5006 – Employee Leave 1.0 Military Leave

1.1. All Upshur County Board of Education employees who are members of the national

guard or armed forces reserves, shall be entitled to a military leave of absence from the Board without loss of pay, status or efficiency rating, on the days during which they are ordered, by properly designated authority, to be engaged in drill, inactive duty training, parades, funeral details, service schools or other duty, during business hours, field training, annual training or other full-time national guard or armed forces reserves, pursuant to Federal law, or active service of the state for a maximum period of thirty (30) working days, not to exceed two-hundred forty hours in any one calendar year.

1.2. All Upshur County Board of Education employees who are ordered or called to active

duty for a mobilization or deployment pursuant to Federal law or in support of a contingency operation, as defined by Federal law, shall be entitled to military leave of absence from the Board without loss of pay, status or efficiency rating for a maximum period of thirty (30) working days, not to exceed 240 hours for a single call to active duty. If the employee called to active duty has not used all or some portion of the thirty (30) working days of military leave of absence granted by the first paragraph of this policy, the employee shall be entitled to add the number of unused days from that calendar year to the thirty (30) working days, not to exceed 240 hours granted by this paragraph, up to a maximum of sixty (60) days for a single call to active duty. However, none of the unused days of military leave of absence granted by the first paragraph may be carried over and used in the next calendar year.

1.3. The term "without loss of pay" means that the employee shall continue to receive his/her

normal salary or compensation, notwithstanding the fact that such employee may have received other compensation from Federal or State sources during the same period.

1.4. An employee who has been granted a military leave of absence shall accrue seniority

during the period of time that the employee is on the approved leave of absence. 2.0 Leave of Absence

2.1 The Superintendent may submit to the Board of Education recommendations for leaves of absence for personnel possessing continuing contract status. Leaves of absence are granted at the discretion of the Board of Education and are for the purpose of continuing education, pregnancy, childbirth, adoption, infant bonding, family care, personnel illness, military leave and other provisions referenced in West Virginia Code and Federal law. Personnel requesting a leave of absence must make written application to the Superintendent which shall outline in detail the purpose and nature of the requested leave.

2.2 An employee shall notify the board at least ten working days prior to beginning a leave of

absence. The board shall approve a leave of absence for any teacher or service personnel who request an extended leave of absence without pay for any period of time not exceeding one year. The employee shall not be required to use accumulated leave or sick leave prior to taking an extended leave of absence. Such leaves of absence shall be without pay and such leaves shall not extend for more than one year unless an extension is

recommended and approved by the Board of Education. All Upshur County Board of Education employees will be restored to the same assignment and position held prior to the leave if the leave of absence does not exceed one year.

2.3 An approved leave of absence does not break an employee’s seniority and the seniority

does not cease to accumulate during an authorized leave of absence whether without pay or due to illness or other reason over which the employee has no control.

2.4 Any employee who is on an approved medical leave of absence is entitled to continue his

or her insurance coverage until he or she returns to his or her employment, and the employee and employer shall continue to pay their proportionate share of premium costs. The employer is obligated to pay its proportionate share of the premium cost only for a period of one year. During the period of the leave of absence, the employee shall, at least once each month, submit to the employer the statement of a qualified physician certifying that the employee is unable to return to work.

2.5 Any employee on an approved leave of absence shall not serve as a substitute in any

capacity and shall not use a leave of absence for other employment.

3.0 Personal Leave 3.1 The term “personal leave” is used to denote days taken for illness and of these days, three

may be taken without cause as noted in State Code §18A-4-10 and county policy.

3.2 Employees earn one and one-half days of personal leave for each employment month or major fraction thereof, which accumulates ad infinitum in accordance with §18A-4-10. This section of the Code allows for the transfer of two days of personal leave per year from one employee to another.

