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U.S. Code as of:
01/19/04
Section 2618. Special rules concerning employees of local educational agencies
(a) Application
(1) In general
Except as otherwise provided in this section, the rights
(including the rights under section 2614 of this title, which
shall extend throughout the period of leave of any employee under
this section), remedies, and procedures under this subchapter
shall apply to -
(A) any "local educational agency" (as defined in section
7801 of title 20) and an eligible employee of the agency; and
(B) any private elementary or secondary school and an
eligible employee of the school.
(2) Definitions
For purposes of the application described in paragraph (1):
(A) Eligible employee
The term "eligible employee" means an eligible employee of an
agency or school described in paragraph (1).
(B) Employer
The term "employer" means an agency or school described in
paragraph (1).
(b) Leave does not violate certain other Federal laws
A local educational agency and a private elementary or secondary
school shall not be in violation of the Individuals with
Disabilities Education Act (20 U.S.C. 1400 et seq.), section 794 of
this title, or title VI of the Civil Rights Act of 1964 (42 U.S.C.
2000d et seq.), solely as a result of an eligible employee of such
agency or school exercising the rights of such employee under this
subchapter.
(c) Intermittent leave or leave on reduced schedule for
instructional employees
(1) In general
Subject to paragraph (2), in any case in which an eligible
employee employed principally in an instructional capacity by any
such educational agency or school requests leave under
subparagraph (C) or (D) of section 2612(a)(1) of this title that
is foreseeable based on planned medical treatment and the
employee would be on leave for greater than 20 percent of the
total number of working days in the period during which the leave
would extend, the agency or school may require that such employee
elect either -
(A) to take leave for periods of a particular duration, not
to exceed the duration of the planned medical treatment; or
(B) to transfer temporarily to an available alternative
position offered by the employer for which the employee is
qualified, and that -
(i) has equivalent pay and benefits; and
(ii) better accommodates recurring periods of leave than
the regular employment position of the employee.
(2) Application
The elections described in subparagraphs (A) and (B) of
paragraph (1) shall apply only with respect to an eligible
employee who complies with section 2612(e)(2) of this title.
(d) Rules applicable to periods near conclusion of academic term
The following rules shall apply with respect to periods of leave
near the conclusion of an academic term in the case of any eligible
employee employed principally in an instructional capacity by any
such educational agency or school:
(1) Leave more than 5 weeks prior to end of term
If the eligible employee begins leave under section 2612 of
this title more than 5 weeks prior to the end of the academic
term, the agency or school may require the employee to continue
taking leave until the end of such term, if -
(A) the leave is of at least 3 weeks duration; and
(B) the return to employment would occur during the 3-week
period before the end of such term.
(2) Leave less than 5 weeks prior to end of term
If the eligible employee begins leave under subparagraph (A),
(B), or (C) of section 2612(a)(1) of this title during the period
that commences 5 weeks prior to the end of the academic term, the
agency or school may require the employee to continue taking
leave until the end of such term, if -
(A) the leave is of greater than 2 weeks duration; and
(B) the return to employment would occur during the 2-week
period before the end of such term.
(3) Leave less than 3 weeks prior to end of term
If the eligible employee begins leave under subparagraph (A),
(B), or (C) of section 2612(a)(1) of this title during the period
that commences 3 weeks prior to the end of the academic term and
the duration of the leave is greater than 5 working days, the
agency or school may require the employee to continue to take
leave until the end of such term.
(e) Restoration to equivalent employment position
For purposes of determinations under section 2614(a)(1)(B) of
this title (relating to the restoration of an eligible employee to
an equivalent position), in the case of a local educational agency
or a private elementary or secondary school, such determination
shall be made on the basis of established school board policies and
practices, private school policies and practices, and collective
bargaining agreements.
(f) Reduction of amount of liability
If a local educational agency or a private elementary or
secondary school that has violated this subchapter proves to the
satisfaction of the court that the agency, school, or department
had reasonable grounds for believing that the underlying act or
omission was not a violation of this subchapter, such court may, in
the discretion of the court, reduce the amount of the liability
provided for under section 2617(a)(1)(A) of this title to the
amount and interest determined under clauses (i) and (ii),
respectively, of such section.
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