3011 - Employee Leave Under the Family and Medical Leave Act (FMLA)

The ESU shall provide leave to its employees in accordance with the Family and Medical Leave Act (“FMLA”). The terms used herein shall have the meaning ascribed to them under the FMLA. Employees may also qualify for leave under the Nebraska Family Military Leave Act, which is covered under the ESU’s policy for that law. If an employee qualifies for leave under both the Family and Medical Leave Act and the Nebraska Military Leave Act, any leave taken by the employee will count concurrently toward the leave limits of both acts.

Qualifying for Leave
1. Qualified Employees
  1. To be eligible for unpaid leave under this policy, an employee must:
    1. Make the request for leave at a time when the ESU employs 50 or more workers;
    2. Have been working for the ESU for at least 12 months prior to the request; and
    3. Have worked a minimum of 1,250 hours during the 12-month period immediately preceding the commencement of the leave.
  2. The applicable 12-month period for computing an employee's entitlement to FMLA leave shall be "rolling" 12-month period measured backward from the date an employee uses any FMLA leave.
  3. Employees ineligible for FMLA leave for any reason may be eligible for leave under the Nebraska Family Military Leave Act and should consult policy 3011.1.
2. Qualified Circumstances Necessitating Leave
  1. The ESU will grant an eligible employee up to a total of 12 workweeks of unpaid leave under the following conditions:
    1. For birth of a son or daughter, and to care for the newborn child;
    2. For placement of a son or daughter with the employee for adoption or foster care;
    3. To care for the employee's spouse, son, 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 his or her job; or
    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 has been notified of an impending call or order to Covered Active Duty) in National Guard, Reserves, and/or Regular Armed Forces in support of a contingency operation
  2. The ESU will grant an eligible employee who is the spouse, son, daughter, parent or next of kin of a Covered Servicemember a total of 26 workweeks of unpaid leave during a 12-month period to care for the service member as permitted under the FMLA. The leave described in this paragraph shall only be available during a single 12-month period.
    