3.3 In addition to personal accident or illness, personal leave benefits may cover death in the

immediate family to the extent of five successive work days in each case of death taken at the time of death or interment. Immediate family includes husband, wife, father, mother, brother, sister, son, daughter, stepparents, stepchildren, and parents-in-law. Personal leave benefits may cover death of other relatives to the extent of three days allowed in each case of death. Other relatives include brother-in-law, sister-in-law, daughter-in-law, son-in-law, aunt, uncle, niece, nephew, grandparent, or grandchild, and those same relatives of a spouse. Such absences are to be reported in the normal, prescribed manner.

3.4 Medical doctor’s appointment for an employee will be considered as sick leave.

3.5 Personal leave may not be used in connection with a concerted work stoppage or strike.

3.6 Any employee absent from duty because of illness or accident for more than three

consecutive working days will be required to submit a doctor’s statement giving the nature of the illness or accident and certifying that the employee was unable to perform the duties of his/her job on the dates he/she was absent. Such doctor’s statement will be sent to the county office. A regular, full-time school employee may take personal leave for a life-threatening illness or accident of his or her spouse, parents, child, parents-in-law, brother, or sister without having to use any of the remaining personal days that may be taken without cause. In order to qualify for such leaves, the illness or accident must be

life threatening. Examples of life-threatening conditions would be, but not limited to, heart attack, severe breathing problems, cancer surgery, etc., or any condition verified by the attending physician as life threatening. Emergency sick leave may be granted for the birth of a grandchild for a period not to exceed two days. Emergency sick leave will not be granted for staying home with a sick child, a grandchild, routine or follow-up doctor’s visits, broken bones, etc., unless the examining physician indicates a serious medical risk.

3.7 All accumulated sick leave/personal leave is lost upon an employee’s separation from employment; however, the employee may regain accumulated sick leave/personal leave upon re-employment.

4.0 Sick Leave Bank

4.1 The purpose of the Sick Leave Bank is to provide Upshur County School employees relief

from undue hardship due to absence from work on a long term basis because of personal illness, injury or incapacitation sufficiently severe that they could not perform their job duties. The Sick Leave Bank is not intended to be used for cases of elective surgery, normal maternity leave, or minor illness.

4.2 The rules and regulations of the Sick Leave Bank will be administered by a Sick Leave Bank Committee. The committee will also determine who would qualify to receive days from the Sick Leave Bank.

4.2.1 The committee consists of the following:

4.2.1.1 The president or designee from the Upshur County Professional Educators. 4.2.1.2 The president or designee from the Upshur County Education Association. 4.2.1.3 The president or designee from the Upshur County School Service Personnel

Association. 4.2.1.4 The president or designee from the Upshur County Principals Association. 4.2.1.5 A representative from the Central Office administration – Chairman. 4.2.1.6 A representative from the Central Office service personnel – Secretary.

4.2.2 SICK LEAVE BANK POLICY - RULES & REGULATIONS

4.2.2.1 All Upshur County Board of Education employees who earn personal leave (sick leave and leave without cause) are eligible to participate in the Sick Leave Bank.

4.2.2.2 To become a member each person must voluntarily contribute two personal leave days to the Bank. Once these days are contributed, the employee relinquishes all claims to said days. For continued eligibility, the member must agree to contribute an additional day to the Bank when the committee determines an additional assessment is necessary.

4.2.2.3 The Bank shall be used only by the individual employee contributor for his/her personal illness.

4.2.2.4 The Bank shall not be used for illnesses of other members of the employee’s family or used by the employee to remain away from his/her position to care for a member of his/her family.

4.2.2.5 The Bank may not be used by employee contributors disabled by an injury covered by Workers Compensation.

4.2.2.6 To be eligible to use /receive days from the Bank employees must contribute to the Bank. No personal illness days will be allotted from the

Bank until an employee has zero (0) sick leave days (including vacation days) and has been absent from work a minimum of three consecutive non-paid days. In order to receive days from the bank, an employee (or designee) must apply to the bank within thirty days of eligibility.

4.2.2.7 Employee enrollment and participation in the Bank shall be made annually between July 1, and September 15. The opportunity to participate in the Bank shall be available to all employees each year within the specified dates.

4.2.2.8 Upon the termination from employment or the voluntary withdrawal from the Bank, the employee shall not be permitted to withdraw donated days from the Bank. All days donated to the Bank will remain the property of the Sick Leave Bank.

