Your Leave, Explained
By: Paul Tapp, ATPE Managing Attorney
As an educator, you already know that you receive different types of leave, including state and local days, family and medical leave, and assault leave. But did you know there are rules dictating when each of these can be used? Different circumstances require different types of leave, and different rules govern the use of each type. Let’s take a look at a few of the most common situations you may encounter and the rules that apply to each.
I have leave, but my principal says I can’t use it.
All public school employees receive five state leave days per year, which accumulate from year to year if not taken. So, most educators regularly have leave days available to use. But not all leave days are created equal. The law allows districts to distinguish between discretionary leave (taken by choice) and non-discretionary leave (taken out of necessity, most commonly for illness).
The law allows a district to restrict employees’ use of discretionary leave. Restrictions must be listed in official school board policy. Most board policies require prior approval, prohibit leave on certain days, and restrict the number of days that can be taken or the number of staff that can be out on a given day. So, an educator who wants to take a trip or attend the graduation of a family member (discretionary leave) might find their request denied, even though they have state leave days available.
Other laws, such as the Family and Medical Leave Act, may apply if the educator or a close family member becomes ill, even if the absence could be considered voluntary. Any local days provided by the district are subject to district policy. Most local policies allow their use only as non-discretionary sick days.
I am ready to retire and want to use my days, but HR says I can’t.
Since state days accumulate, many educators find themselves with a large balance of unused days at retirement. Some are surprised to learn they cannot automatically use their days. Unless the educator has a reason (usually medical) to need non-discretionary leave days, the district can legally refuse to allow them to use their leave before they retire. A district can legally allow a staff member to use unused leave before retirement, but they are not required to unless it is non-discretionary leave.
Many districts do compensate employees for unused leave. However, these are local policies that can vary from district to district.
I was only out one day, but my supervisor says I need a doctor’s note to return.
When an employee calls in sick, they may be required to bring in a doctor’s note. This is because sick days are covered under non-discretionary leave. The employee does not have to get prior approval for the absence and can be absent on days that they could not be if they asked for discretionary leave.
Most districts’ policies require employees to bring in a doctor’s note if they have been out for three consecutive days or more. Less well-known, most policies also require a note if the district has a reason to be suspicious about the absence.
The ATPE Member Legal Services team has received calls from educators who were denied a requested discretionary day and then simply called in sick for that day. That raised suspicions as to whether the member was actually sick. A district, like any employer, can take negative employment action if it appears that an employee has called in sick when they were not. An employer can also investigate an absence, even if the absence was for less than three days.