Policy 1643- FAMILY LEAVE 
The Board of Education will provide family leave to staff members in accordance with the New Jersey Family Leave Act (NJFLA) and the Federal Family and Medical Leave Act (FMLA).  These laws have similar and different provisions that provide different rights and obligations for a staff member and the Board. 
 
If a staff member is eligible for leave for reasons recognized under both the FMLA and NJFLA, then the time taken shall run concurrently and be applied to both laws.  The NJFLA provides twelve weeks leave in a twenty-four month period and the FMLA provides twelve weeks leave in a twelve month period
 
A.        New Jersey Family Leave Act
 
1.         Definitions Relative to New Jersey Family Leave Act
 
“Base Hours” means the hours of work for which a staff member receives compensation.  Base hours shall include overtime hours for which a staff member is paid additional or overtime compensation, and hours for which a staff member receives workers’ compensation benefits.  Base hours shall also include hours a staff member would have worked except for having been in military service.  Base hours do not include hours for when a staff member receives other types of compensation, such as administrative, personal leave, vacation, or sick leave.
 
“Child” means a biological, adopted, foster child, or resource family child, stepchild, legal ward, or child of a parent, including a child who becomes the child of a parent pursuant to a valid written agreement between the parent and a gestational carrier.

“Eligible employee” means any individual employed by the same employer for twelve months or more, who has worked 1,000 or more base hours during the preceding twelve month period.
 
“Employer” includes the State, any political subdivision thereof, and all public offices, agencies, boards, or bodies.
 
“Family member” means a child, parent, parent-in-law, sibling, grandparent, grandchild, spouse, domestic partner, or one partner in a civil union couple, or any other individual related by blood to a staff member, and any other individual that a staff member shows to have a close association with a staff member which is the equivalent of a family relationship.
 
“Health care provider” means a duly licensed health care provider or other health care provider deemed appropriate by the Director of the Division on Civil Rights in the New Jersey Department of Law and Public Safety.
 
“Parent” means a person who is the biological parent, adoptive parent, foster parent, resource family parent, step-parent, parent-in-law, or legal guardian, having a “parent-child relationship” with a child as defined by law, or having sole or joint legal or physical custody, care, guardianship, or visitation with a child, or who became the parent of the child pursuant to a valid written agreement between the parent and a gestational carrier.
 
“Serious health condition” means an illness, injury, impairment, or physical or mental condition which requires:
 
a.       	Inpatient care in a hospital, hospice, or residential medical care 		facility; or
 
b.         Continuing medical treatment or continuing supervision by a 		health care provider.

As used in the definition of a serious health condition, “continuing medical treatment or continuing supervision by a healthcare provider” means:
 
a.         A period of incapacity (that is, inability to work, attend school, or 		perform regular daily activities due to a serious health condition, 		treatment therefore, and recovery therefrom) of more than three 		consecutive days, and any subsequent treatment or period of 		incapacity relating to the same condition, that also involves:
 
(1)      Treatment two or more times by a health care provider; or
 
(2)       Treatment by a health care provider on one occasion which 		results in a regimen of continuing treatment under the 		supervision of a health care provider;
 
b.         Any period of incapacity due to pregnancy, or for prenatal care;
 
c.         Any period of incapacity or treatment for such incapacity due to a 		chronic serious health condition;
 
d.         A period of incapacity, which is permanent or long-term, due to a 		condition for which treatment may not be effective (such as 		Alzheimer's disease, a severe stroke, or the terminal stages of a 		disease) where the individual is under continuing supervision of, 		but need not be receiving active treatment by, a health care 			provider; or
 
e.         Any period of absence to receive multiple treatments (including 		any period of recovery therefrom) by a health care provider or by a 	provider of health care services under orders of, or on referral by a		 health care provider, either for restorative surgery after an accident 	or other injury, or for a condition that would likely result in a 		period of incapacity of more than three consecutive calendar days 		in the absence of medical intervention or treatment, such as cancer 		(chemotherapy, radiation, etc.), severe arthritis (physical therapy), 		or kidney disease (dialysis).
 
“Spouse” means a person to whom a staff member is lawfully married as defined by New Jersey law.
 
“State of emergency” means a natural or man-made disaster or emergency for which a state of emergency has been declared by the President of the United States or the Governor, or for which a state of emergency has been declared by a municipal emergency management coordinator.
 
2.         Reasons for NJFLA Leave
 
a.         A staff member may take NJFLA leave to provide care made 		necessary by reason of:
 
(1)       The birth of a child of the staff member, including a child 		born pursuant to a valid written agreement between the 		staff member and the gestational carrier;
 
(2)       The placement of a child into foster care with the staff 		member or in connection with adoption of such child by a 		staff member;
 
(3)       The serious health condition of a family member of the 		staff member; or
 
(4)       A state of emergency declared by the Governor of New 		Jersey, or when indicated to be needed by the 			Commissioner of Health – New Jersey Department of 		Health or other public health authority, an epidemic or 		communicable disease, a known or suspected exposure to 		the communicable disease, or efforts to prevent spread of a 		communicable disease which:
 
(a)       Requires in-home care or treatment of a child due to 	the closure of the school or place of care of the 		child of a staff member, by order of a public official 	due to the epidemic or other public health 			emergency;
 
(b)       Prompts the issuance by a public health authority of 		a determination, including by mandatory 			quarantine, requiring or imposing responsive or 		prophylactic measures as a result of illness caused 		by an epidemic of a communicable disease or 		known or suspected exposure to the communicable 		disease because the presence in the community of a 		family member in need of care by a staff member 		would jeopardize the health of others; or
 
(c)       Results in the recommendation of a health care 		provider or public health authority, that a family 		member in need of care by a staff member 			voluntarily undergo self-quarantine as a result of 		suspected exposure to a communicable disease 		because the presence in the community of that 		family member in need of care by a staff member, 		would jeopardize the health of others.
 
3.         Staff Member Eligibility
 
a.         NJFLA leave may be taken for up to twelve weeks within any 		twenty-four month period. The NJFLA leave shall be unpaid with 
	benefits subject to contributions required to be made by the staff 		member.
 
b.         A staff member is eligible for NJFLA leave if a staff member is 		employed by the same Board for twelve months or more, and has 		worked 1,000 or more base hours during the preceding twelve 		month period.
 
c.         The method to determine the twenty-four month period in which 		the twelve weeks of NJFLA leave entitlement occurs shall be a 		“rolling” twenty-four month period measured backward from the 		date a staff member uses any leave under NJFLA. 
 
d.         This Policy shall serve as notice to all staff members of the method 	chosen in A.3.c. above. This method shall be applied consistently 		and uniformly to all staff members.
 
