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This introductory page outlines the contents of the leaves
and absences policy. See the following sections for statutory provisions on: |
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SECTION I |
Sick/Personal Leave
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SECTION II |
Military Leave
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SECTION III |
Miscellaneous
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STATE PERSONAL LEAVE |
A state minimum personal leave program consisting of five
days per year of personal leave, with no limit on accumulation and no
restrictions on transfer among districts, shall be provided for District
employees. The District may provide additional personal leave beyond this
minimum. The Board may adopt a policy governing an employee's use of personal
leave granted under this subsection, except that the policy may not restrict
the purposes for which the leave may be used. Education Code 22.003(a)
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District employees retain any sick leave accumulated as
state minimum sick leave under former Section 13.904(a) of the Education
Code. Former Section 13.904(c), Education Code, continues to govern the use
of that sick leave. Sick leave shall be used only for the following:
Acts of the 74th Legislative Session, Senate Bill 1, Sec. 66 |
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FORMER EDUCATION SERVICE CENTER (ESC) EMPLOYEES |
The District shall accept the sick leave accrued by an
employee who was formerly employed by a regional education service center
(ESC), not to exceed five days per year for each year of employment. Education
Code 8.007 |
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ASSAULT LEAVE |
In addition to all other days of leave, a District
employee who is physically assaulted during the performance of regular duties
is entitled to the number of days of leave necessary to recuperate from
physical injuries sustained as a result of the assault. At the request of an
employee, the District must immediately assign the employee to assault leave.
Days of assault leave may not be deducted from accrued personal leave.
Assault leave may not extend more than two years beyond the date of the
assault. Following an investigation of the claim, the District may change the
assault leave status and charge the leave against the employee's accrued
personal leave or against the employee's pay if insufficient accrued personal
leave is available. Notwithstanding any other law, assault leave benefits due to an employee
shall be coordinated with temporary income benefits due from workers'
compensation so the employee's total compensation from temporary income
benefits and assault leave policy benefits will equal 100 percent of the
employee's weekly rate of pay. |
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A District employee is physically assaulted if the person
engaging in the conduct causing injury to the employee:
Education Code 22.003(b), (c) |
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SICK LEAVE DIFFERENT FROM TEMPORARY DISABILITY LEAVE |
An employee's entitlement to sick leave is unaffected by
any concurrent eligibility for a leave of absence for temporary disability.
The two types of leave are different, and each must be granted by its own
terms. Atty. Gen. Op. H-352 (1974) |
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PREGNANCY |
Disabilities caused or contributed to by pregnancy,
childbirth, or related medical conditions, for all job-related purposes,
shall be treated the same as disabilities caused or contributed to by other
medical conditions, under any health or disability insurance or sick leave
plan available in connection with employment. 29 CFR 1604.10(b) |
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TEMPORARY DISABILITY |
Each full-time educator shall be given a leave of absence
for temporary disability at any time the educator's condition interferes with
the performance of regular duties. The contract or employment of the educator
may not be terminated while the educator is on a leave of absence for
temporary disability. For purposes of temporary disability leave, pregnancy
is considered a temporary disability. |
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A request for a leave of absence for temporary disability
must be made to the Superintendent. The request must:
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The Board may adopt a policy providing for placing an educator
on leave of absence for temporary disability if, in the Board's judgment in
consultation with a physician who has performed a thorough medical
examination of the educator, the educator's condition interferes with the
performance of regular duties. The educator shall have the right to present
to the Board testimony or other information relevant to the educator's
fitness to continue in the performance of regular duties. |
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The educator shall notify the Superintendent of a desire
to return to active duty no later than the 30th day before the expected date
of return. The notice must be accompanied by a physician's statement
indicating the educator's physical fitness for the resumption of regular
duties. |
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An educator returning to active duty after a leave of
absence for temporary disability is entitled to an assignment at the school
where the educator formerly taught, subject to the availability of an
appropriate teaching position. In any event, the educator shall be placed on
active duty no later than the beginning of the next school year. A principal
at another campus voluntarily may approve the appointment of an employee who
wishes to return from leave of absence. However, if no other principal
approves the assignment by the beginning of the next school year, the
District must place the employee at the school at which the employee formerly
taught or was assigned. Atty. Gen. Op. DM-177 (1992) |
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The Superintendent shall grant the length of leave of
absence for temporary disability as required by the individual educator. The
Board may establish a maximum length for a leave of absence for temporary
disability, but the maximum length may not be less than 180 calendar days. Atty.
