

Example:

• Maia, a world history teacher and tennis coach, takes FMLA leave to care for her son after an emergency surgery that occurs 2 1/2 weeks before the end of the academic term. She will need 7 working days of leave to assist with his recovery and rehabilitation therapies. Maia’s employer notifies her that she will be required to extend her leave through the end of the academic term. Maia uses 7 days of FMLA leave. The additional days that her employer requires her to take do not count against her FMLA leave entitlement. Maia has the right to maintain her health benefits during the entire absence and to return her same or equivalent job after her absence.

If an applicable State law prohibits the employer from requiring leave beyond the actual period of pregnancy disability, an instructional employee may not be required to remain on leave until the end of the academic term.

Chart: When Special Rules for FMLA leave near the end of an academic term apply.

STEP	LEAVE REASON	START DATE	DURATION	RETURN TO WORK
1	Any FMLA-qualifying reason	Begins with more than 5 weeks of the term remaining, and	Lasts at least 3 weeks, and	The employee would return to work in the 3-week period before the end of the term.
2	Birth/placement of a child, care of a spouse, child, or parent with a serious health condition, or care of a covered servicemember, and,	Begins during the final 5 weeks before the term ends, and	Lasts more than 2 weeks, and	The employee would return to work in the 2-week period before the end of the term.
3	Birth/placement of a child, care of a spouse, child, or parent with a serious health condition, or care of a covered servicemember, and,	Begins during the final 3 weeks of the term, and	Lasts more than 5 working days.	The employee would return to work at some point before the end of the term.

JOB RESTORATION FOR ALL EMPLOYEES OF PUBLIC SCHOOL BOARDS AND PUBLIC AND PRIVATE ELEMENTARY SCHOOLS

In general, upon return from FMLA leave an employee must be restored to their original job or to an equivalent job with equivalent pay, benefits, and other terms and conditions of employment. For more information, see Fact Sheet #28A.

For an employee of a public school board or public or private elementary or secondary school, the determination of whether the employee is restored to their original job or to an equivalent job may be based on school board or private school policies and practices, and collective bargaining agreements.

For public school board policies and practices, private school policies and practices, or collective bargaining agreements to apply, they must:

• Be in writing,
• Be made known to the employee prior to the taking of FMLA leave,
• Clearly explain the employee's restoration rights upon return from leave, and
• Provide substantially the same protections as other reinstated employees receive under the FMLA—including restoring the employee to an equivalent position with equivalent employment benefits, pay, and other terms and conditions of employment.

Under any applicable policy or agreement, the employee must be restored to the same or an equivalent position. For example, an employee may not be required to obtain additional licensure or certification for placement in an otherwise equivalent position.

ADDITIONAL PROTECTIONS

State Laws

Some States have their own family and medical leave laws. Nothing in the FMLA prevents employees from receiving protections under other laws. Workers have the right to benefit from all the laws that apply.

Protection from Retaliation

The FMLA is a federal worker protection law. Employers are prohibited from interfering with, restraining, or denying the exercise of, or the attempt to exercise, any FMLA right. Any violations of the FMLA or the FMLA regulations constitute interfering with, restraining, or denying the exercise of rights provided by the FMLA. For more information about prohibited employer retaliation under the FMLA, see Fact Sheet #77B and Field Assistance Bulletin 2022-2.

Enforcement

The Wage and Hour Division is responsible for administering and enforcing the FMLA for most employees. If you believe that your rights under the FMLA have been violated, you may file a complaint with the Wage and Hour Division or file a private lawsuit against your employer in court. State employees may be subject to certain limitations in pursuit of direct lawsuits regarding leave for their own serious health conditions. Most Federal and certain congressional employees are also covered by the law but are subject to the jurisdiction of the U.S. Office of Personnel Management or Congress.