Temporary Disability Leave and eligibility

by Karen Dooley

Q: What is Temporary Disability Leave (TDL) and who is eligible?

A: Texas Education Code (TEC) §21.409 provides each full-time educator employed by a school district a leave of absence for temporary disability at any time the educator’s condition interferes with the performance of regular duties. Pregnancy and conditions related to pregnancy are treated the same as any other temporary disability. The purpose of TDL is to provide a measure of job protection to full-time educators who cannot work for a continuous, extended period of time because of mental or physical disability of a temporary nature.

Eligibility

Some districts expand the eligibility beyond TEC. Unless Policy DEC (LOCAL) states otherwise, TDL is only available to individuals in a position that requires certification issued by the State Board for Educator Certification (SBEC) (i.e., superintendent, principal, assistant principal, counselor, diagnostician, librarian, and instructional aide). The requirement for an individual to be certified is established by TEC, SBEC rule, or the local district.

Designation

An employee must make a request and receive approval for TDL. A physician’s statement must confirm the employee’s inability to work and provide an estimated date of return. Considerations for establishing a consistent practice for placing an employee on TDL include determining:
  • what will be considered a request (e.g., any request or need for leave of absence due to a medical condition)
  • if a specific form will be required
  • the type of medical certification and statement of probable date of return that will be required

Involuntary placement

If an educator’s medical condition interferes with the performance of his or her regular duties, the individual may be placed on an involuntary TDL without consent. Based on a superintendent’s recommendation, the board shall place an eligible employee on TDL if the board determines, in consultation with the physician who performed the medical examination, the employee’s condition interferes with the performance of regular duties.

In accordance with Policy DGBA (LOCAL), an employee may file a complaint disputing their placement on TDL. The employee may present testimony or other relevant information to the board regarding their fitness to perform regular duties.

Length of leave

TEC establishes the maximum length of TDL as 180 calendar days. Some districts may establish a longer maximum in local policy. The amount of time granted is determined by the medical need established in the medical certification. For example, a teacher requiring six to eight weeks to recover from a pregnancy would be limited to six to eight weeks of TDL.

Counting TDL

TDL is granted per incident as one continuous block of time and is not intended to be taken on an intermittent or reduced schedule basis. It’s the only leave recorded in calendar days. This means the nonwork days, such as weekends, holidays, and extended breaks (including spring, winter, and summer breaks), are counted toward the employee’s total leave entitlement. As a result, an employee’s TDL may span two school years. In addition, placement on TDL is not limited to a single leave period per school or calendar year.

Other provisions

Most districts require TDL to run concurrent with other district paid leave and Family Medical Leave (FML). This information may be found in Policy DEC (LOCAL).

TDL is an unpaid leave. If an employee is only eligible for TDL, districts are not required to contribute to the employee’s health insurance premium. Employees may continue the group health care coverage by paying the total premium themselves.

Return-to-Work

An employee must submit a request to return to work at least 30 days prior to the anticipated return-to-work, when applicable. This request must include a physician’s statement regarding the employee’s ability to perform his or her regular work duties.

Although TDL provides an educator with a guarantee to return to work the following school year, it does not guarantee the employee will be returned to the same position previously held prior to TDL. Reinstatement requirements at the end of TDL include the following:
  • The employee must be reinstated to the school he or she was previously assigned, if an appropriate assignment is available.
  • If an appropriate assignment is not available, the educator may be assigned to another campus, subject to the approval of the campus principal.
  • If a position is not available at another campus before the end of the school year, the employee must be reinstated to a comparable position at the original campus at the beginning of the next school year.
Additional information about TDL and other types of leave are available in the HR Library and The Administrator’s Guide to Managing Leaves and Absences (available in the TASB Store).
 

Accessibility and translation crucial to district-employee communication

by Zach DiSchiano
 
Consider all the different pieces of information, both physical and digital, districts make available to their employees.
 