    For purposes of this provision and this policy, "Covered Servicemember" includes both Military Members and covered Veterans, so long as the covered Veteran was discharged or released under conditions other than dishonorable at any time during the five-year period prior to the first date the eligible employee takes FMLA leave to care for the covered Veteran.
  3. During the single 12-month period described in paragraph I(B)(2), an eligible employee shall be entitled to a combined total of 26 workweeks of leave under paragraphs I(B)(1) and I(B)(2). Nothing in this paragraph shall limit the availability of leave under paragraph I(B)(1) during any other 12-month period.
3. Limitations on Leave
  1. Leave for birth or placement for adoption or foster care must conclude within 12 months of the birth or placement.
  2. In any case in which a husband and wife both employed by the ESU are entitled to FMLA leave:
    1. The aggregate number of workweeks of FMLA leave to which both are entitled is limited to 12 during any 12-month period if such leave is taken (i) because of the birth of a son or daughter of the employee and in order to care for such son or daughter; (ii) because of the placement of a son or daughter with the employee for adoption or foster care; or (iii) to care for a sick parent who has a serious health condition; and
    2. The aggregate number of workweeks of FMLA leave to which both that husband and wife are entitled is limited to 26 during the single 12-month period in which leave is taken to care for a Covered Servicemember and the husband and wife employees are both either the son, daughter, parent, or next of kin of such Covered Servicemember, if the leave is taken for this reason or a combination of this reason and one of the three reasons described in paragraph I(C)(2)(a). If the leave taken by the husband and wife includes leave described in paragraph I(C)(2)(a), the limitation in paragraph I(C)(2)(a) shall apply to the leave described in I(C)(2)(a).
4. Qualifying Notice and Certification - Employees seeking to use FMLA leave will be required to provide:
  1. 30-day advance notice when the need to take the leave is foreseeable; provided, if (a) the leave is for needed treatment which is required to begin in less than thirty days or (b) the leave is for the reason set forth in paragraph I(B)(1)(e), the employee shall provide such notice to the ESU as is reasonable and practical;
  2. Medical certification supporting the need for leave due to a Serious Health Condition affecting the employee or family member or to care for a Military Member, and/or due to a Serious Injury or Illness to care for a Veteran;
  3. Second or third medical opinions and periodic re-certifications (at the ESU's expense);
  4. Certification supporting the need for leave because of a 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 has been notified of an impending call or order to Covered Active Duty) in the National Guard, Reserves, and/or Regular Armed Forces in support of a contingency operation;
  5. Certification supporting the need for leave to care for a Veteran who was discharged or released under conditions other than dishonorable at any time during the five-year period prior to the first date the eligible employee takes FMLA leave to care for the covered Veteran, and who is undergoing medical treatment, recuperation, or therapy for a Serious Injury or Illness; and
  6. Periodic reports during leave, at a frequency reasonably requested by the superintendent, regarding the employee's status and intent to return to work.
5. Scheduling Leave - When leave is needed to care for a family member, for the employee's own illness, or to care for a Covered Servicemember, and such leave is foreseeable based on planned medical treatment, the employee must attempt to schedule treatment so as not to unduly disrupt the ESU's operations.
Relationship with ESU During Leave
1. Leave to Be Unpaid - All leave provided to employees under the provisions of the FMLA and this policy shall be unpaid leave.
2. Substitution of Paid Leave
  1. The ESU requires employees to substitute any accrued paid vacation leave, paid personal leave, paid family leave, paid medical leave or paid sick leave for FMLA leave. However, nothing in this policy shall require the ESU to provide paid sick or medical leave in any situation in which the ESU would not normally provide such paid leave.
  2. If an employee uses paid leave under circumstances which do not qualify as FMLA leave, the leave will not count against the number of workweeks of FMLA leave to which the employee is entitled.
    iii. Any paid leave which is substituted for FMLA leave will be subtracted from the number of workweeks of unpaid leave provided by the FMLA and this policy.
3. Group Health Plan Benefits
  1. The ESU will continue group health plan benefits on the same basis as coverage would have been provided if the employee had been continuously employed during the FMLA leave period.
  2. Any share of health plan premiums which have been paid by the employee prior to FMLA leave must continue to be paid by the employee during the FMLA leave period.
4. Intermittent or Reduced-Schedule Leave
  1. Leave may be taken under this policy intermittently or on a reduced-leave schedule under certain circumstances.
    1. When leave is taken because of a birth or because of a placement of a child for adoption or foster care, an eligible employee may take leave intermittently or on a reduced-leave schedule only with the agreement of the ESU. In such a case, the administrator shall have the authority to approve or disapprove such intermittent or reduced leave schedule, in the administrator’s sole discretion.
    2. When leave is taken to care for a sick family member, for an employee's own serious health condition, or to care for a covered Veteran or Military Member, an eligible employee may take leave intermittently or on a reduced-leave schedule when medically necessary.
    3. When leave is taken by an eligible employee 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 has been notified of an impending call or order to Covered Active Duty) in National Guard, Reserves, and/or Regular Armed Forces in support of a contingency operation, the employee may take leave intermittently or on a reduced-leave schedule.
    4. When leave is taken by an eligible employee to care for a Covered Servicemember, including a Veteran who was discharged or released under conditions other than dishonorable at any time during the five-year period prior to the first date the eligible employee takes FMLA leave to care for the covered Veteran, and who is undergoing medical treatment, recuperation, or therapy for a Serious Injury or Illness
    5. Intermittent or reduced leave shall not result in a reduction in the employee's total amount of leave beyond the amount of leave actually taken.
    6. When an instructional employee seeks to take intermittent leave in connection with a family or personal illness (e.g. physical therapy or periodic care for a sick relative) or to care for a covered Veteran or Military Member, and when such leave would constitute at least 20 percent of the total number of working days in the period during which the leave would extend, the ESU may require the employee to elect to take leave in a block, instead of intermittently, for the entire period or to transfer to an available alternative position within the school system that is equivalent in pay, for which the employee is qualified, and which better accommodates the intermittent leave.
  2. If an eligible employee requests intermittent leave or leave on a reduced-leave schedule that is foreseeable based on planned medical treatment, including during a period of recovery from a serious health condition, the ESU 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. Such alternative position must have equivalent pay and benefits as the employee’s permanent position.
  3. Leave taken on an intermittent or reduced-schedule basis will be tracked hourly.
Return from Leave
1. Restoration to Position
  1. On return from FMLA leave, an employee is entitled to be returned to the same position the employee held when leave commenced, or to an equivalent position with equivalent benefits, pay, and other terms and conditions of employment.
  2. Any leave taken under this policy will not result in the loss of any employment benefits accrued prior to the date on which the leave commenced.
  3. An eligible employee is not entitled to accrual of any seniority or employment benefits during any period of leave, or any right, benefit, or position of employment other than to which the employee would have been entitled had the employee not taken leave.
2. Denial of Restoration
  1. The ESU reserves the right to deny restoration to any eligible employee who is a "key employee" (that is an employee who is salaried and among the highest paid 10% of the employees of the ESU) if such denial is necessary to prevent substantial and grievous economic injury to the operations of the ESU.
  2. If the ESU intends to deny restoration to such an employee, it will:
    1. notify the employee of his/her status as a "key employee" in response to the employee's notice of intent to take FMLA leave;
    2. notify the employee as soon as the ESU decides it will deny job restoration and explain the reasons for this decision;
    3. offer the employee a reasonable opportunity to return to work from FMLA leave after giving this notice; and
    4. make a final determination as to whether reinstatement will be denied at the end of the leave period if the employee then requests restoration.
  3. Failure to Return from Leave - If an employee fails to return from FMLA leave after the period of leave to which the employee is entitled has expired, the employee shall reimburse the ESU for any premiums the employer paid for maintaining health insurance coverage for the employee during the employee’s FMLA leave unless the reason the employee does not return is due to: (1) the continuation, recurrence, or onset of the serious health condition which entitled the employee to FMLA leave and the employee provides the ESU with sufficient certification from the proper health care provider of such continuation, recurrence, or onset of the serious health condition or (2) other circumstances beyond the employee’s control.
Notice to Employees
1. The ESU will post in conspicuous places where employees are employed notices explaining the FMLA and providing information concerning the procedures for filing complaints of FMLA violations with the U.S. Wage and Hour Division.
2. To the extent that any provision in this policy is in any manner inconsistent with the provisions of the Act or the regulations promulgated thereunder, the Act and regulations shall prevail over the provisions of this policy. The ESU reserves the right to modify this policy from time to time in its sole discretion.
3. Employees may direct any questions or concerns regarding FMLA leave to the administrator.

Adopted on: August 11, 2008
Revised on: Sept. 10, 2018
Reviewed on: May 9, 2011
Reviewed on: Oct. 11, 2021
Revised on: August 12, 2024

3011: Employee Leave Under the Family and Medical Leave Act (FMLA)