4.2.2.9 Personal illness days withdrawn from the Bank do not have to be repaid by the individual using them.

4.2.2.10 Contributions to the Sick Leave Bank must be made on an Upshur County Board of Education Employee Contribution Form by the individual member.

4.2.2.11 An employee requesting a donation of sick leave days from the Bank shall be required to submit a Sick Leave Bank Physician’s Statement form describing the illness with a prognosis for a date to return to work.

4.2.2.12 Sick day grants from the Bank, as approved by the committee, shall be made in increments of no more than thirty (30) consecutive days for individual applicants. The employee may submit a request for an additional thirty (30) days of sick leave, by submitting another request from his/her physician.

4.2.2.13 Sick Leave Bank days will not be granted when the employee becomes eligible for benefits from the Upshur County Schools long term disability plan.

4.3 WV Code §18A-4-10 requires county boards to establish a personal leave bank for

employees, and requires the use of leave bank days to be limited to an active employee with fewer than five days of accumulated personal leave who is absent from work due to an accident or illness; prohibits the use of leave bank days to qualify for or add to service for any retirement system administered by the state; requires that each personal leave day contributed be credited to the receiving employee as one full personal leave day without adjustment being made based on the hourly wage of each employee; restricts the use of contributed leave days to the purpose for which the leave was transferred; and requires that any contributed days remaining after the medical emergency ends revert back to the leave bank.

5.0 Leave Donation Program 5.1 The purpose of the Leave Donation Program is to allow Upshur County Board of

Education employees, who have accumulated personal leave (sick leave and leave without cause) days, to donate those days to another employee who has experienced a “Catastrophic medical emergency” or physical condition that: Incapacitates an employee or an immediate family member for whom the employee will provide care; Is likely to require the prolonged absence of the employee from duty; and, will result in a substantial loss of income to the employee.

5.2 West Virginia Code 18A-4-10f states in part that ….. Generally speaking, a leave donation program is one that allows an employee to transfer accrued personal leave to the personal leave account of another employee who has exhausted all accrued personal leave, is not eligible to receive leave (or any more leave) from the personal leave bank, and requires additional personal leave because of a medical or physical condition that incapacitates the employee or an immediate family member for whom the employee will provide care. The county board may not limit the number of days that one employee may transfer to another employee who is his or her spouse, nor may it limit the total number of personal leave days an employee receives under the program. However, the board is allowed to limit the number of days a donor employee transfers to an employee who is not his or her spouse. Employees may contribute up to two (2) days per fiscal year for the Leave Donation Program. Donated days shall only be counted as full days and may not be divided into half days. All donations must be voluntary, with the donor selecting the recipient. Each donated day must be credited to the receiving employee as one full personal leave day, and must be used only for an absence due to the reason for which the leave was transferred. Transferred days remaining when the catastrophic medical emergency ends revert back to the donor.

5.3 The employee donating personal leave days must complete the Personal Leave Donation

form to donate days to another employee and have the form approved by the Assistant Superintendent.

6.0 Absence of a Principal or Assistant Principal

6.1 In case of the absence from the school of the principal or assistant principal for a period of

five (5) consecutive days or less, when his/her duties can be absorbed by other personnel and/or the calling of a substitute teacher, it will not be necessary to appoint an acting principal or assistant principal.

6.2 In a case where it is necessary for the principal or assistant principal to be absent for more than five (5) consecutive days, the superintendent may designate one of the teachers or a substitute as acting principal during the absence. The acting principal shall be paid the salary due if he/she were actually holding the position. If one of the teachers is appointed acting principal, a substitute teacher shall fill the vacancy caused. When principals are unable to be at school because of illness, they should inform the superintendent’s office each day that they are absent. When a principal or assistant principal finds it necessary to be absent from the school, he/she shall notify the superintendent’s office of the nature of the cause of and dates of the absence.

