Absences and Leave
There are many reasons that a worker might need to be absent, and each employee’s individual situation determines what type of leave applies. Additionally, some situations, such as a serious illness, can be covered under several different leave categories at the same time. In many situations, those different types of leave may run concurrently.
Many types of leave are regulated by either federal or state law, and individual school districts have no discretion as to when and how they are applied. However, many school districts provide leave in addition to these legally required leave options, and districts have much greater discretion to interpret when and how these local leave options are applied.
Governed by the Texas Education Code, personal leave is:
- Available to all public school employees.
- Cumulative from year to year.
- Transferable from district to district.
Employees are generally entitled to five personal leave days per school year. A district can require an employee to “earn” the days and can deduct “unearned days” from the five-day total if the employee does not work for the district for the full year. Part-time employees also receive five days, but if they work “half-days,” they also receive five “half-days” of personal leave.
Employees receive full pay for their primary duty, such as teaching. If the employee has a supplemental duty, such as coaching or driving a bus, that has additional daily compensation, the district may deduct this extra amount from the employee’s compensation when the employee is absent and using personal leave.
A district can deny a request for personal leave in some circumstances. Personal leave may be used for illness or some other circumstance outside of the employee’s control (termed “nondiscretionary leave”) or for a purpose within the employee’s control (termed “discretionary leave”). A district may impose restrictions on the use of discretionary leave but may not refuse a request based on the reason leave is requested. For example, district policies commonly prohibit taking discretionary personal leave during the first week of school, immediately before or after a holiday, when a certain number of staff will be out, or during standardized testing. Nondiscretionary leave cannot generally be denied, though the district can require proof of the need for the leave, such as a doctor’s note for illness, if allowed by local policy.
Sick leave accumulated prior to September 1, 1995 (when the Legislature changed the Texas Education Code to provide personal leave rather than sick leave) may only be used in cases of personal illness, illness of a family member, family emergency, or death in the immediate family.
Employees should consult employee handbooks or district policy manuals to find local policies explaining available benefits and how to apply for discretionary personal leave and report personal leave. It is important to know the rules; violations of the rules might lead to denial of leave and other more serious negative employment action.
Family and medical leave was established by a federal law, the Family and Medical Leave Act (FMLA), and is governed by federal regulations. As such, districts have very little discretion as to when and how to apply FMLA leave.
Availability of FMLA leave:
FMLA leave is available to all employees:
- Who work for employers with 50 or more employees; and
- Who have been employed at least 12 months and worked at least 1,250 hours during the last 12-month period. The regulations state that teachers are assumed to have worked 1,250 hours because time “off the clock,” such as grading papers and planning lessons, is counted toward the 1,250-hour total. Therefore, a district must be able to show that it is highly unlikely that a teacher could have worked the required hours in order to deny FMLA leave based on the hours-worked requirement.
FMLA leave benefits:
- FMLA leave is unpaid, unless accumulated personal or sick leave is available and used concurrently. Employers can require that personal and sick leave be used concurrently. Employers may also require other types of leave be used concurrently.
- Eligible employees may take up to 12 workweeks of FMLA leave in any 12-month period.
- Leave may be taken for serious health conditions affecting the employee or an immediate family member. The FMLA and regulations define what is a “serious health condition.” The definition includes most serious illnesses and many chronic illnesses as well.
- Leave may be taken for birth, adoption, or placement of a foster child. Leave may be taken at any time up to one year from the arrival of the child. If both spouses work for the same employer, only one 12-week period may be taken between the two spouses.
- In cases of serious health conditions affecting the employee or a family member, leave may be taken intermittently when necessary, but special rules apply to instructional personnel regarding the use of intermittent FMLA leave and restrict its use in some circumstances.
- Districts must continue to provide the same contributions to health insurance premiums during the FMLA leave period that were provided prior to the leave. If the employee could have returned to work at the end of leave but chose not to, they may be required to repay these health insurance benefits.
- FMLA leave taken by instructional personnel close to the end of a school term may be extended by the district to the end of the term.
- An employee is entitled to return to the same or an equivalent position as was held prior to leave. This usually requires a return to a position at the same location with the same duties and responsibilities—even if these duties and responsibilities are not covered under a contract.
- Attendance bonuses or other benefits may not be denied based on absence for FMLA.
- An employee cannot be disciplined for requesting or taking FMLA leave or discouraged from requesting or taking FMLA leave.
Applying for and using FMLA leave:
The FMLA provides that an employer can require an employee to justify a request for family and medical leave by requiring medical certification of the employee’s condition. This is usually done by requiring that the employee and the employee’s health practitioner fill out and return a form created by the U.S. Department of Labor. The employer can, through this process, learn what the medical condition is, though the employer is required to keep the information confidential.
If the need for family and medical leave is unexpected, the employee or family member simply needs to notify the employer as soon as reasonably possible. But the FMLA requires employees to notify their employer of known future need for leave, such as for planned surgery, in advance. Failure to provide the notice of “foreseeable” leave by the regulatory deadline can result in a denial of the request.
