(a) Leave taken for a period that ends with the school year and
begins the next semester is leave taken consecutively rather than
intermittently. 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. An instructional employee who is
on FMLA leave at the end of the school year must be provided with any
benefits over the summer vacation that employees would normally receive
if they had been working at the end of the school year.
(1) 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 servicemember, or for
the employee's own serious health condition, which 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, the employer may require the employee to
choose either to:
(i) Take leave for a period or periods of a particular duration,
not greater than the duration of the planned treatment; or
(ii) 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.
(2) These rules apply only to a leave involving more than 20
percent of the working days during the period over which the leave
extends. For example, if an instructional employee who normally works
five days each week needs to take two days of FMLA leave per week over
a period of several weeks, the special rules would apply. Employees
taking leave which constitutes 20 percent or less of the working days
during the leave period would not be subject to transfer to an
alternative 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.
(b) If an instructional employee does not give required notice of
foreseeable FMLA leave (see Sec. 825.302) to be taken intermittently
or on a reduced leave schedule, the employer may require the employee
to take leave of a particular duration, or to transfer temporarily to
an alternative position. Alternatively, the employer may require the
employee to delay the taking of leave until the notice provision is
met.
[73 FR 68108, Nov. 17, 2008]