Gen. Op. H-352 (1974) Education Code 21.409 |
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FEDERAL FAMILY AND MEDICAL LEAVE ACT (FMLA) |
An employee of a district having 50 or more employees
within 75 miles of the worksite who has been employed by the District for at
least 12 months and for 1,250 hours during the previous 12-month period shall
be entitled to a total of 12 workweeks of leave, without loss of any
employment benefit accrued prior to the beginning of the leave, during any
12-month period for one or more of the following reasons:
29 U.S.C. 2611(2), 2612(a) |
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METHODS FOR DETERMINING ENTITLEMENT PERIOD |
The District is permitted to choose any one of the
following methods for determining the 12-month period for which the 12-week
leave entitlement occurs:
29 CFR 825.200(b)(1)-(4) |
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NOTICE TO EMPLOYEES |
The District shall post and keep posted in conspicuous
places on each campus where notices to employees are usually posted, a notice
approved by the Secretary of Labor that sets out excerpts from or summaries
of the Family and Medical Leave Act and information pertaining to the filing
of a charge. 29 U.S.C. 2619 If the District's workforce is comprised of a significant portion of workers
who are not literate in English, the District shall be responsible for
providing the information required by the notice in a language in which the
employees are literate. 29 CFR 825.300(c) |
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SERIOUS HEALTH CONDITION |
A "serious health condition" that entitles an
employee to FMLA leave means an illness, injury, impairment, or physical or
mental condition that involves:
29 CFR 825.114(a) |
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For FMLA leave purposes, a "health care
provider" is defined as any of the following:
29 CFR 825.118 |
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MAINTENANCE OF HEALTH BENEFITS |
During any period that an eligible employee takes FMLA
leave, the District shall maintain coverage under any "group health
plan" for the duration of the leave at the level and under the
conditions coverage would have been provided if the employee had continued in
active duty with the District. 29 U.S.C. 2614(c)(1) |
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The District may recover its share of health care premiums
paid during a period of FMLA leave if an employee fails to return to work
after his or her FMLA leave entitlement has been exhausted or expires, unless
one of the following conditions exists:
When an employee fails to return to work, except for the reasons stated
above, health premiums paid by the District during a period of FMLA leave are
a debt owed the District by the nonreturning employee, and may be recovered
by the District through deduction of any sums due the employee or through
legal action. 29 U.S.C. 2614(c)(2); 29 CFR 825.213(a), (f) |
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DISCRIMINATION PROHIBITED |
The FMLA prohibits interference with an employee's rights
under the law, and with legal proceedings or inquiries relating to employee's
rights. An employer is prohibited from interfering with, restraining, or
denying the exercise of (or attempts to exercise) any rights provided by the
FMLA. An employer is prohibited from discriminating against employees or
prospective employees who have used FMLA. 29 CFR 825.220 |
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INTERMITTENT LEAVE |
An eligible employee other than an instructional employee
may take leave intermittently or on a reduced leave schedule when medically
necessary to care for a spouse, parent, or child or to receive planned
medical treatment for himself or herself. 29 U.S.C. 2612(b) |
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Intermittent leave is FMLA leave taken in separate blocks
of time due to a single qualifying reason. A reduced leave schedule reduces
the usual number of working days per workweek or hours per workday. The
District may limit leave increments to the shortest period of time that its
payroll system uses to account for absences or use of leave, provided it is
one hour or less. An employee may not be required to take more FMLA leave
than necessary to address the circumstance that precipitated the need for the
leave, unless the employee is an eligible instructional employee whose
request meets the conditions below. 29 CFR 825.203 (a), (d) |
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An eligible instructional employee who requests leave to
care for a spouse, parent, or child or because of his or her own serious
health condition that is foreseeable based on planned medical treatment and
who 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, may be
required to choose either to:
29 U.S.C. 2618(c) "Instructional employees" are those whose principal function is
to teach and instruct students in a class, a small group, or an individual
setting. This term includes not only teachers, but also athletic coaches,
driving instructors, and special education assistants, such as signers for
the hearing impaired. It does not include teacher assistants or aides who do
not have as their principal job actual teaching or instruction, nor does it
include personnel such as counselors, psychologists, or curriculum
specialists. It also does not include cafeteria workers, maintenance workers,
or bus drivers. 29 CFR 825.600(c) |
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The District may allow any of its employees to take
intermittent leave for child care and/or adoption purposes. 29 U.S.C.