(1)       If the Board transitions to another method, the Board is 		required to give at least sixty days’ notice to all staff 		members and the transition must take place in such a way 		that staff members retain their full benefit of twelve weeks 		of NJFLA leave under whichever method affords the 		greatest benefit to a staff member.
 
e.         The Board shall grant NJFLA leave to more than one staff member 	from the same family (for example, a husband and a wife, or a 		brother and a sister) at the same time, provided such staff members 	are otherwise eligible for NJFLA leave.
 
f.          The fact that a holiday may occur within the week taken by a staff 		member as NJFLA leave has no effect and the week is counted as a 	week of NJFLA leave.
 
(1)       However, if a staff member is out on NJFLA leave and the 		staff member is not regularly scheduled to work for one or 		more weeks, the weeks the staff member is not regularly 		scheduled to work do not count against their NJFLA leave 		entitlement.
 
4.         Types of NJFLA Leave
 
a.         Staff members are required to provide notice in writing for any 		NJFLA leave requested.  In emergent circumstances, a staff 		member may provide the Board with oral notice when written 		notice is impracticable.
 
(1)       Staff members must provide the Board written notice after 		submitting oral notice in emergent circumstances.
 
b.         Consecutive NJFLA leave is NJFLA leave that is taken without 		interruption based upon a staff member’s regular work schedule 		and does not include breaks in employment in which a staff 		member is not regularly scheduled to work.
 
(1)       A staff member must provide the Board with notice of 		consecutive NJFLA leave no later than thirty days prior to 		the commencement of consecutive NJFLA leave, except 		where emergent circumstances warrant shorter notice. 
 
(2)       A staff member shall provide the Board with certification 		pursuant to A.5. below.
 
c.         Intermittent NJFLA leave is NJFLA leave due to a single 			qualifying reason, taken in separate periods of time, broken up by 		periods in which the staff member returns to work.

(1)       A staff member is entitled to take NJFLA leave 			intermittently for the birth of a child of the staff member, 		including a child born pursuant to a valid written agreement 	between the staff member and a gestational carrier or the 		placement of a child into foster care with the staff member 		or in connection with adoption of such child by the staff 		member.
 
(a)       The staff member shall provide the Board with prior 	notice of not less than fifteen calendar days before 		the first day on which NJFLI benefits are paid for 		the intermittent NJFLA leave, unless an emergency 		or other unforeseen circumstance precludes prior 		notice.
 
(b)       The staff member shall make a reasonable effort to 		schedule the intermittent NJFLA leave so as not to 		unduly disrupt the operations of the Board and, if 		possible, provide the Board, prior to the 			commencement of intermittent NJFLA leave, with a 		regular schedule of the days or days of the week on 		which the intermittent NJFLA leave will be taken.
 
(c)       A staff member shall provide the Board with 		certification for intermittent NJFLA leave pursuant 		to A.5.b. below.
 
(2)       The staff member is entitled to take intermittent NJFLA 		leave for the serious health condition of a family member 		of the staff member when medically necessary if:
 
(a)       The total time which the intermittent NJFLA leave 		is taken does not exceed twelve months if taken in 		connection with a single serious health condition.  If 	the intermittent NJFLA leave is taken in connection 		with more than one serious health condition, the 		intermittent NJFLA leave must be taken within a 		consecutive twenty-four month period or until such 		time the twelve week NJFLA leave is exhausted, 		whichever is shorter;
 
(b)       The staff member provides the Board with prior 		notice of not less than fifteen calendar days before 		the first day on which benefits are paid for the 		intermittent NJFLA leave.
 
(i)        The staff member may provide notice less 		than fifteen days prior to the intermittent 		NJFLA leave if an emergency or other 		unforeseen circumstance precludes prior 		notice;
 
(c)       The staff member makes a reasonable effort to 		schedule the intermittent NJFLA leave so as not to 		unduly disrupt the operations of the school district 		and, if possible, provide the school district, prior to 		the commencement of intermittent NJFLA leave, 		with a regular schedule of the days or days of the 		week on which the intermittent NJFLA leave will 		be taken; and
 
(d)       The staff member provides the Board with a copy of 	the certification outlined in A.5.c. below.
 
(3)       In the case of NJFLA leave taken due to an epidemic of a 		communicable disease, a known or suspected exposure to 		the communicable disease, or efforts to prevent spread of 		the communicable disease, the NJFLA leave may only be 		taken intermittently if:
 
(a)       The staff member provides the Board with prior 		notice of the intermittent NJFLA leave as soon as 		practicable;
 
(b)       The staff member makes a reasonable effort to 		schedule the NJFLA leave so as not to unduly 		disrupt the operations of the school district and, if 		possible, provide the school district prior to the 		commencement of the intermittent NJFLA leave, 		with a regular schedule of the day or days of the 		week on which the intermittent NJFLA leave will 		be taken; and
 
(c)       A staff member provides the Board with a copy of 		the certification outlined in A.5.d. below.
 
(4)       Intermittent leave taken on a reduced leave schedule is 		NJFLA leave due to a single qualifying reason, that is 		scheduled for fewer than a staff member’s usual number of 		hours worked per workweek, but not for fewer than a staff 		member’s usual number of hours worked per workday and 		may only be taken to care for the serious health condition 		of a family member of a staff member when medically 		necessary, except that:
 
(a)       A staff member shall not be entitled to intermittent 		NJFLA leave on a reduced leave schedule for a 
	period exceeding twelve consecutive months for 		any one period of NJFLA leave;
 
(b)       The staff member must provide the Board with prior 	notice of the intermittent NJFLA leave on a reduced 	leave schedule as soon as practicable;
 
(c)       A staff member shall make a reasonable effort to 		schedule intermittent NJFLA leave on a reduced 		leave schedule so as not to disrupt unduly the 		operations of the school district.  A staff member 		shall provide the school district with prior notice of 		the care, medical treatment, or continuing 			supervision by a health care provider necessary due 		to a serious health condition of a family member, in 		a manner which is reasonable and practicable; and
 
(d)       A staff member must provide the Board with a copy 	of the certification outlined in A.5.c. below.
 
d.         NJFLA leave taken because of the birth or placement for adoption 		of a child of the staff member may commence at any time within a 		year after the date of the foster care placement, birth, or placement 		for adoption.
 
e.         A staff member shall not, during any period of NJFLA leave, 		perform services on a full-time basis for any person for whom a 		staff member did not provide those services immediately prior to 		commencement of the NJFLA leave.
 
(1)       A staff member on NJFLA leave may not engage in other 		full-time employment during the term of the NJFLA leave, 		unless such employment commenced prior to the NJFLA 		leave and is not otherwise prohibited by law.
 
(2)       During the term of NJFLA leave a staff member may 		commence part-time employment which shall not exceed 		half the regularly scheduled hours worked for the Board 		from whom a staff member requested NJFLA leave. A staff 	member may continue part-time employment which 		commenced prior to a staff member's NJFLA leave, at the 		same number of hours that a staff member was regularly 		scheduled prior to such NJFLA leave.
 
(3)       The Board may not maintain a policy or practice which 		prohibits part-time employment during the course of a 		NJFLA leave.
 
5.         Certification
 
a.         The Board shall require a staff member who requests NJFLA leave 	to sign a form of certification established by the Board attesting 		that such staff member is taking NJFLA leave in accordance with 		the law.
 
(1)       The Board may not require a staff member to sign or 		otherwise submit a form of certification attesting to 			additional facts, including a staff member's eligibility for 		NJFLA leave.  
 
(2)       The Board may subject a staff member to reasonable 		disciplinary measures, depending on the circumstances, 		when a staff member intentionally misrepresents the reason 	that such staff member is taking NJFLA leave.
 
(3)       The form of certification established by the Board shall 		contain a statement warning a staff member of the 			consequences of refusing to sign the certification or falsely 		certifying.  Any staff member who refuses to sign the 		certification established by the Board may be denied the 		requested NJFLA leave.
 
(4)       The Board requires that any period of NJFLA leave be 		supported by certification issued by a health care provider.
 
b.         Where the certification, issued by the health care provider, is for 		the birth of a child of a staff member, including a child born 		pursuant to a valid written agreement between the staff member 		and a gestational carrier or the placement of a child into foster care 	with the staff member or in connection with adoption of such child 		by the staff member, the certification need only state the date of 		birth or date of placement, whichever is appropriate.
 
c.         Any period of NJFLA leave for the serious health condition of a 		family member of a staff member shall be supported by 			certification provided by a health care provider.  The certification 		shall be sufficient if it states:
 
(1)       The date, if known, on which the serious health condition 		commenced;
 
(2)       The probable duration of the condition;
 
(3)       The medical facts within the knowledge of the provider of 		the certification regarding the condition;
 
(4)       The serious health condition warrants the participation of 		the staff member in providing health care to the family 		member, as provided in the “Family Leave Act,” P.L. 1989, 	c.261 (C.34:11B-1 et seq.) and regulations adopted 			pursuant to the NJFLA;
 
(5)       An estimate of the amount of time the staff member is 		needed for participation in the care of the family member;
 
(6)       If the NJFLA leave is intermittent, a statement of the 		medical necessity for the intermittent NJFLA leave and the 		expected duration of the intermittent NJFLA leave; and
 
(7)       If NJFLA leave is intermittent and for planned medical 		treatment, the dates of the treatment.
 
d.         In any case in which the Board has reason to doubt the validity of 		the certification provided pursuant to A.5.c. above, the Board may 		require, at its own expense, that a staff member obtain an opinion 		regarding the serious health condition from a second health care 		provider designated or approved, but not employed on a regular 		basis, by the Board.  If the second opinion differs from the 			certification provided pursuant to A.5.c. above, the Board may 		require, at its own expense, that a staff member obtain the opinion 		of a third health care provider designated or approved jointly by 		the Board and a staff member concerning the serious health 		condition. The opinion of the third health care provider shall be 		considered to be final and shall be binding on the Board and a staff 	member.
 
e.         Where the certification is for an epidemic of a communicable 		disease, a known or suspected exposure to the communicable 		disease, or efforts to prevent the spread of the communicable 		disease, the certification shall be sufficient if it includes:
 
(1)       For NJFLA leave taken to provide in-home care or 			treatment of a child due to the closure of the school or place 	of care of the child of a staff member, by order of a public 		official due to the epidemic or other public health 			emergency, the date on which the closure of the school or 		place of care of the child of a staff member commenced 		and the reason for such closure;
 
(2)       For NJFLA leave taken due to a public health authority’s 		issuance of a determination requiring or imposing 			responsive or prophylactic measures as a result of illness 		caused by an epidemic of a communicable disease or 		known or suspected exposure to the communicable disease 		because the presence in the community of a family member 	in need of care by a staff member would jeopardize the 		health of others, the date of issuance of the determination, 		and the probable duration of the determination; or
 
(3)       For NJFLA leave taken because a health care provider or 		public health authority recommends that a family member 		in need of care by a staff member voluntarily undergo 		self-quarantine as a result of suspected exposure to a 		communicable disease because the presence in the 			community of that family member in need of care by a staff 	member would jeopardize the health of others, the date of 		the recommendation, the probable duration of the 			condition, and the medical or other facts within the health 		care provider or public health authority’s knowledge 		regarding the condition.

f.          The Board shall not use the certification requirements as outlined 		in A.5. to intimidate, harass, or otherwise discourage a staff 		member from requesting or taking NJFLA leave or asserting any of 	a staff member's rights to NJFLA leave.
 
6.         Denial or Exemption of NJFLA Leave
 
a.         Denial of NJFLA Leave
 
(1)       The Board may deny NJFLA leave to a staff member if:
 
(a)       A staff member is a salaried staff member who is 		among the highest paid 5% of the Board’s staff 		members or the seven highest paid staff members of 	the Board, whichever is greater;
 
(b)       The denial is necessary to prevent substantial and 		grievous economic injury to the Board’s operations; 		and
 
(c)       The Board notifies a staff member of its intent to 		deny the NJFLA leave at the time the Board 			determines that the denial is necessary.
 