7.0 Professional Leave

7.1 Professional leave may be granted for specialized training, educational conferences,

conventions, serving as mentors, etc., when these are scheduled on school time if the services of a substitute are not required or if designated funding such as Title I, Title II, or Step 7 is available to pay for the services of a substitute and a substitute is available. In rare instances, the superintendent may grant professional leave with the substitute to be paid from county funds when special circumstances exist such as individuals receiving recognition or making presentations at state or regional meetings.

7.2 Professional leave requests shall be submitted to the Central Office a minimum of ten (10) work days prior to the scheduled event. Exceptions will be made only in those instances where the employee receives untimely/short notice from the West Virginia Department of Education, RESA 7, Upshur County Schools or other educational entities providing and/or coordinating professional development activities.

7.3 Employees are responsible for submitting approved professional leave forms along with

detailed receipts for meals, mileage and lodging along with the Out-of-County Travel Forms.

7.4 Service personnel attending educational conventions, conferences, or school service

meetings of service personnel on school days may be absent from their assigned duties in accordance with §18A-5-4a.

8.0 Family and Medical Leave Act of 1993 (29 U.S.C. §2601, et seq)

8.1 Purpose – To provide eligible employees of covered employers up to a total of 12 weeks of

unpaid leave during any 12-month period: 8.1.1 For the birth or adoption of a child. 8.1.2 For the care of a son or daughter, spouse or parent with a serious health condition. 8.1.3 For the employee’s own serious health condition that renders them unable to

perform the functions of their employment. 8.1.4 Because of a “qualifying exigency” arising out of the fact that an employee's spouse,

son, daughter, or parent is a covered military member on active duty or has been notified of an impending call or order to active duty status in the National Guard or Reserves in support of contingency operation.

8.1.5 "Injured Service Member" Military Family Leave. In addition to the basic types of FMLA leave discussed above, an eligible employee who is the parent, child, spouse or next of kin (nearest blood relative other than the service member's parent, spouse or child) of a "covered service member" is entitled to take up to 26 weeks of leave during a single 12-month period to care for the service member with a serious injury or illness. Leave to care for a covered service member shall only be available during a single 12-month period and, when combined with other FMLA-qualifying leave, may not exceed 26 weeks during the single 12-month period. The single 12-month period begins on the first day an eligible employee takes leave to care for the covered service member

8.2 The Family and Medical Leave Act (FMLA) also requires an employer to maintain any pre-existing health benefits during the leave period, and to reinstate the employee to the employee’s job or to an equivalent position following return from leave.

8.3 For purposes of this policy, a "serious health condition" is an illness, injury, impairment or physical or mental condition that involves either an overnight stay in a medical care facility, or continuing treatment by a health care provider for a condition that either (1) prevents the employee from performing the functions of the employee’s job, or (2) prevents family members from participating in school or other daily activities. Subject to certain conditions, the continuing treatment requirement may be met by a period of incapacity of more than three consecutive calendar days, combined with at least two visits to a health care provider or one visit and a regimen of continuing treatment, or incapacity

due to pregnancy, or incapacity due to a chronic condition. Other conditions may also meet the definition of continuing treatment.

8.4 For purposes of this policy, a "qualifying exigency" arises out of the fact that an

employee’s spouse, parent, or child is on active duty, or has been notified of an impending call or order to active duty in the Armed Forces in support of a contingency operation as a member of the National Guard or Reserves. A "qualifying exigency" may include attending certain military events, arranging for alternative childcare, addressing certain financial and legal arrangements, attending certain counseling sessions, attending post-deployment reintegration briefings, and other activities associated with the family member’s call or order to service. An employee whose spouse, parent, or child is a member of the Regular Armed Forces is not eligible for FMLA leave based upon a "qualifying exigency."

8.5 Guidance

8.5.1 Covered Employers -Both public and private employers engaged in interstate

commerce that employs 50 or more employees, for each working day during each of 20 or more calendar work weeks in the current or preceding calendar year.