There are pay stubs, compensation statements, FMLA forms, job applications, and many other items district staff members access routinely. That’s the key word—access, or accessibility. Can everyone, regardless of disabilities or language barriers, acquire the information they need? Or is the information districts disseminate only comprehensible to one segment of the workforce?

Why accessibility matters

It’s important for HR staff to ask questions internally about what their district is doing to accommodate employees. An increasing reliance on the internet as a primary source for employee communication has compelled districts to make their web content more accessible.
 
While the Department of Justice (DOJ) hasn’t made any official rules regarding website accessibility, there are still laws requiring districts to improve their online functionality.
 
The Americans with Disabilities Act (ADA) and Section 504 require public entities to ensure equal access to all online programs, services, and activities for individuals with disabilities unless doing so would result in undue financial and administrative burden or fundamentally alter those programs, services, or activities.

Consequences

Districts that don’t accommodate individuals with disabilities or language barriers are vulnerable to formal complaints from employees, which could lead to an Office of Civil Rights (OCR) or DOJ investigation under ADA and Section 504. Subsequently, districts could face substantial settlement costs.
 
Two years ago, Seattle Public Schools settled a lawsuit estimated to cost the district between $665,440 and $815,400 to make its website more accessible, hire an accessibility coordinator, and properly train staff members. This is basically a worst-case scenario and a result of underestimating the importance of a user-friendly website.
 
The Seattle case shouldn’t cause districts to reverse course entirely, like the University of California at Berkeley did earlier this year. The university removed 20,000 videos from its website in response to the DOJ’s demand for closed captioning, which ultimately reduced accessibility for everyone—certainly not the intent of the government’s guidance.

Taking the first steps

Districts should try to simplify their web content and refrain from implementing too complex a design for aesthetic purposes. According to the World Wide Web Consortium’s Web Content Accessibility Guidelines (WCAG) 2.0, digital content is considered accessible if it meets four criteria:
  1. Perceivable: Users can actually see/hear/experience the material.
  2. Operable: Users can interact with and navigate the material.
  3. Understandable: Users can comprehend the material and easily predict how it will behave.
  4. Robust: Users can access the material successfully on many different kinds of devices (for example, you don’t lose content or structure when moving from a web browser to a screen reader).
There are a variety of resources available to assist districts in making their websites more accessible:

Language barriers

While there’s no general law mandating districts to translate all their communications and content for their employees, some laws require particular steps be taken. For example, the Family and Medical Leave Act (FMLA) requires employers whose workforce comprises a significant portion of employees who are not literate in English to provide certain notices in a language employees understand.
 
TASB HR Services is in the process of translating the following notices to Spanish to assist districts whose workforce fits the FMLA description:
  • General Notice of Rights and Responsibilities
  • Notice of Eligibility and Rights and Responsibilities
  • Designation Notice
The sample notices will be available in the HR Library soon. The State Board of Educator Certification (SBEC) Parent Notice form has already been translated into Spanish and can be accessed under the Contracts and Assignments section of the HR Library (myTASB login required).
 
Districts with a high percentage of foreign language speakers should work to accommodate the communication needs of their employees. Translating relevant documents and web pages should be a priority districts address sooner rather than later.
 
Ultimately, the purpose of improving online accessibility issues and overcoming language barriers is to better serve district employees. And while there may not be explicit federal rules dictating changes, it’s better to take precautionary measures and avoid potential lawsuits in the future by addressing these topics now. 
 

Myths: duty days and salary in employment contracts

by Cindy Clegg
 
Should duty days and salary be written into the employment contract for each employee?
 
Simple logic could argue that an employment agreement ought to include the expected work period and the salary. But does that mean these two items should be written into the contract? In the public school environment of Texas, where simple logic is not often the correct answer, the response is no.
 
Myth 1— A specific salary amount must be stated in the contract.
 