(2)       The provisions of A.6.a.(1) above shall not apply when, in 		the event of a state of emergency declared by the Governor 		of New Jersey or when indicated to be needed by the	 	Commissioner of Health – New Jersey Department of 		Health or other public health authority, the NJFLA leave is 		for an epidemic of a communicable disease, a known or 		suspected exposure to a communicable disease, or efforts to 	prevent spread of a communicable disease.
 
(3)       In any case in which NJFLA leave has already commenced 		at the time of the notification pursuant to A.6.a.(1)(c) 		above, a staff member shall return to work within ten 		working days of the date of notification.
 
7.         Reinstatement from NJFLA Leave
 
a.         Upon the expiration of a NJFLA leave, a staff member shall be 		restored to the position such staff member held immediately prior 		to the commencement of the NJFLA leave. If such position has 		been filled, the Board shall reinstate such staff member to an 		equivalent position of like seniority, status, employment benefits, 		pay, and other terms and conditions of employment.
 
b.         If, during NJFLA leave, the Board experiences a reduction in force 	or layoff and a staff member would have lost their position had a 		staff member not been on NJFLA leave, as a result of the reduction 	in force or pursuant to the good faith operation of a bona fide 		layoff and recall system including a system under a collective 		bargaining agreement where applicable, a staff member shall not 		be entitled to reinstatement to the former or an equivalent position. 		A staff member shall retain all rights under any applicable layoff 		and recall system, including a system under a collective bargaining 	agreement, as if a staff member had not taken the NJFLA leave.
 
8.         Notice to Staff Members
 
a.         The Board shall display the official Family Leave Act poster of the 	Division on Civil Rights in the New Jersey Department of Law and 	Public Safety (Division) in accordance with N.J.A.C. 13:8-2.2.  		The poster is available for printing from the Division's website.
 
b.         Access to and/or distribution of this Policy shall serve as school 		district notice to staff members of their rights pursuant to N.J.A.C. 		13:14-1.14. 
 
9.         Local Board of Education Practices
 
a.         Accrued Paid NJFLA Leave
 
(1)       Whether a staff member is required to use any other 			accrued leave time concurrent with NJFLA leave time will 		depend upon either the school district’s practice or a 		provision in a collective bargaining agreement, if 			applicable.
 
(a)       Sick leave may only be used concurrently with the 		NJFLA leave in accordance with the provisions of 		N.J.S.A. 18A:30-1 and N.J.S.A. 34:11B-3.
 
b.         Multiple Leaves of Absence
 
(1)       Where a Board maintains leaves of absence which provide 		benefits, other than health benefits, that differ depending 		upon the type of leave taken, the Board shall provide those 		benefits to a staff member on NJFLA leave in the same 		manner as it provides benefits to staff members who are 		granted other leaves of absence which most closely 			resemble NJFLA leave.
 
10.       New Jersey Family Leave Insurance Program (NJFLI)
 
a.         Board of Education staff members are eligible to apply for benefits 	under the NJFLI Program administered by the State of New Jersey 		Department of Labor and Workforce Development.
 
b.         All applications for benefits under the NJFLI Program must be 		filed directly with the State of New Jersey Department of Labor 		and Workforce Development.  The eligibility requirements, wage 		requirements, benefit duration and amounts, and benefit limitations 	shall be in accordance with the provisions of the NJFLI Program as 	administered by the State of New Jersey Department of Labor and 		Workforce Development.  A formal appeal may be submitted to the 	State of New Jersey Department of Labor and Workforce 			Development if an employee or the Board disagrees with a 			determination on a claim.
 
c.         The NJFLI Program provides eligible individuals a monetary 		benefit and not a leave benefit.  The school district administrative 		and related staff will comply with the State of New Jersey 			Department of Labor and Workforce Development requests for 		information in accordance with the provisions of N.J.A.C. 			12:21-3.9.
 
d.         A printed notification of staff members’ rights relative to the 		receipt of benefits under the NJFLI Program will be posted in each 		of the school district worksites and in a place or places accessible 		to all employees at the worksite. 
 
e.         Each staff member shall receive a copy of this notification in 		writing at the time of the staff member’s hiring, whenever the staff 		member provides written notice to the Superintendent of their 		intention to apply for benefits under the NJFLI Program, or at any 		time upon the first request of the staff member. 
 
(1)       The written notification may be transmitted to the staff 		member in electronic form.

(2)       Access to and/or distribution of this Policy shall serve as 		school district notice to staff members of their rights under 		the NJFLI Program.
 
B.        Federal Family and Medical Leave Act
 
1.         Definitions Relative to Federal Family and Medical Leave Act
 
“Covered Employer” means any public or private elementary or secondary school(s) regardless of the number of employees employed.
 
“Employee” means a staff member eligible for family and medical leave in accordance with the Federal Family and Medical Leave Act (FMLA).
 
“Hours of Service” means hours actually worked by the employee.  It does not mean hours paid.  Thus, non-working time – such as vacations, holidays, furloughs, sick leave, or other time-off (paid or otherwise) – does not count for purposes of calculating FMLA eligibility for the employee.
 
“Parent” means a biological, adoptive, step, or foster father or mother, or any other individual who stood in loco parentis to a staff member when a staff member has a son or daughter as defined below.  This term does not include parents “in law.”
 
“Serious health condition” means an illness, injury, impairment, or physical or mental condition that involves inpatient care in a hospital, hospice, or residential medical facility or continuing treatment by a health care provider.  “Serious health condition” may include treatment of substance abuse pursuant to 29 CFR §825.119.
 
“Son” or “daughter” means a biological, adopted, or foster child, stepchild, a legal ward, or a child of a person standing in loco parentis, who is either under age 

eighteen or age eighteen or older and incapable of self-care because of a mental or physical disability at the time that FMLA leave is to commence.
 
“Spouse” means a husband or wife.  For purposes of this definition, husband or wife refers to the other person with whom an individual entered into marriage as defined or recognized under State law in the State in which the marriage was entered into or, in the case of a marriage entered into outside of any State, if the marriage is valid in the place where entered into and could have been entered into in at least one State.  This definition includes an individual in a same-sex marriage or common law marriage. 
 
“Week” or “Workweek” means the number of days a staff member normally works each calendar week. 
 