The regulations have specific definitions of terms such as “serious health condition” and “chronic” condition that can determine whether an absence qualifies for FMLA leave. Many of the provisions are not intuitive and require actions well in advance of the actual absence. So, you should seek legal guidance if you know you have a condition, such as migraines, that will lead you to be absent periodically in the future or if you expect you will have future absences for any reason and may need family and medical leave.
Established under the Texas Education Code, temporary disability leave:
- Is available to all full-time public school educators whose positions require a certificate (including most classroom aides).
- Is unpaid, unless accumulated sick or personal leave is available and used concurrently. May also run concurrently with FMLA leave.
- May last up to 180 calendar days or longer if allowed by the local district.
- Is available whenever a physical or mental condition interferes with performance of duties.
- Can be used for pregnancy as well as medical complications and/or physical recovery associated with pregnancy.
To request temporary disability leave, an educator must:
- Request leave from the superintendent or the superintendent’s designee.
- Provide a physician’s (licensed physician or a Christian Science practitioner) statement that:
- Confirms an inability to work;
- States a date for the leave to begin; and
- States a probable date of return.
- Educators may consult the employee handbook or local policy manual to find local policies explaining available benefits and how to apply for temporary disability leave, or they may request such information from their districts’ personnel offices.
- Employees must give at least 30 days’ notice of intent to return from leave along with a release from a physician.
- Employees must be returned to work at their previous campus as soon as a position is available but no later than the beginning of the next school year.
- Districts do not have to continue the same contributions to health insurance premiums during the leave period that were provided prior to the leave, unless the employee is also on FMLA leave.
- Employees may be placed on involuntary temporary disability leave when the school board determines, in consultation with a doctor, that an employee's physical or mental condition interferes with the performance of the employee's duties.
- May be paid if personal or sick leave is available.
- May be taken as unpaid leave under FMLA.
- May be taken as unpaid temporary disability leave during pregnancy and also for the length of the mother’s physical recovery if physical conditions interfere with ability to perform duties.
Local district policy may provide additional benefits. Employees may consult employee handbooks or district policy manuals to find local policies explaining available benefits and how to apply for maternity leave, or they may request such information from districts’ personnel offices.
Assault leave is available to any employee physically injured by an assault during the performance of regular school duties. An assault requires that the student (or other) acted recklessly in causing the injury but does not require that the student consciously intended to hurt the educator. This generally means that the student knew but consciously disregarded the likelihood that their actions could cause injury. However, if a student’s age or disability made them incapable of understanding that they could injure the employee, the law provides that the injured educator may still be eligible for assault leave.
An employee on assault leave is entitled to full pay between both assault leave and workers’ compensation benefits. The employee’s total benefits may not be more than 100% of the regular rate of pay. Absences are not deducted from personal or sick leave.
This type of leave may be taken for as long as is necessary to recuperate from physical injuries (up to two calendar years from date of assault). Assault leave is not available for psychological or emotional injuries. Employees must report all injuries promptly.
Districts must make reasonable accommodations for employees to participate in religious observances or practices, including making leave available. Leave may be unpaid, unless personal leave is available, although districts may provide paid leave. Attendance bonuses may not be denied based upon absence for religious observance.
Employees may consult employee handbooks or district policy manuals to find local policies explaining available benefits and how to apply for religious observance leave, or they may request such information from districts’ personnel offices.
Districts must provide leave to comply with court orders (jury duty summons or subpoenas). Employees should be paid normal daily compensation for jury duty. An employee’s accumulated personal leave may not be reduced for complying with a jury duty summons, and an employee may not be retaliated against for complying with a court order.
Employees who must comply with a court order may consult employee handbooks or district policy manuals to find local policies explaining available benefits and how to apply for court-order leave, or they may request such information from districts’ personnel offices.
In addition to the federal- and state-regulated leave options described above, many districts provide local sick leave or other local leave benefits for personal business, professional training, and bereavement. Some districts have also established sick leave banks or pools to provide employees with paid leave in addition to what they have personally accumulated.
Because these leave benefits are locally provided instead of being legally required, they are not regulated at all or are regulated much more loosely than the federal or state leave options. Districts are provided wide latitude in determining when and how to provide these benefits. Districts may also easily change the benefits they provide, such as reducing the number of sick leave days provided annually, though some limitations do apply.
Published/reviewed: February 11, 2021
The legal information provided here is accurate as of the date of publication. It is provided here for informative purposes only. Individual legal situations vary greatly, and readers needing individual legal advice should consult directly with an attorney. Please note: Rights based on the Texas Education Code may not apply to all. Many Texas Education Code provisions do not apply to public charter schools, and public school districts may have opted out of individual provisions through a District of Innovation plan. Eligible ATPE members may contact the ATPE Member Legal Services Department.