8.5.2 Eligible Employees – In order to be an eligible employee under the FMLA, an employee or a covered employer must meet all of the following criteria:

8.5.2.1 Have been employed by the employer for at least 12 months. 8.5.2.2 Have worked for at least 1250 hours during the previous 12-month

period. 8.5.2.3 Have been employed at a worksite where the employer employs at least

50 employees within a 75-mile radius. 8.5.3 Excluded Employees – Employees at any “worksites” at which the employer

employs less than 50 employees if the total number of employees employed by that employer within 75 miles of that worksite is less than 50.

In addition, employers may deny reinstatement rights to highly compensated

employees (the highest paid 10%) at worksites where the employer can show that such denial is necessary to prevent substantial and grievous economic injury to the operations of the company. The employer must notify the employee of the intent to deny reinstatement so that the employee can return immediately after such notification.

8.5.4 Maternity and Adoption Leave – This time of leave may not be taken

intermittently or on a part-time leave basis unless the employee and the employer agree. The right to this type of leave expires 12 months after the date of birth or the placement of the child. Thirty-day notice of the intention to take leave is expected, and spouses employed by the same employer cannot double up and each take 12 weeks for a total of 24.

8.5.5 Medical leave – Care for “serious health condition” (defined as involving inpatient

care or continuing treatment by a health care provider) may be taken intermittently or on a reduced leave schedule if the employee complies with his duties to minimize the disruption to the employer’s operation and provides, “in a

timely manner,” a medical certification that such leave is a medical necessity. Faced with a request for intermittent leave or leave on a reduced leave schedule for planned medical treatment, an employer may require the employee to transfer temporarily to another equivalent position that will better accommodate the employee’s recurring periods of leave.

Notice: An employee is required to give the employer 30 days’ notice of intended

leave, except if the date of the treatment requires that the leave begin in less than 30 days. In any event, the FMLA encourages employees to give as much notice as possible. An employer may also require certification from a health care provider to verify that leave is justified under the FMLA and have the right to require an employee on leave to report periodically about the employee’s status and the intention to return to work.

8.5.6 Twelve Work Weeks Total – An employer is not required to add the 12 unpaid

work weeks to paid leave already provided by the employer. In other words, an employer may require its employees to first use any of the employee’s accrued paid leave (such as vacation, personal leave, etc.) for any part of the total 12-week period authorized by the FMLA. If such paid leave is used, the employer must then provide only the unpaid balance. If spouses are employed at the same location, they are limited to a combined total of 12 weeks.

8.5.7 Spouse – If both an employee and his/her spouse work for Upshur County

Schools, the employee and spouse may be limited to a combined 12 weeks (or a combined 26 weeks to care for an injured or ill service member).

8.5.8 Intermittent Leave and Reduced Leave Schedule – FMLA leave usually will be

taken for a period of consecutive days, weeks, or months. However, under certain circumstances, an employee may take FMLA leave intermittently or on a reduce leave schedule when medically necessary due to a serious health condition of the employee or covered family member or the serious injury or illness of a covered service member. Intermittent leave is taken in separate blocks of time due to a single qualifying reason. A reduced leave schedule is a change in the employee’s schedule for a period of time, normally from full-time to part-time.

8.5.9 If an employee needs leave intermittently or on a reduced leave schedule for a

planned medical treatment, then the employee must make a reasonable effort to schedule the treatment so as not to unduly disrupt Upshur County Schools’ operations. When calling off from work for a FMLA related absence or tardy, employees are expected to follow Upshur County Schools’ reporting procedures.

8.5.10 If an employee needs intermittent leave or leave on a reduced leave schedule that

is foreseeable based on planned medical treatment for the employee, a family member, or a covered service member (including during the period of recovery), Upshur County Schools may transfer the employee to an alternative position for which the employee is qualified and which better accommodates the recurring periods of leave than does the employee’s regular position. Following the conclusion of the intermittent leave or reduced leave schedule, employees will be moved back to the same or equivalent job.

Note that leave taken for a period that ends with the school year and begins with the next semester is considered consecutive rather than intermittent leave. The time during which the employee would otherwise not be required to return to work is not counted against the employees total leave requirement.