2.         Qualifying Reasons for FMLA Leave
 
a.         A staff member may take FMLA leave to provide care made 		necessary:
 
(1)       For the birth of a son or daughter of a staff member and in 		order to care for such son or daughter;
 
(2)       For the placement of a son or daughter with a staff member 		for adoption or foster care;
 
(3)       In order to care for the spouse, son, daughter, or parent of a 		staff member if such spouse, son, daughter, or parent has a 		serious health condition;
 
(4)       For a serious health condition that makes a staff member 		unable to perform the functions of the position of such staff 	member.

b.         FMLA leave taken in relation to military service shall be in 		accordance with 29 CFR §825.112.
 
c.         Entitlement to FMLA leave taken for the birth of a son or daughter 		or placement of a son or daughter with a staff member for adoption 	or foster care shall expire at the end of the twelve month period 		beginning on the date of such birth or placement.
 
3.         Staff Member Eligibility
 
a.         A staff member is eligible for up to twelve weeks of FMLA leave 		in a twelve month period.
 
b.         A staff member shall become eligible for FMLA leave after the 		staff member has been employed at least twelve months by the 		Board and employed for at least 1,250 hours of service during the 		twelve month period immediately preceding the commencement of 	the FMLA leave. 
 
(1)       The twelve months a staff member must have been 			employed need not be consecutive months pursuant to 29 		CFR §825.110(b).
 
(2)       The minimum 1,250 hours of service shall be determined 		according to the principles established under the Fair Labor 	Standards Act (FLSA) for determining compensable hours 		of work pursuant to 29 CFR §785.
 
(3)       The Board shall not provide pay for FMLA leave.
 
c.         The method to determine the twelve month period in which the 		twelve weeks of FMLA leave entitlement occurs will be a “rolling” 
	twelve month period measured backward from the date a staff 		member uses any FMLA leave.
 
d.         Pursuant to 29 CFR §825.201, a husband and wife both employed 		by the Board are limited to a combined total of twelve weeks of 		FMLA leave during the twelve month period if the FMLA leave is 		taken for the birth of a son or daughter of a staff member or to care 	for such son or daughter after birth; for placement of a son or 		daughter with a staff member for adoption or foster care or in order 	to care for the son or daughter after placement; or to care for a staff 	member’s parent with a serious health condition.
 
4.         Types of FMLA leave
 
a.         Continuous FMLA leave is taken by staff members for a 			continuous period of time.  Such FMLA leave is not broken up by 		a period of work and is continuous when a staff member is absent 		for three consecutive working days or more.  Continuous FMLA 		leave may be taken for any qualifying reason.
 
b.         Intermittent FMLA leave is FMLA leave taken in separate blocks 		of time due to a single qualifying reason.  A reduced FMLA leave 		schedule is a FMLA leave schedule that reduces a staff member’s 		usual number of working hours per workweek, or hours per 		workday. A reduced FMLA leave schedule is a change in a staff 		member’s schedule for a period of time, normally from full-time to 	part-time.
 
(1)       Intermittent or reduced FMLA leave may be taken for the 		following qualifying reasons:

(a)       For the serious health condition of the staff member 		or to care for a parent, son, or daughter with a 		serious health condition.
 
(i)        For intermittent FMLA leave or FMLA 		leave on a reduced FMLA leave schedule 		taken for the reason outlined in B.4.b.(1)(a) 		above there must be a medical need for 		FMLA leave and it must be that such 		medical need can be best accommodated 		through an intermittent or reduced FMLA 		leave schedule.
 
(ii)       The treatment regimen and other 			information described in the certification of 		a serious health condition and in the 			certification of a serious injury or illness, 		shall address the medical necessity of 		intermittent FMLA leave or FMLA leave on 	a reduced FMLA leave schedule.
 
(iii)     	Intermittent FMLA leave may be taken for a 	serious health condition of a parent, son, or 		daughter, for a staff member’s own serious 		health condition, which requires treatment 		by a health care provider periodically, rather 		than for one continuous period of time, and 		may include FMLA leave of periods from an 	hour or more to several weeks.
 
(b)      For planned and/or unanticipated medical treatment 		of a serious health condition when medically 			necessary.
 
(c)       To provide care or psychological comfort to a 		covered family member with a serious health 		condition when medically necessary.
 
(d)       For absences where a staff member or family 		member is incapacitated or unable to perform the 		essential functions of the position because of a 		chronic serious health condition even if he or she 		does not receive treatment by a health care provider.
 
(e)       For FMLA leave taken after the birth of a healthy 		child or placement of a healthy child for adoption or 	foster care, only if the Board agrees.
 
(i)        The Board’s agreement is not required; 		however, for FMLA leave during which the 		mother has a serious health condition in 		connection with the birth of her child or if 		the newborn child has a serious health	 	condition.
 
(2)       If a staff member needs FMLA leave intermittently or on a 		reduced FMLA leave schedule for planned medical 			treatment, then a staff member must make a reasonable 		effort to schedule the treatment so as not to disrupt unduly 		the Board’s operations.
 
(3)       When a staff member takes FMLA leave on an intermittent 		or reduced FMLA leave schedule basis, the Board must 		account for the FMLA leave using an increment no greater 		than the shortest period of time that the Board uses to 		account for use of other forms of leave provided that it is
	not greater than one hour and provided further that a staff 		member’s FMLA leave entitlement may not be reduced by 		more than the amount of FMLA leave actually taken.
 
(a)       If the Board accounts for use of leave in varying 		increments at different times of the day or shift, the 		Board may not account for FMLA leave in a larger 		increment than the shortest period used to account 		for other leave during the period in which the 		FMLA leave is taken.
 
(b)       If the Board accounts for other forms of leave use in 	increments greater than one hour, the Board must 		account for FMLA leave use in increments no 		greater than one hour.
 
5.         Staff Member Notice Requirements
 
a.         A staff member eligible for FMLA leave must give at least a thirty 		day written advance notice to the Superintendent or designee if the 		need for the FMLA leave is foreseeable based on an expected 		birth, placement for adoption or foster care, or planned medical 		treatment for a serious health condition of a staff member or a 		family member.
 
(1)       If thirty days is not practical, a staff member must provide 		notice “as soon as practicable” which means as soon as 		both possible and practical, taking into account all the facts 		and circumstances in the individual case.
 
(2)       Where it is not possible to give as much as thirty days’ 		notice, “as soon as practical” ordinarily would mean at least
	verbal notification to the Superintendent or designee within 	one or two business days or when the need for FMLA leave 	becomes known to a staff member.
 