2618(c)(2) |
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END-OF-TERM LEAVE |
When an instructional employee requests leave near the end
of a semester, the District may impose the following restrictions on the
timing of a return to duty:
If the District requires an employee to take leave until the end of an
academic term, only the period of leave until the employee is ready and able
to return to work shall be charged against the employee's FMLA entitlement. 29 U.S.C. 2618(d); 29 CFR 825.600(c), 825.602, 825.603(b) |
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BOTH SPOUSES EMPLOYED IN DISTRICT |
A husband and wife who are eligible for FMLA leave and are
both employed in the District may be limited to a combined total of 12 weeks
of leave during any 12-month period if the leave is taken:
When the husband and wife both use a portion of the total 12-week
entitlement for one of the purposes noted above, each spouse shall be
entitled to the difference between the amount he or she has taken individually
and 12 weeks of FMLA leave for a purpose other than those listed above. 29 U.S.C. 2612(f); 29 CFR 825.202 |
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NOTICE BY EMPLOYEES |
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An employee shall provide at least 30 days' notice before
FMLA leave is to begin if the need for leave is foreseeable based on the
expected birth, placement for adoption or foster care, or planned medical
treatment for a serious health condition of the employee or of a family
member. If 30 days' notice is not practicable, such as because of not knowing
approximately when leave will be required to begin, a change in
circumstances, or a medical emergency, notice must be given as soon as
practicable. "As soon as practicable" means as soon as possible and practical
taking into account all of the facts and circumstances in the individual
case. Ordinarily, it would mean at least verbal notification to the employer
within one or two business days of when the need for leave becomes known to
the employee. 29 CFR 825.302 |
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When the need for leave, or its approximate timing, is not
foreseeable, an employee shall provide notice to the District as soon as
practicable under the facts and circumstances of the particular case.
Ordinarily, notice shall be provided within no more than one or two working
days of learning of the need for leave. Notice should be provided either in
person or by telephone, telegraph, "fax" machine, or other
electronic means. 29 CFR 825.303 |
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Employees are not required to expressly invoke the FMLA's
protection when notifying the District of their need for FMLA leave. Manuel
v. Westlake Polymers Corp., 66 F.3d 758 (5th Cir. 1995). |
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MEDICAL CERTIFICATION |
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The District may require a certification issued by the
health care provider of the spouse, child, parent, or employee that the
employee is needed to care for the spouse, child, or parent or, in case of
leave for the employee's condition, that the employee is unable to perform
the functions of his or her position. The certification shall include the
date on which the serious health condition began, the probable duration of
the condition, and the appropriate medical facts within the provider's
knowledge regarding the condition. The employee shall in a timely manner
provide a copy of the certification to the District. 29 U.S.C. 2613 |
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RECERTIFICATION |
For pregnancy, chronic, or permanent/long-term conditions
under the continuing supervision of a health care provider, the
District may request recertification no more often than every 30 days, unless
more frequent recertification is warranted because:
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The employee must provide the requested recertification to
the District within the time frame requested by the District (which must
allow at least 15 days to submit a recertification), unless it is not
practicable under the particular circumstances to do so despite the
employee's diligent, good-faith efforts. Any recertification requested by the District shall be at the employee's
expense, unless the District provides otherwise. No second or third opinion
on recertification may be required. 29 U.S.C. 2613(e); 29 CFR 825.308 |
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CONCURRENT USE OF PAID LEAVE AND FMLA LEAVE |
The District may designate any paid leave to which the
employee is entitled as substituting for all or some portion of the
employee's FMLA leave entitlement. Once the District has acquired knowledge
that the leave is being taken for an FMLA-required reason, the District must
promptly (within two business days absent extenuating circumstances) notify
the employee that the paid leave is designated and will be counted as FMLA
leave. 29 U.S.C. 2612(d)(2); 29 CFR 825.208(b)(1) |
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The provision for substituting an employee's paid leave
does not apply to a workers' compensation absence. However, the District may
not deny use of accrued paid leave to an employee who is on FMLA leave and receiving
workers' compensation benefits. 29 CFR 825.207(d)(1), (2); Atty. Gen. Op.
JC-40 (1999) |
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RETURN TO WORK |
The District may uniformly require, as a prerequisite for
reinstating employees whose FMLA leave was due to their own serious health
condition, medical certification of their ability to resume work. 29
U.S.C. 2614(a)(4) |
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An employee who takes FMLA leave under these provisions is
entitled to be restored to the position held when the leave commenced or to
an equivalent position with equivalent employment benefits, pay, and other
terms and conditions of employment. The determination of how an employee is
restored to an equivalent position is based on the District's established
policies and practices that clearly explain the employee's restoration rights
on return from leave. 29 U.S.C. 2614(a)(1), 2618(e); 29 CFR 825.604 |
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DENIAL OF RESTORATION |
The District may deny restoration to "key
employees," as described below, and may delay restoration to any
employee who fails to provide a fitness-for-duty certificate to return to
work, if such is required by the District. |
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A "key employee" is a salaried FMLA-eligible
employee who is among the highest paid ten percent of all District employees within
75 miles of the employee's worksite. Key employees may be denied restoration
to their original or equivalent positions under the following conditions:
29 U.S.C. 2614(b); 29 CFR 825.216, 825.217, 825.219, 825.312(c) |
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FEDERAL LEAVE FOR MILITARY SERVICE |
Any person who is absent from a position of employment by
reason of voluntary or involuntary service in the uniformed services (the
Armed Forces, the Army National Guard and the Air National Guard when engaged
in active duty for training, inactive duty training, or full-time National
Guard duty, the commissioned corps of the Public Health Services, and any
other category of persons designated by the President in time of war or
emergency) shall be entitled to certain reemployment rights and benefits
under the Uniformed Services Employment and Reemployment Rights Act of 1994
(USERRA) if:
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A person who is reemployed under this act is entitled to
the seniority and other rights and benefits determined by seniority that the
person had on the date of the commencement of service in the uniformed
services plus the additional seniority and rights and benefits that such
person would have attained if the person had remained continuously employed. |
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The District is not required to reemploy a person if:
38 U.S.C. 4301, et. seq. |
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STATE LEAVE FOR MILITARY SERVICE |
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All employees of the District who are members of the state
military forces or of the reserve components of the United States Armed
Forces shall be granted a paid leave of absence from their duties without
loss of time, efficiency rating, vacation time, personal time, sick leave, or
salary on all days during which they are engaged in authorized training or
duty ordered or authorized by proper authority, not to exceed 15 workdays in
a federal fiscal year. Gov't Code 431.005(a), (b) |
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A member of the state military forces who is ordered to
active state duty by the governor or other proper authority under state law
is entitled to the same benefits and protections provided to persons
performing service in the uniformed services under 38 U.S.C. 4301-4313 and
4316-4319 and to persons in the military service of the United States under
50 App. U.S.C. 501-536, 560, and 580-594, as those laws existed on April 1,
2003. Gov't Code 431.017 Such employees who are ordered to duty by proper authority shall be
restored, when relieved from duty, to the position held by them when ordered
to duty. Gov't Code 431.005(c) |
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Any employee, other than a temporary employee, who leaves
a position with the District to enter active military service is entitled to
be reemployed by the District in the same position held at the time of the
induction, enlistment, or order, or to a position of similar seniority,
status, and pay. To be entitled to reemployment, the employee must be
discharged, separated, or released from active military service under
honorable conditions not later than the fifth anniversary after the date of
induction, enlistment, or call to active military service and must be
physically and mentally qualified to perform the duties of the position. Gov't
Code 613.001(3), 613.002 An employee who cannot perform the duties of the position because of a
disability sustained during military service is entitled to reemployment in
the District in a position that the employee can perform and that has like
seniority, status, and pay as the former position or the nearest possible
seniority, status, and pay. Gov't Code 613.003 To be reemployed, a veteran of the military must apply for reemployment