8.5.11 [NOTE THAT THE FOLLOWING BOLD-TYPE LANGUAGE APPLIES ONLY TO

INSTRUCTIONAL EMPLOYEES. “Instructional employees are those whose principal function is to teach and instruct students in a class, a small group, or an individual setting. The term includes teachers, athletic coaches, driving instructors, and special education assistants, but does not include teacher assistants, aides, or counselors. If you have any question about whether you are an “instructional” employee, please contact your immediate supervisor.]

8.5.12 *** Leave that Exceeds 20 percent of Working Days -- If an employee needs to take intermittent leave, and the leave will foreseeably require the employee to miss more than twenty (20%) percent of the total number of working days over the period of anticipated leave, Upshur County Schools may require the employee to elect either:

8.5.12.1 To take leave for a period, or periods, of particular duration, not

greater than the duration of the planned treatment. 8.5.12.2 To temporarily transfer to an available alternative position offered by

the Superintendent for which the employee is qualified, and that had equivalent pay and benefits, and that better accommodates the recurring period of leave than does the employee’s regular position.

8.5.13 Employees must give timely notice of foreseeable leave. If the employee fails to timely give notice of foreseeable leave, then Upshur County Schools has the right to choose which, if any, of the above discussed options the employee must take.

8.5.14 Benefits – While an employer is not required to continue an employee’s pay during FMLA leaves, an employer is required to continue the employee’s coverage under any group health plan of the employer. Finally, the FMLA states that the FMLA itself does not require the accrual of seniority or employment benefits during the leave. Therefore, accrual rights will be controlled by collective bargaining agreements or other policies or practices of the employer.

8.5.15 Restoration to Position – An eligible employee who takes FMLA leave shall be

entitled, upon return from such leave, to be restored to:

8.5.15.1 The same position occupied before the leave began with all benefits applicable.

8.5.15.2 An “equivalent position” with equivalent pay, benefits, and other applicable conditions of employment.

8.5.16 Failure to Return to Work – If the employee does not return to work after the leave period, the employer has the right to recover any premiums it paid to maintain the employee’s coverage unless the employee’s failure to return is because of the continuation, recurrence, or the onset of a serious health condition

of the employee, spouse, parent, or child, which would entitle the employee to FMLA leave; or because of other circumstances beyond the control of the employee. While the FMLA itself provides that an employer may deduct the amount due from any sums owed to the employee (i.e., vacation pay, salary, profit sharing, etc.), West Virginia Law specifically prohibits any such deduction without the employee’s express written consent (WV Code §21-5-3).

8.5.17 No Moonlighting While on Leave – Taking or working at another job during FMLA leave or any other authorized leave of absence is grounds for disciplinary action, up to and including discharge, to the extent permitted by law.

8.5.18 Misrepresentation of Facts to Take Leave – Employees who misrepresent facts in order to take FMLA leave will be subject to discipline, up to and including termination.

8.5.19 Procedures for Requesting Leave – Employees who take FMLA leave must timely

notify in writing Upshur County Schools of their need for FMLA leave. 8.5.20 Timing of Employee Notice – Employees must provide 30 days advance notice of

the need to take FMLA if the need for leave is foreseeable. When scheduling planned medical treatment, the employee must consult with Upshur County Schools and must make reasonable efforts to schedule the treatment so as not to disrupt unduly Upshur County Schools’ operations, subject to the health care provider’s approval.

8.5.21 When the need for leave is not foreseeable, employees must provide notice as

soon as practicable and must generally comply with Upshur County Schools’ normal reporting procedures. The employee must also explain the inability to provide the notice within 30 days of the leave.

8.5.22 Content of Employee Notice – To trigger FMLA protections, employees must

inform their supervisor or the Administrator of the need for FMLA-qualifying leave and the anticipated timing and duration of the leave, if known. Employees may do so by specifically referring to FMLA leave or explaining the reasons for leave so as to allow Upshur County Schools to determine that the leave is FMLA-qualifying. For example, an employee might explain that:

8.5.22.1 A medical condition renders the employee unable to perform the

functions of his or her job. 8.5.22.2 She is pregnant. 8.5.22.3 He or she is hospitalized overnight. 8.5.22.4 He or she is or a family member is under the continuing care of a

health care provider. 8.5.22.5 The leave is due to a qualifying exigency caused by a covered military

member being on active duty or called to active duty status. 8.5.22.6 If the leave is for a family member, that the condition renders the

family member unable to perform daily activities or that the family member is a covered service member with a serious injury or illness.