(3)       The written notice shall include the reasons for the FMLA 		leave, the anticipated duration of the FMLA leave, and the 		anticipated start of the FMLA leave.
 
(4)       When planning medical treatment, a staff member must 		consult with the Superintendent or designee and make a 		reasonable effort to schedule the FMLA leave so as not to 		unduly disrupt the educational program, subject to the 		approval of the health care provider. 
 
(a)       Staff members are ordinarily expected to consult 		with the Superintendent or designee prior to 			scheduling of treatment that would require FMLA 		leave for a schedule that best suits the needs of the 		Board and a staff member.
 
(5)       Intermittent FMLA leave or FMLA leave on a reduced 		FMLA leave schedule must be medically necessary due to 		a serious health condition or a serious injury or illness. A 		staff member shall advise the Board of the reasons why the 		intermittent/reduced FMLA leave schedule is necessary and 	of the schedule for treatment, if applicable.
 
(a)       A staff member and the Board shall attempt to work 		out a schedule for such FMLA leave that meets a 		staff member’s needs without unduly disrupting the 		Board’s operations, subject to the approval of the 		health care provider.

(6)       Where a staff member does not comply with the Board’s 		usual notice and procedural requirements, and no unusual 		circumstances justify the failure to comply, 				FMLA-protected leave may be delayed or denied.
 
b.         When the approximate timing of the need for FMLA leave is not 		foreseeable, a staff member should give notice to the 			Superintendent or designee for FMLA leave as soon as practicable 		under the facts and circumstances of the particular case.
 
(1)       It is expected a staff member will give notice to the 			Superintendent or designee within no more than one or two 		business days of learning of the need for FMLA leave, 		except in extraordinary circumstances where such notice is 		not foreseeable. 
 
(2)       A staff member should provide notice to the Board either in 	person, by telephone, telegraph, fax machine, email, or 		other electronic means.
 
6.         Outside Employment During FMLA Leave
 
a.         A staff member during any period of FMLA leave is prohibited 		from performing any services on a full-time basis for any person 		for whom a staff member did not provide services immediately 		prior to commencement of the FMLA leave. 
 
(1)       A staff member using FMLA leave may commence 			part-time employment that shall not exceed half the 			regularly scheduled hours worked for the Board. 
 
(2)       A staff member may continue the part-time employment 		that commenced prior to the FMLA leave at the same 	
	number of hours that a staff member was regularly 			scheduled prior to such FMLA leave.
 
7.         “Instructional Employees” Exceptions for FMLA Leave
 
a.         “Instructional Employees” are those staff members whose principal 	function is to teach and instruct students in class, a small group, or 		in an individual setting.  This term includes teachers, athletic 		coaches, driving instructors, and special education assistants, such 		as signers for the hearing impaired. 
 
(1)       Teacher assistants or aides who do not have as their 			principal job actual teaching or instructing, guidance 		counselors, child study team members, curriculum 			specialists, cafeteria workers, maintenance workers, and/or 		bus drivers are not considered instructional staff members 		for the purposes of this Policy. 
 
(2)       For purposes of this Policy “Instructional Employees” shall 		be referred to as “Instructional Staff Members”.
 
b.         “Semester” means the school semester that typically ends near the 		end of the calendar year and the end of the spring each school year.  	The Board can have no more than two semesters in a school year.
 
c.         FMLA leave taken at the end of the school year and continues into 		the beginning of the next school year is considered consecutive 		FMLA leave.

d.         Eligible instructional staff members that need intermittent or 		reduced FMLA leave to care for a family member or for a staff 	
	member’s own serious health condition which is foreseeable based 		on planned medical treatment and would be on FMLA leave more 		than twenty percent of the total number of working days over the 		period the FMLA leave would extend, the Board may:
 
(1)       Require a staff member to take the FMLA leave for a 		period or periods of a particular duration, not greater than 		the duration of the planned treatment; or
 
(2)       Transfer a staff member temporarily to an available 			alternative position for which a staff member is qualified, 		which has equivalent pay and benefits and which better 		accommodates recurring periods of FMLA leave than does 		a staff member’s regular position.
 
e.         If the instructional staff member does not give the required notice 		for FMLA leave that is foreseeable and desires the FMLA leave to 		be taken intermittently or on a reduced FMLA leave schedule, the 		Board may require a staff member to take FMLA leave of a 		particular duration, or to transfer temporarily to an alternative 		position.  Alternatively, the Board may require a staff member to 		delay taking the FMLA leave until the notice provision is met.
 
f.          If an instructional staff member begins FMLA leave more than 		five weeks before the end of the school year, the Board may 		require a staff member to continue taking FMLA leave until the 		end of the semester if:
 
(1)       The FMLA leave will last three weeks; and
 
(2)       A staff member would return to work during the three-week 	period before the end of the semester.
 
g.         If an instructional staff member begins FMLA leave for a purpose 		other than a staff member’s own serious health condition during 		the five week period before the end of the semester, the Board may 	require a staff member to continue taking FMLA leave until the 		end of the semester if:
 
(1)       	The FMLA leave will last more than two weeks; and
 
(2)       The staff member would return to work during the two 		week period before the end of the semester.
 
h.         If an instructional staff member begins FMLA leave for a purpose 		other than a staff member’s own serious health condition during 		the three week period before the end of a semester, the Board may 		require a staff member to continue taking FMLA leave until the 		end of the semester if the FMLA leave will last more than five 		working days.
 
i.          An example of FMLA leave falling within the situations outlines 		in B.7.f., B.7.g., and B.7.h. above:
 
(1)       If a staff member plans two weeks of FMLA leave to care 		for a family member which will begin three weeks before 		the end of the term, the Board could require a staff member 	to stay out on FMLA leave until the end of the term.
 
j.          In the case of a staff member who is required to take FMLA leave 		until the end of an academic term, only the period of FMLA leave 		until a staff member is ready and able to return to work shall be 		charged against a staff member’s FMLA leave entitlement.
 
k.         The Board may require a staff member to stay on FMLA leave 		until the end of the school term.  Any additional leave required by 		the Board to the end of the school term is not counted as FMLA 		leave; however:
 
(1)       The Board shall be required to maintain a staff member’s 		group health insurance; and
 
(2)       The Board shall be required to restore a staff member to the 	same or equivalent job including other benefits at the 		conclusion of the leave.
 