not later than the 90th day after the date the veteran is discharged or
released from active military service. Application must be made in writing to
the Superintendent and have attached to it evidence of the veteran's
discharge, separation, or release from military service under honorable
conditions. Gov't Code 613.004 A person reemployed after active military service shall not be discharged
without cause before the first anniversary of the date of the reemployment. Gov't
Code 613.005 "Military service" means service as a member of the Armed Forces
of the United States, a reserve component of the Armed Forces of the United
States, the Texas National Guard or the Texas State Guard. Gov't Code
613.001(2) |
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An employee with available personal leave is entitled to
use the leave for compensation during a term of active military service. This
provision applies to any personal or sick leave available under former law or
provided by local policy. The District may adopt a policy providing for paid leave for active
military service as part of the consideration of employment. Education Code 22.003(d), (e) |
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RELIGIOUS OBSERVANCES |
The District shall reasonably accommodate an employee's
request to be absent from duty in order to participate in religious
observances and practices, so long as it does not cause undue hardship on the
conduct of District business. Such absence shall be without pay unless
applicable paid local leave is available. 42 U.S.C. 2000e(j), 2000e-2(a); Ansonia
Bd. of Educ. v. Philbrook, 479 U.S. 60, 107 S.Ct. 367 (1986); Pinsker
v. Joint Dist. No. 28J of Adams and Arapahoe Counties, 735 F.2d 388 (10th
Cir.1984) |
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COMPLIANCE WITH A SUBPOENA |
The District may not discharge, discipline, or penalize in
any manner an employee because the employee complies with a valid subpoena to
appear in a civil, criminal, legislative, or administrative proceeding. Labor
Code 52.051(a) |
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JURY DUTY |
The District may not discharge, discipline, reduce the
salary of, or otherwise penalize or discriminate against an employee because
of the employee's compliance with a summons to appear as a juror. For each
regularly scheduled workday on which a nonsalaried employee serves in any
phase of jury service, the District shall pay the employee the employee's
normal daily compensation. An employee's accumulated personal leave may not
be reduced because of the employee's service in compliance with a summons to
appear as a juror. Education Code 22.006 |
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DEVELOPMENTAL LEAVES OF ABSENCE |
The Board may grant a developmental leave of absence for
study, research travel, or other suitable purpose to an employee working in a
position requiring a permanent teaching certificate who has served in the
District at least five consecutive school years. A developmental leave of absence may be granted for one school year at
one-half regular salary or for one-half of a school year at full regular
salary. Payment to the employee shall be made periodically by the District in
the same manner, on the same schedule, and with the same deductions as if the
employee were on full-time duty. An employee on developmental leave shall continue to be a member of the
Teacher Retirement System of Texas and shall be an employee of the District
for purposes of participating in programs, holding memberships, and receiving
benefits afforded by employment in the District. Education Code 21.452 |
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ABSENCE CONTROL |
Uniform enforcement of a reasonable absence-control rule
is not retaliatory discharge. For example, a district that terminates an
employee for violating a reasonable absence-control provision cannot be
liable for retaliatory discharge as long as the rule is uniformly enforced. Continental
Coffee Products Co. v. Cazarez, 937 S.W.2d 444 (Tex. 1996) (workers'
compensation discrimination case); Texas Division-Tranter, Inc. v.
Carrozza, 876 S.W.2d 312 (Tex. 1994) (workers' compensation
discrimination case); Swearingen v. Owens-Corning Fiberglas Corp., 968
F.2d 559 (5th Cir. 1992) (workers' compensation discrimination case); Howell
v. Standard Motor Prods., Inc., 2001 U.S. Dist LEXIS 12332 (N. D. Tex.
2001) (Family and Medical Leave Act case); Specialty Retailers v.
DeMoranville, 933 S.W.2d 490 (Tex. 1996) (age discrimination case); Gonzalez
v. El Paso Natural Gas Co., 40 F.E.P. Cases (BNA) 353 (Tex. App.-El Paso
1986, no pet.) (sex discrimination case) [Some employees may have protected status even after the expiration of all
other leave. See CRE and DAA.] |
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DATE ISSUED: 09/30/2003 |
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This online presentation of your
district's policy is an electronic representation of TASB's record of the
district's currently adopted policy manual. It does not reflect updating
activities in progress. The official, authoritative manual is available for
inspection in the office of the Superintendent. [See BF (LOCAL) for further
information.] |