Are Public, Private and Charter Schools Required to Provide Family and Medical Leave Under FMLA?

Early American red Brick Schoolhouse With White Door and american Flag Pole

Whether Public, Private or Charter -

Schools Must Comply With FMLA

Teachers and Other Employees of Schools, Whether Public, Private or Charter, Are Entitled to Family and Medical Leave Under the FMLA

The following excerpt from the May 10, 2021 decision of Haney-Fillipone v. Agora Cyber Charter School out of the Eastern District of Pennsylvania, authored by Judge Chad F. Kenney, succinctly summarizes the law of FMLA compliance where schools are concerned:

As a general matter, the FMLA applies to educational institutions so long as the other requirements are met. See 29 C.F.R. § 825.600(b) ("Educational institutions are covered by FMLA"); 29 C.F.R. § 825.104(a) ("Public as well as private elementary and secondary schools are [ ] covered employers."); see also Kobielnik v. W. Cape May Bd. of Educ., No. CV 13-03805 (RMB/JS), 2015 WL 12743598, at *2 (D.N.J. Mar. 11, 2015) (citing 29 C.F.R. § 825.600(b) in applying FMLA rules in suit against school board); Kordistos v. Mt. Lebanon Sch. Dist., No. CV 16-615, 2017 WL 3593882 (W.D. Pa. Aug. 21, 2017); Fiorentini v. William Penn Sch. Dist., 150 F. Supp. 3d 559, 570 (E.D. Pa.), aff'd, 665 F. App'x 229 (3d Cir. 2016) (noting there was "no dispute" that defendant school district was subject to the FMLA); Hubbard v. Pleasant Valley Sch. Dist., No. CIV.A. 3:CV-03-0797, 2006 WL 42093 (M.D. Pa. Jan. 6, 2006). Further, the FMLA has specific provisions for how the statute's leave requirements apply to schools due to schools' unique work calendars. See 29 U.S.C. 2618(a)(1)(A). It is clear from the face of section 2618 that it does not expand the definition of a "covered employer" under the FMLA. Rather, it presupposes that schools are covered. Courts have also found the FMLA applies to charter schools, not just traditional public schools, districts, and school boards. Callaway v. Acad. of Flint Charter Sch., 904 F. Supp. 2d 657, 668 (E.D. Mich. 2012) (denying defendant's summary judgment motion on teacher's FMLA claims for interference and retaliation against her charter school employer); see also Provence v. Avon Grove Charter Sch., No. CIV. A. 07-659, 2008 WL 2928314, at *12 (E.D. Pa. July 28, 2008) (finding that Pennsylvania charter school did not prejudice employee's FMLA right); Kelly v. Richard Wright Pub. Charter Sch., No. CV 16-1853 (TJK), 2019 WL 451348, at *4-7 (D.D.C. Feb. 4, 2019) (same).
Further, courts have held that school districts and school boards are "public agencies" under the FMLA. Hewett v. Willingboro Bd. of Educ., 421 F. Supp. 2d 814, 818 (D.N.J. 2006) (holding that the Defendant Board of Education was a "public agency" under the FMLA); Herman v. Princeton City Sch., No. C-1-96-358, 1997 WL 861836, at *1 (S.D. Ohio Sept. 23, 1997) (finding that "Princeton City Schools is a public agency . . . [and] an employer within the meaning of the Family and Medical Leave Act"); Wanamaker v. Westport Bd. of Educ., 899 F. Supp. 2d 193, 201-02 (D. Conn. 2012) ("it is apparent that the Board [of Education], a public agency, constitutes an employer under [29 U.S.C. § 2611] 4(A)(iii)"). Since these entities are all covered under the FMLA, the key here is whether Agora—as a public cyber charter—differs from public schools, school boards, and school districts in such a way that it would not fall into the same definition of "public agency."
The Court notes that how state law treats an entity is relevant to whether it is a "public agency" within the meaning of the FMLA. By referencing U.S. Code Title 20's definition of a "local educational agency," the FMLA explicitly incorporates how state laws define an educational entity. See 29 U.S.C. 2618(a)(1)(A) (cross-referencing 20 U.S.C. § 7801's definition of a "local educational agency"). 20 U.S.C. § 7801 defines local educational agency as "a public board of education or other public authority legally constituted within a State for either administrative control or direction of, or to perform a service function for, public elementary schools or secondary schools in a city, county, township, school district, or other political subdivision of a State." 20 U.S.C. § 7801(30)(A) (emphasis added); see Hewett v. Willingboro Bd. of Educ., 421 F. Supp. 2d 814, 818 (D.N.J. 2006) (noting that "[i]n New Jersey, the definition of `political subdivision' includes a `school district'" in holding that the defendant board of education was a "public agency" under the FMLA) (citing N.J.S.A. 52:27-BB-2). Since Agora exists within a framework of Pennsylvania law, how that law treats Agora is relevant to this Court's determination of whether Agora is covered under the EFMLEA.
Pennsylvania law treats a public charter school like Agora as a public entity similar to a school district in several significant respects, and supports a finding that Agora is "public agency" for FMLA and EFMLEA purposes. Charter schools are "independent public schools established and operated under a charter." 24 P.S. § 17-1703-A. Pennsylvania law defines both school districts and public charters as "bodies corporate." See 24 P.S. § 2-211 ("The several school districts in this Commonwealth shall be, and hereby are vested as, bodies corporate, with all necessary powers to enable them to carry out the provisions of this act"); 24 P.S. § 17-1714-A(a) ("A charter school established under this act is a body corporate and shall have all powers necessary or desirable for carrying out its charter"). Pennsylvania charter schools can "[s]ue and be sued, but only to the same extent and upon the same condition that political subdivisions and local agencies can be sued." 24 P.S. § 17-1714-A. Trustees of charter schools are "public officials." 24 P.S. § 17-1715-A. Further, charter schools are publicly funded because they receive their funding from the school districts where students attending the charter school reside. 24 P.S. § 17-1725-A(a). Cyber charter schools are regulated and subject to annual assessments by the Pennsylvania Department of Education. 24 P.S. § 17-1742-A.