8.         FMLA Leave Related to Military Service
 
a.         Definitions for FMLA related to military service shall be in 			accordance with 29 CFR §§825.122; .126; .127; and .310. 
 
b.         The foreign deployment of the staff member’s spouse, child, or 		parent in accordance with 29 CFR §§825.122 and .126:
 
(1)       The district must grant an eligible staff member up to 		twelve work weeks of unpaid, job-protected FMLA leave 		during any twelve month period for qualifying exigencies 		that arise when the staff member’s spouse, child, or parent 		is on covered active duty, or has been notified of an 			impending call or order to cover active duty.
 
c.         Military caregiver FMLA leave provides care for a covered 			servicemember with a serious injury or illness in accordance with 		29 CFR §§825.122 and .127:
 
(1)       The district must grant up to a total of twenty-six 			workweeks of unpaid, job-protected FMLA leave during a 		“single twelve month period” to care for a covered 			servicemember with a serious injury or illness.
 
9.         Verification
 
a.         The Board shall require that a staff member's FMLA leave to care 		for a staff member's covered family member with a serious health 		condition, or due to a staff member's own serious health condition 		that makes a staff member unable to perform one or more of the 		essential functions of a staff member's position, be supported by a 		certification issued by the health care provider of a staff member or 	a staff member's family member.
 
(1)       The Board must give written notice of a requirement for 		certification each time a certification is required.  The 		Board's oral request to a staff member to furnish any 		subsequent certification is sufficient.
 
b.         The Board shall require a staff member furnish certification at the 		time a staff member gives notice of the need for FMLA leave or 		within five business days thereafter, or, in the case of unforeseen 		FMLA leave, within five business days after the FMLA leave 		commences.
 
(1)       The Board may request certification at some later date if the 	Board later has reason to question the appropriateness of 		the FMLA leave or its duration.
 
(2)       A staff member must provide the requested certification to 		the Board within fifteen calendar days after the Board's 		request, unless it is not practicable under the particular 		circumstances to do so despite a staff member's diligent, 		good faith efforts or the Board provides more than fifteen 		calendar days to return the requested certification.
 
c.         When FMLA leave is taken because of a staff member's own 		serious health condition, or the serious health condition of a family 	member, the Board shall require a staff member to obtain a medical 	certification from a health care provider that sets forth the 			following information:
 
(1)       The name, address, telephone number, and fax number of 		the health care provider and type of medical 				practice/specialization;
 
(2)       The approximate date on which the serious health condition 	commenced, and its probable duration;
 
(3)       A statement or description of appropriate medical facts 		regarding the patient's health condition for which FMLA 		leave is requested. The medical facts must be sufficient to 		support the need for FMLA leave.
 
(a)       Such medical facts may include information on 		symptoms, diagnosis, hospitalization, doctor visits, 		whether medication has been prescribed, any 		referrals for evaluation or treatment (physical 		therapy, for example), or any other regimen of 		continuing treatment;
 
(4)       If a staff member is the patient, information sufficient to 		establish that a staff member cannot perform the essential 	
	functions of a staff member's job as well as the nature of 		any other work restrictions, and the likely duration of such 		inability;
 
(5)       If the patient is a covered family member with a serious 		health condition, information sufficient to establish that the 		family member is in need of care, and an estimate of the 		frequency and duration of the FMLA leave required to care 		for the family member;
 
(6)       If a staff member requests FMLA leave on an intermittent 		or reduced schedule basis for planned medical treatment of 		a staff member's or a covered family member's serious 		health condition, information sufficient to establish the 		medical necessity for such intermittent or reduced schedule 		FMLA leave and an estimate of the dates and duration of 		such treatments and any periods of recovery;
 
(7)       If a staff member requests FMLA leave on an intermittent 		or reduced schedule basis for a staff member's serious 		health condition, including pregnancy, that may result in 		unforeseeable episodes of incapacity, information sufficient 	to establish the medical necessity for such intermittent or 		reduced schedule FMLA leave and an estimate of the 		frequency and duration of the episodes of incapacity; and
 
(8)       If a staff member requests FMLA leave on an intermittent 		or reduced schedule basis to care for a covered family 		member with a serious health condition, a statement that 		such FMLA leave is medically necessary to care for the 		family member, which can include assisting in the family 		member's recovery, and an estimate of the frequency and 		duration of the required FMLA leave.
 
d.         A staff member may choose to comply with the certification 		requirement by providing the Board with an authorization, release, 		or waiver allowing the Board to communicate directly with the 		health care provider of a staff member or his or her covered family 		member.  
 
(1)       It is a staff member's responsibility to provide the Board 		with complete and sufficient certification and failure to do 		so may result in the denial of FMLA leave.
 
e.         If the Board has reason to doubt the validity of a medical 			certification, the Board may require a staff member to obtain a 		second opinion at the Board's expense.
 
(1)       The Board may designate the health care provider to furnish 	the second opinion, but the selected health care provider 		may not be employed on a regular basis by the Board.
 
f.          If the opinions of a staff member's and the Board's designated 		health care providers differ, the Board may require a staff member 		to obtain certification from a third health care provider, again at the 	Board's expense. This third opinion shall be final and binding. The 		third health care provider must be designated or approved jointly 		by the Board and the staff member.
 
10.       Reinstatement Following FMLA Leave
 
a.         On return from FMLA leave a staff member is entitled to be 		returned to the same position a staff member held when FMLA 		leave commenced, or to an equivalent position with equivalent 		benefits, pay, and other terms and conditions of employment. 
 
(1)       A staff member is entitled to such reinstatement even if a 		staff member has been replaced or his or her position has 		been restructured to accommodate for a staff member’s 		absence. 
 
(2)       The requirement that a staff member be restored to the 		same or equivalent job with the same or equivalent pay, 		benefits, and terms and conditions of employment does not 		extend to de minimis, intangible, or unmeasurable aspects 		of the job. 
 
b.         Denial of Reinstatement
 
(1)       A staff member has no greater right to reinstatement or to 		other benefits and conditions of employment that if a staff 		member had been continuously employed during the 		FMLA leave period. 
 
(a)       The Board must be able to show that a staff member 	would not otherwise have been employed at the 		time reinstatement is requested in order to deny 		restoration to employment.
 
(2)       The Board may deny job restoration to “key employees”, if 		such denial is necessary to prevent substantial and grievous 	economic injury to the operations of the Board.
 