8.5.23 Deductions from Salaried Exempts – The FMLA affords that providing unpaid leave will not affect the FLSA exempt status of the employee (i.e., whether the employee is paid on a salary basis).

8.5.24 Enforcement – Similar to the Fair Labor Standards Act, the Wage and Hour Division of the Department of Labor is charged with the responsibility of issuing regulations, investigating and enforcing the FMLA. Employees or the Secretary of Labor can bring a lawsuit within two years (three years for willful violation) seeking lost wages, interest, liquidated damages (in the case of willful violation), attorneys’ fees, and costs as well as equitable relief such reinstatement, employment, promotion, and injunctive relief. The FMLA has a separate provision prohibiting retaliation or discrimination against employees exercising their rights under the FMLA.

8.5.25 Posting Obligations – Covered employers are required to post a notice describing

the FMLA’s provision. An employer may draft its own notice, or copies of the acceptable language may be obtained from the Wage and Hour Division.

8.6 Special Rules for School Employees

8.6.1 Section 108 of the FMLA and Subpart F of the interim regulations contain special

rules applicable to employees of “local education agencies.” That term includes public school boards and elementary and secondary schools under their jurisdiction, as well as private elementary and secondary schools. While the general provisions of the FMLA are applicable to school employees, the special rules include limitations on the taking of intermittent leave near the end of a school term and provisions regarding restoration of an employee’s job or equivalent position. There are also rules which are specifically applicable to teachers which must be considered by an eligible employee and the employer when leave is requested.

8.6.2 West Virginia also has applicable leave statutes which must be considered in light of Section 401(b) of the FMLA which provides that:

Nothing in this Act or any amendment made by this Act shall be construed to supersede any provision of any state or local law that provides greater family or medical leave rights than the rights established under this act or any amendment made by this Act.

8.6.2.1 The obvious questions raised by the FMLA limitation provisions is

whether those provisions supersede the “greater . . . rights” provided by the West Virginia statutes. A case-by-case analysis must necessarily begin with Hudok v. B. of Ed. of Randolph County, 415 S.E.2d 897 (WV 1992).

8.6.2.2 Administrators and eligible employees must carefully review both the federal and state statutes to be sure an eligible employee is afforded the “greater” benefits when leave time is requested.

8.6.2.3 For school law purposes the following apply:

8.6.2.3.1 The provisions of the FMLA apply only to primary and secondary school levels and do not apply to colleges and universities.

8.6.2.3.2 The 50-employee test is not applicable in determining employer coverage but the 50- employees-within-75 miles test does apply to determine whether an employee is eligible.

8.6.2.3.3 Employer – Under the FMLA, the term “employer” for the school law purposes means any “local educational agency” as defined under the Elementary and Secondary Education Act of 1965; and any private elementary or secondary school.

8.6.3 The rules discussed below for using FMLA leave on an intermittent or reduced leave schedule apply only to “instructional employees.” 8.6.3.1 Special Rules Applicable to Teachers:

8.6.3.1.1 When an instructional employee requests intermittent or

reduced leave for planned medical treatment which amounts to more than 20% of the total number of working days in the period during which the leave will be taken, the employer may require the employee to: 8.6.3.1.1.1 Take leave for a “particular duration” of time

which does not exceed the duration of the planned treatment.

8.6.3.1.1.2 Be transferred to an alternative position.

8.6.3.1.2 If an instructional employee fails to give proper notice as required under FMLA, an employer may deny the leave until 30 days after the notice was provided; or may require the employee to take leave for a particular duration; or accept an alternative position.

8.6.3.1.3 Near the end of an “academic term,” there are several different scenarios adopted by Congress to minimize disruption of the classroom where employers may require an instructional employee to continue taking leave until the school term ends.

