Measure would expand FMLA eligibility for education support staff

On September 9, U.S. Congressman Sean Casten and U.S. Senator Tammy Duckworth introduced the ESP, Paraprofessional, and Education Support Staff Family Leave Act (S 2738 and H 5222). This bipartisan legislation seeks to expand the federal Family and Medical Leave Act (FMLA) to cover education support professionals (ESPs).

FMLA eligibility

There are three basic eligibility criteria that an employee of a covered employer must meet. An employee must:

• Have been employed by the employer for at least 12 months,
• Have worked at least 1,250 hours for the employer during the 12 months before leave is to begin, and
• Work at a worksite where there are at least 50 company employees within 75 miles of the worksite.

Who are ESPs?

Currently, because of their schedules and the limited school year, many ESPs don’t meet the 1,250-hour threshold needed to qualify for unpaid leave under the FMLA. This keeps them from being able to take FMLA leave for themselves or to care for a family member.

ESP employees include those who provide school services such as:

• Clerical and administrative,
• Transportation,
• Food and nutrition,
• Custodial and maintenance,
• Health and student,
• Technical, or
• Those related to skilled trades.

The measure would add a special eligibility criterion that educational employees would be considered to meet the 1,250-hour threshold if they’ve worked hours equal to not less than 60 percent of the applicable total monthly hours expected for their job description and duties, as assigned for the previous school year.

What’s next?

If this act takes effect, the U.S. Department of Labor (DOL) would need to develop methods for calculating the leave.

Then, employers would need to make and file information with the DOL specifying the total monthly hours expected for employees’ job descriptions and duties for each school year. The DOL could create regulations explaining this.

While this measure is only in the beginning stages of the legislative process and might not pass, employers should be aware that Congress still has leave law changes on its radar.