An employment contract documents the terms of the employment relationship and must include the terms of compensation. However, in Texas, the contract renewal calendar and the budget adoption calendar are not in sync, making it impractical to quote a precise salary amount at the time the contract is offered to employees. Contract renewals are often sent to employees in February or March, to give employees plenty of time to sign and return the contract before the school year ends. On the budget side, the board often cannot make final decisions about funding for pay raises until July or August.
 
The TASB model contracts state that employees will be paid in accordance with the compensation plan to be adopted by the board for the upcoming year. Employees agree to these terms in advance of knowing the particulars. Districts later provide specific salary information by issuing pay notices to employees sometime after budget adoption and before the penalty-free contract resignation deadline (i.e., 45 days before the first day of instruction for the next school year). Even though the subsequent pay notice is not written into the contract itself, it is still legally considered an addendum to and a material term of the contract and it is equally binding. A notice of compensation is available in the HR Library (myTASB login required).
 
If a district fails to provide notice of a specific salary by this deadline, the district is committed to pay no less than the employee was paid in the prior school year. If a district is planning to reduce pay below the previous year’s level, notice of any reduction must be provided to the employee before the penalty-free resignation deadline. This allows the employee to resign the position without penalty if the terms of compensation are unacceptable.
 
Myth 2—The number of days an employee is required to work must be specified in the contract.
 
There is no federal or state law that requires a district to create an employment contract for a fixed number of duty days. State law only requires that teachers be paid a minimum monthly salary for a 10-month contract with a minimum of 187 duty days required. Required days of instruction for students was changed to minutes of instruction by the 84th Texas Legislature, but teacher contract laws were not changed.
 
To best serve the needs of students and preserve flexibility, TASB recommends the contract only include the number of months employed. Publishing a fixed number of duty days may have the unintended effect of the district forfeiting the ability to alter duty schedules during the contract period and lead to claims of additional pay owed for extra days worked.  
 
A 2010 legal decision (Kelley v North East ISD) held that a posted duty schedule showing 187 duty days for 10-month employees was, in effect, a material term of the contract. The district was required to pay for an additional day when the employee worked 188 days to attend student graduation, even though graduation day was within the ten months of the contract. As a result, it is recommended that districts refrain from citing duty days in all related employment documents (e.g., duty schedules or salary letters). These documents need only include the months employed, the start and end dates of the contract period, and the total salary to be paid. The school calendars will show which days employees are scheduled to work and which days are school holidays.
 
For more general information on contracts, see the Contracts and Assignments section of the HR Library
 

HR Extras

SB7 pre-employment affidavit update

A recent update was made to the pre-employment affidavits required by SB 7 of the 85th Regular Session of the Texas Legislature to simplify the notary statement. The updated documents, Sample Pre-employment Affidavit for Applicant and Sample Pre-employment Affidavit for Applicant Offered Employment are available in the TASB School Law eSource. Additional questions were also added to Frequently Asked Questions About Required Pre-Employment Affidavits

Don’t call in employees during FMLA time off

A common mistake human resources administrators and managers make is asking employees on Family and Medical Leave (FML) leave to report to work.

From workplace investigations to promotion discussions, there are a variety of reasons employers may want to bring in an employee on FML to work. However, requiring employees to work during FML would interfere with the leave and is not permissible.

Reasonable, limited contact with an employee about work-related matters is permitted. Court cases regarding contact with an employee during FML suggest that a district follow these guidelines:
  • Contacts should be limited (in duration and number) and restricted to the scope of passing on institutional knowledge to new staff or providing closure on completed assignments.
  • Contacts should be scheduled so as not to interfere with the purpose of leave. If for example, an employee takes leave to care for a family member, the employee should not be required to interrupt care duties to respond to telephone calls.
  • The employee should not be expected or required to produce work (e.g., grading papers and lesson planning) during FML unless the employee consents to light duty as described by Family and Medical Leave Act regulations.
For detailed information on FMLA procedures, visit the Leaves section of the HR Library.

Top tweets from HR Academy

HR Academy 2017 was a success, and we appreciate everyone who attended the training. You can view some of the highlights of the event in our Twitter Moments below: