January brings snow days, icy sidewalks, and that perennial winter question: Does this count as FMLA? Yes, it’s mostly lawyers who lose sleep over it. The good news: the Department of Labor has finally cleared the fog—so, for once, attorneys can rest easy, and you can too, just in time for the next weather closure. (P.S. If you need a quick refresher on FMLA leave, before diving into this blog, click here. We also have FMLA training videos available for purchase here.)
According to the recent letter from the Department of Labor, when faced with a school closure, determining how to count FMLA depends on the type of FMLA leave the employee is using.
Scenario 1: Employee Is Using FMLA for Less Than a Full Week
Intermittent leave is only available when medically necessary or if agreed to by the employer. If an employee is approved for intermittent or reduced-schedule FMLA leave, and the school closes for one or more days during that week, and the employee is no longer expected to report to work during the closure, that time does not count against the employee’s leave entitlement.
Example: A teacher takes FMLA leave every Friday to care for a parent who has a serious health condition. If the school is closed on Friday due to icy conditions, the day does not count against the employee’s FMLA entitlement because the employee was not required to report to work.
Scenario 2: Employee Is Using FMLA for a Full Workweek
If an employee is on continuous FMLA leave for the entire workweek (which is the default approach), and the school closes for less than a week, then the entire week still counts as one full week of FMLA leave. This means the closure does not reduce the amount of FMLA leave used. It’s still 1/12 available FMLA leave weeks.
Example: A teacher is taking bonding time leave after the birth of a child for the next 12 weeks, and the school is closed on Wednesday that week due to snow. Even though the employee is not required to report to work, the employee still uses a full week of FMLA leave.
The letter clarifies the following do not impact how FMLA leave is counted:
Whether the closure was planned or unplanned.
The reason for the closure (weather, utilities, emergencies, etc.).
Whether the school later schedules a “make-up” day (an employee’s need for FMLA leave on a make-up day is evaluated independently).
Here’s to clear skies, calm forecasts, and fewer leave questions ahead. But as always, if those questions arise, drop us a message at ksb@ksbschoollaw.com.