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Question on FMLA for Teacher

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  • Question on FMLA for Teacher

    My friend is a public high school teacher in California and she is due to have her baby in early July. She wants to take the 12-week unpaid leave under FMLA beginning the first day of school in early September. When she told this to the school district HR, they told her that a maternity leave has to be taken following the birth and that leave would count against her FMLA. This in essence leaves her only 6 week of unpaid leave to take at the beginning of the school year. I don't understand how the district can make her taking a maternity leave when the 6 weeks following her due date are all within the summer vacation when teachers are not required to report for duty. The district claims there is a loophole that allows them to do that. Does anyone aware of what that loophole can be for a public school?

    My second question would be if the school district can indeed require her to take a maternity leave during summer vacation, can she shorten that leave to a week or two if she can have a note from her doctor that states she is physically capable of returning to work? Thanks for the help.

  • #2
    There is no such loophole. There are some FMLA regulations that are specific to school systems, but that is not among them. Unless she typically works over the summer, as some teachers do, that time would not count against her. The 12 weeks would start once she would ordinarily start school in the fall.
    I post with the full knowledge and support of my employer, though the opinions rendered are my own and not necessarily representative of their position. In other words, I'm a free agent.


    • #3
      Don't forget PDL/CFRA

      If she qualifies for FMLA, she will qualify for PDL and CFRA also. Yes the school district can count her maternity leave to FMLA but she will still have time under CFRA. It can be hard to follow but these are how these work:

      PDL--up to 4 mos but only for the medical inability to work. Thus, not everyone takes all 4 mos. If they go out 2 weeks before the birth and take 6 weeks after, they would only use about 2 of their 4 months. This is job protected leave and there is no waiting period/hours requirement to qualify.

      FMLA--as you know provides 12 weeks of leave for a serious health condition but can also be used for bonding. FMLA can run concurrently with PDL. My CA pregnant employees get PDL/FMLA together at the inception of the leave.

      CFRA--this is the fun one. For every other condition except pregnancy, FMLA and CFRA run concurrently. However, CFRA specifically excludes pregnancy as a serious health condition. Thus, she should have this available for bonding. The earliest CFRA can start is 1) upon her full release from a PDL leave, or 2) at the time of the baby's birth if the PDL has already expired. CFRA has to be taken in a minimum of 2 week increments except on two separate occasions.

      All of the above are unpaid job protected leaves. Your friend can file for State Disability Insurance through EDD and upon her medical release can file for Paid Family Leave (again through EDD) and recieve up to 6 weeks of some compensation for bonding.

      Finally, remember that bonding can occur anytime within the first year as long as it is completed by the child's 1st birthday.