Q & A: Firing employees who are out of leave

Q: Can we terminate an employee when he or she has exhausted all leave?

A: Some laws (e.g., the Family and Medical Leave Act (FMLA) and the Texas Workers’ Compensation Act) prohibit discrimination because an employee exercised his or her rights. As a result, a district is prohibited from terminating an employee because he or she filed a workers’ compensation claim and is absent from work or for taking leave under the FMLA. The reason for termination must be unrelated to those actions.

Districts that adopt and consistently apply neutral absence control policies can terminate an employee who exhausts all leave and show that the decision was not made for a prohibited reason. That’s because the district must routinely terminate every employee who has exhausted all leave, including contract employees.

The policy is considered neutral because it is applied to employees across the board, regardless of their personal circumstances. The bottom line is that the district must be able to demonstrate that it takes the same action whenever an employee is out of leave time. TASB recommends that districts that want to put such a policy in place work on it with their school attorney.

Districts that have adopted and consistently apply a neutral absence control policy have taken the first step in defending against claims that they have terminated employees for impermissible reasons.

Be forewarned that consistent application of the policy will not always be easy and requires unwavering commitment on the district’s part: Consider the cases of the individual with a work-related injury who has no accrued leave, the employee who exhausted FMLA or temporary disability leave, or the long-term employee who is unable to return to work because of a terminal illness. But consistency is imperative if the district wants to keep employee leave time under control and stay out of court.