The beginning of this school year has resulted in more staff than usual starting the year on long-term leave, and districts have asked TASB HR Services if they are required to advance leave to these employees.
A major concern is these employees may not return to work once leave is exhausted and may owe the district for unearned leave and benefits paid on their behalf.
State leave requirements
Texas Education Code (TEC) §22.003 requires districts to provide all employees five days of paid personal leave each year. State personal leave must be available for use at the beginning of the school year, and an employee cannot be required to earn state leave before it is used.
Individuals who are employed by the district for the entire school year are entitled to the full five days of state leave. However, if the individual is employed after the year begins or leaves before it ends, his or her state personal leave may be prorated (Tex. Comm’r of Educ. Decision No. 019-R10-1209 (July 2, 2012)).
Local leave
Districts may choose to grant paid local leave to employees beyond the minimum state personal leave program. Provisions regarding availability and earning of local leave are outlined in Policy DEC (LOCAL). Therefore, it’s important to check local policy to determine if the district makes local leave available at the start of the school year similar to state personal leave.
Many districts require employees to earn leave during the year and may stipulate that leave is not earned when an employee is in unpaid status. As a result, an employee out for an extended period at the beginning of the year may easily use more leave than earned for a school year.
Concerns
Policy typically includes steps a district may take if an employee separates from employment before the last duty day. For example, a district’s local policy may state that an employee’s final paycheck shall be reduced for state personal leave the employee used beyond his or her pro rata entitlement for the school year and local leave used but not earned as of the date of separation.
Family and Medical Leave Act (FMLA) regulations also allow an employer to require an employee to reimburse any premiums paid by the employer if, at the expiration of FML, the employee is able to return to work but chooses not to do so (29 CFR §825.213). If the employee does not return due to the continuation, recurrence, or onset of either a serious health condition of the employee or the employee’s family member or injury or illness of a covered servicemember, repayment of the share of the health plan premium cannot be required.
Despite these provisions, districts are fearful resignations will occur when leave is exhausted, resulting in overpayment. If an employee has been on an extended period of unpaid leave, he or she may not have the means to repay the district for the use of unearned leave. In these situations, districts often find it difficult to recoup payments for unearned leave.
Preventative steps
Communication is key to ensuring an employee understands the impact of a long-term absence on pay and the possibility of owing the district money. It is never certain if an employee is going to return from an extended absence, so communicating information to all employees up front is important.
Information to discuss includes the following:
- Types and amount of leave available (e.g., local, state personal, extended sick, Family and Medical Leave (FML), Temporary Disability Leave (TDL), catastrophic bank or pool)
- Concurrent use of leave requirements
- Number of paid and unpaid leave days
- Impact of dock status on an employee’s pay, earning of local leave, and health insurance premium contributions
- Requirement to repay district for pro-rated leave; local leave used, but not earned; and health insurance premium contributions
Additional resources
The Leaves section of the HR Library contains additional resources for understanding and managing local, state, and federal leave. The following HRX articles are also helpful:
Karen Dooley is a senior HR consultant at TASB HR Services. Send Karen an email at karen.dooley@tasb.org.
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Tagged: Benefits, "Employment law", "Family and medical leave", FMLA, Leave