8.6.3.1.3.1 Leave is more than five weeks prior to the end of

the term: 8.6.3.1.3.1.1 When an instructional employee

begins leave more than five weeks before the end of the term and the leave will last at least three weeks and the employee would otherwise return to working during the last three weeks of the term.

8.6.3.1.3.2 Leave is less than five weeks prior to the end of the term: 8.6.3.1.3.2.1 When an instructional employee takes

leave for a reason other than the employee’s own serious health condition and the leave begins during the five weeks before the end of the term, and will last two weeks.

8.6.3.1.3.3 Leave is less than three weeks prior to the end of the term: 8.6.3.1.3.3.1 When an instructional employee takes

leave for a reason other than the employee’s own serious health condition and the leave begins during the last three weeks of the term, and if the leave will last more than five working days.

8.6.4 Twelve Weeks Maximum Entitlement

8.6.4.1 The entire period of leave taken, including any involuntary leave through the end of the school year, counts against an employee’s twelve-week entitlement; however, the employer must maintain health benefits and reinstate the employee if the leave entitlement ends before the involuntary period is completed.

8.6.5 Restoration to an “Equivalent Position

8.6.5.1 The FMLA requires that restoration of any school board employee to an equivalent position must be based on “established school board policies and practices, private school policies and practices, and collective bargaining agreement.” Such policies are required to provide substantially the same protections as provided under §104 of the Act for returning employees.

8.6.6 Definitions

8.6.6.1 Spouse is defined in accordance with applicable state law and would include

common law marriages if recognized by the state. Unmarried domestic partners or significant others are not intended by the FMLA to qualify for family leave for their partner.

8.6.6.2 Son or daughter means biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis who is under the age of 18 or over 18 and incapable of self-care because of a mental or physical disability.

8.6.6.3 Parent means the biological parent of an employee or an individual who stood in loco parentis when the employee was a son or daughter, and excludes parents-in-law.

8.6.6.4 Serious health condition is one which requires either inpatient care or continuing treatment by a health care provider. The regulations contemplate inpatient care for the latter alternative or recurring absences of more than a few days for treatment or recovery. In the case of a family member’s illness, the regulations require that the absence from work or school or incapability in performing other daily activities be for a period or more than three days in addition to requiring the continuing treatment by health care provider.

8.6.6.5 Equivalent position means the same, or substantially similar, duties and

responsibilities, and must entail substantially equivalent skill, effort, responsibility, and authority. In addition, the employee must be restored to the same worksite or to a geographically proximate worksite; the same shift or equivalent schedule; and have the same opportunity for bonuses, profit-sharing, and other non-discriminatory payments previously held. Note, however, the FMLA does not entitle a restored employee to any more rights, benefits or employment beyond that which the employee would have been entitled had FMLA leave not been taken.

8.6.6.6 Instructional employees is narrowly defined to include “only those

employees whose principal function is to teach and instruct students,” thereby excluding auxiliary personnel such as teachers’ aides and counselors.

8.6.6.7 Academic term is defined as a school semester, not the entire school year

and contemplates no more than two semesters or terms per year.

9.0 Unapproved Leave of Absence/Absence – Neglect of Duty 9.1 Upshur County Board of Education employees shall not be absent from their assigned

duties except as authorized by the Superintendent or designated representative. No employee may be absent beyond their accumulated leave except for reasons addressed in sections 1, 2, 4, 5, and 8 of this policy. Any such staff member who is willfully absent from duty without leave is subject to disciplinary action, up to and including termination of their contract of employment.

9.2 Board approval for absences without pay will be limited to unavoidable circumstances. No recommendation for such leave will be made for pleasure trips which conflict with instruction of students.

10.0 Authority:

WV Code 15-1F-1, 18A-2-2a, 18A-4-7b, 18A-4-10, 18A-4-10c, 18A-4-10Dd, 18A-4-10f, 18A-5-4a; 29 U.S.C. §2601, et seq.

11.0 Adopted: 11/21/96 Revised: 3/11/14; 11/27/07; 4/25/06; 8/10/01; 1/11/00; 10/23/97; 6/17/97