Poms Connects - A Knowledge Sharing Community


Ask Poms: School Employee FMLA, FLSA, & ADA Questions

Do school employees get overtime for occasional extra duty (for example, chaperoning a school dance)?

Typically, if an employee works more than one job for an employer, the rule under Fair Labor Standards Act (FLSA) is that the employer must count across the board all of the employee’s work hours for each workweek. If those hours add up to more than 40, the employee is entitled to overtime pay even if the work was in a separate job and completely voluntary on the part of the employee.

However, the Section 7(p)(2) of the FLSA creates a limited exception to this rule for state and local government employees. In order to qualify under the exception, three conditions have to be met:

  1. The work must be performed solely at the employee’s option
  2. The employee must work in a different capacity from their regular employment
  3. The work must be performed only “occasionally” or “sporadically”

If all three of the above requirements are met, then the hours worked by the employee while in the voluntary extra assignment can be excluded when calculating for overtime hours. Be cautious, however, about what qualifies as “occasional” or “sporadic” work. 

For example, a school secretary takes tickets at a couple of homecoming games each season. As long as it is completely voluntary, this would probably be excluded when calculating for overtime. However, you can run into risks if the secretary takes tickets at every home game, because then it might not qualify as occasional or sporadic.   

One of my employees took FMLA leave during the spring semester stretching into summer. Do I count the days in the summer against their FMLA leave?

If the employee would not have been required to report for work and/or duty during the break then those days would not count. FMLA leave time only counts when the employee would otherwise be working. If clerical, maintenance, security, and some administrative employees are required to report to work during summer (or spring and winter breaks), and then those days will count towards their FMLA leave.

Or, for example, if your employee gives birth in July, then her twelve-week maternity FMLA leave does not start until the school year commences in August/September.

Can I make inquiries about my employee’s FMLA leave while they are on family medical leave?

Yea, but it is important to remember that these inquires can only be made to the employee, not their doctor. You can ask questions of the employee in order to confirm whether the leave needed or being taken qualifies for FMLA purposes. Also, the situation could warrant periodic reports from the employee on their status and intent to return to work after the leave.

Can a chiropractor certify FMLA leave for a chronic bad back?

First we have to determine whether or not a chiropractor is considered a “health care provider,” and the simple answer is yes, they can be. Of course, it isn’t that simple, as they are considered “health care providers” only to the extent that their work with the patient consists of “treatment consisting of manual manipulation of the spine to correct a subluxation as demonstrated by X-ray to exist.”

In other words; if medical certification is provided through a chiropractor there must be

  1. An actual x-ray of the back. If there is no x-ray then NO FMLA leave! The x-ray and treatment provided by the chiropractor must relate to subluxation of the spine*.

*Subluxation of the spine is defined medically as “…a partial abnormal separation of the articular surfaces of a joint.” It can also be called misalignment of the spine, specifically the vertebrae. 

If the above two factors are present, then the chiropractor can be considered a “health care provider” and the treatment as well as any time off due to incapacity from misalignment of the spine would be covered under the FMLA.

If an employee requests to extend their FMLA leave, what should I do?

If the circumstances in the employee’s previous FMLA certification have changed significantly, or if you receive information that casts doubt on what their stated reason was for the absence, you can notify the employee that you will need recertification within 15 calendar days. If the employee doesn’t provide the necessary recertification when there is a change in circumstances it can result in a claim of FMLA interference.

How can I make my school’s website ADA accessible?

There has been an increase in complaints, investigations, and lawsuits in the Office for Civil Rights in regards to website accessibility and ADA compliance. As you probably know, public school websites are required to be ADA compliant through Section 504 of the Rehabilitation Act of 1973 and Title II of the ADA. Currently, however, there is no technical standard for an ADA accessible website for public schools.  So what exactly does web-based information, accessible for everyone including the blind and handicap, look like exactly?

A good place to turn to is the recently adopted Web Content Accessibility Guidelines 2.0 (WCAG 2.0) that the federal agency uses at their standard. After carefully reviewing the WCAG 2.0 standards, it is suggested to perform an audit on your school’s website, using the standards as your guidelines. After identifying areas of opportunity and inaccessibility, you can formulate a plan to get the website compliant, as well as quarterly reviews to ensure the site stays in compliance. One suggestion is to talk with your school’s website provider and inquire as to what tools they might already have in place to address accessibility for all in the website.  

What is going on with the FLSA overtime rule???

On July 27, 2017 the Department of Labor (DOL) submitted a “request for information” on the overtime rule. This request is a way for the DOL to get feedback and public input on new rules or changes to existing rules.

The DOL is seeking public feedback on questions regarding the standard salary level that is purposed in the rule effectively identifies employees who may be exempt, or if a different level would be more appropriate. The DOL also wants feedback on whether or not changes to the duties test would be necessary in order to sync up the exemption to the salary level.

The cut-off for the feedback and public input is September 25, 2017.

In short; nothing has changed so far.  As of right now, the overtime rule is on hold. However, employers should continue to update their job descriptions and ensure that their exempt jobs meet one or more of the FLSA’s “white collar” duties tests.

Because the ADA, FLSA, and the FMLA have different stipulations for school employees, and because all are an interactive process, we always suggest reaching out to Poms Connects or an employment lawyer with any specific questions you may have.

Here are some other resources that might be able to help you:

  • The American Bar Association—every February they publish a comprehensive report of FMLA decisions handed down by federal courts in the previous year. The Federal Labor Standards Legislation Committee report can be accessed here.
  • National Employment Law Institute (NELI)—NELI hosts ADA & FMLA Compliance seminars every April in San Francisco, Washington, DC, and Chicago. A brochure for the seminars can be found here
  • The Department of Labor has released an Employer Guide to the Family Medical Leave Act that is very approachable and well-organized.
  • The Poms Connects website has several very good resources addressing many different issues. For example, here is an article about the FLSA for schools with a focus on volunteers and coaches. It is free to sign up, and the blog has frequent articles addressing new rules and regulations in employment law, among lots of other topics. Please contact pomsconnects@pomsassoc.com for more information or to sign up.

Disclaimer—Please Note: This blog/material is provided for general informational purposes only and is not a substitute for legal advice particular to your situation. Poms & Associates, Insurance Brokers Inc. and the author expressly disclaim all liability relating to actions taken or not taken based solely on the content of this information.

The author makes every effort to offer accurate and practical Human Resource management, employer, and workplace advice, both on this website and linked to from this website, but she is not an attorney. The content on this site, while authoritative, is not guaranteed for accuracy and legality, and is not to be construed as legal advice. Additionally, employment laws and regulations vary from state to state and country to country, so this site cannot be definitive on all of them in your workspace.

When in doubt, always seek legal counsel or assistance from State, Federal, or International governmental resources to make sure your legal interpretation and decisions are correct. The information on this site is for guidance, ideas, and assistance only.