(a)       A “key employee” is a salaried FMLA-eligible staff 		member who is among the highest paid ten percent 		of all staff members employed by the Board within 		seventy-five miles of a staff member's worksite.
 
(3)       If a staff member is unable to perform an essential function 		of the position because of a physical or mental condition, 		including the continuation of a serious health condition or 		an injury or illness also covered by workers’ compensation, 	a staff member has no right to restoration to another 		position under the FMLA. 
 
(a)       The Board’s obligation may; however, be governed 		by the Americans with Disabilities Act, State leave 		law, or workers’ compensation laws. 
 
(4)       A staff member who fraudulently obtains FMLA leave 		from the Board is not protected by FMLA's job restoration 		or maintenance of health benefits provisions.
 
c.         Intent to Return to Work
 
(1)       The Board may require a staff member on FMLA leave to 		report periodically on a staff member's status and intent to 		return to work.
 
d.         Fitness for Duty Certification
 
(1)       As a condition of restoring a staff member whose FMLA 		leave was a result of a staff member's own serious health 		condition that made a staff member unable to perform a 		staff member's job, the Board shall require all 			similarly-situated staff members (i.e., same occupation, 		same serious health condition) who take FMLA leave for 		such conditions to obtain and present certification from a 		staff member's health care provider that a staff member is 		able to resume work.

(2)       A staff member has the same obligations to participate and 		cooperate in the fitness-for-duty certification process as in 		the initial certification process.
 
11.       The Board of Education Notice
 
a.         Notice of Staff Member Rights Under FMLA
 
(1)       The Board shall post and keep posted on its premises, in 		conspicuous places where staff members are employed, a 		notice explaining the FMLA’s provisions and providing 		information concerning the procedures for filing complaints 	of violations of the FMLA with the Wage and Hour 			Division.
 
(a)      	The notice will be posted prominently where it can 		be readily seen by staff members and applicants for 		employment.
 
(b)       The poster and the text will be large enough to be 		easily read and contain fully legible text.
 
(c)       Electronic posting is sufficient to meet this posting 		requirement as long as it otherwise meets the 		requirements of B.11.
 
(2)       The Board shall also provide this general notice to each 		staff member by including the notice in staff members’ 		handbooks or other written guidance to staff members 		concerning staff member benefits or FMLA leave rights, if 		such written materials exist, or by distributing a copy of the 	general notice to each new staff member upon hiring.  In 		either case, distribution may be accomplished 			electronically.
 
(3)       Access to and/or distribution of this Policy shall serve as 		school district notice to staff members of their rights 		pursuant to 29 CFR §825 et seq.
 
b.         Eligibility Notice
 
(1)       When a staff member requests FMLA leave, or when the 		Board acquires knowledge that a staff member's FMLA 		leave may be for an FMLA-qualifying reason, the Board 		must notify the staff member of the staff member's 			eligibility to take FMLA leave within five business days, 		absent extenuating circumstances.
 
c.         Designation Notice
 
(1)       The Board is responsible in all circumstances for 			designating leave as FMLA-qualifying, and for giving 		notice of the designation to a staff member. The Board 		must notify a staff member whether the leave will be 		designated and will be counted as FMLA leave within five 		business days absent extenuating circumstances.  
 
(2)       If the Board requires paid leave to be substituted for unpaid 		FMLA leave, or that paid leave taken under an existing 		leave plan be counted as FMLA leave, the Board must 		inform a staff member of this designation at the time of 		designating the FMLA leave.
 
12.       Local Board of Education Practices

a.         Substitution of Paid Leave
 
(1)       Whether a staff member is required to use sick time or any 		other accrued leave time concurrent with FMLA leave time 	will depend upon either the district’s practice or a provision 	in the district’s collective bargaining agreement, if 			applicable.
 
b.         Maintenance of Staff Member Benefits
 
(1)       The Board must maintain a staff member's coverage under 		any group health plan on the same conditions as coverage 		would have been provided if a staff member had been 		continuously employed during the entire FMLA leave 		period.
 
C.        Shared Provisions
 
1.         Interference with Family Leave Rights
 
The NJFLA and the FMLA prohibit interference with a staff member’s rights under the law, and with legal proceedings or inquiries relating to a staff member’s rights.  Unless permitted by the law, no staff member shall be required to take family leave or to extend family leave beyond the time requested.  A staff member shall not be discriminated against for having exercised his/her rights under the NJFLA and the FMLA nor discouraged from the use of family leave.
 
2.         Non-Tenured Teaching Staff
 
Family leave granted to a nontenured staff member cannot extend a staff member’s employment beyond the expiration of his/her employment contract.
 
3.         Record Keeping
 
The Superintendent or designee shall ensure the keeping of accurate attendance records that distinguish family leave from other kinds of leave so a staff member’s entitlement to NJFLA leave and FMLA leave can be properly determined. 
 
4.         Processing of Complaints
 
a.         New Jersey Family Leave Act
 
(1)       Any complaint alleging a violation of the NJFLA shall be 		processed in the same manner as a complaint filed under 		the terms of N.J.S.A. 10:5-1 et seq. and N.J.A.C. 13:4 		through the New Jersey Department of Law and Public 		Safety, Division on Civil Rights.
 
b.         Federal Family and Medical Leave Act (FMLA)
 
(1)       If there is a dispute between the Board and a staff member 		as to whether leave qualifies as FMLA leave, it should be 		resolved through discussion between the staff member and 		the Superintendent or designee.  Such discussions and the 		decision shall be documented by the Superintendent or 		designee.
 
(2)       A staff member also may file, or have another person file 		on his/her behalf, a complaint with the United States 		Secretary of Labor.  A complaint may be filed in person, by 	mail, or by telephone with the Wage and Hour Division, 		Employment Standards Administration, U.S. Department of 	Labor, at any local office of the Wage and Hour Division.
 
(3)       This Policy 1643 shall be posted on the school district 		website, in a manner accessible to all staff members and a 		

	hard copy shall be provided to all staff members annually 		prior to the beginning of the school year and upon initial 		employment in the school district during the school year. 

29 CFR §825 et seq.
29 CFR §785
N.J.S.A. 10:5-1;
N.J.S.A. 34:11B et seq.
N.J.A.C. 13:14-1 et seq.

Adopted:   4/27/21