DEC(LEGAL) - COMPENSATION AND BENEFITS: LEAVES AND ABSENCES
Note: This policy addresses leaves in general. For provisions regarding the Family and Medical Leave Act (FMLA), including family and medical leave for an employee seeking leave because of a relative's military service, see DECA. For provisions addressing leave for an employee's military service, see DECB.
The governing board of each college or university supported in whole or in part by state funds shall issue regulations concerning the authorized and unauthorized absence from duty of faculty members, as defined by Education Code 51.101(3) [see Development Leaves of Absence, below], including teaching assistants and research assistants.
Each governing board shall file a copy of these regulations concerning employee absences with the Coordinating Board. Each governing board shall file any amendment to its regulations with the Coordinating Board not later than 30 days after the effective date of the amendment.
Education Code 51.108
Disabilities caused or contributed to by pregnancy, childbirth, or related medical conditions, for all job-related purposes, shall be treated the same as disabilities caused or contributed to by other medical conditions, under any health or disability insurance or sick leave plan available in connection with employment. 29 C.F.R. 1604.10(b)
An employer, including a college district, shall reasonably accommodate an employee's request to be absent from duty in order to participate in religious observances and practices, so long as it does not cause undue hardship on the conduct of the employer's business. An employer has met its obligation when it demonstrates that it has offered a reasonable accommodation to the employee. The employer need not further show that each of the employee's alternative accommodations would result in undue hardship. 42 U.S.C. 2000e(j), 2000e-2(a); 29 C.F.R. 1605.2; Ansonia Bd. of Educ. v. Philbrook, 479 U.S. 60 (1986)
Religious Holy Days
An institution of higher education, including a college district, may not discriminate against or penalize in any way a faculty member who is absent from work for the observance of a religious holy day and gives proper notice of that absence if the customary and generally applicable educational practices of the institution permit general personal absence by faculty members. If personal absence is customarily penalized, the penalty for absence due to observance of a religious holy day under this section shall be forfeiture of one day's pay equivalent for each day of absence.
"Proper notice" means that the faculty member shall provide a listing of religious holy days to be observed during the semester to the chairman of the department and shall provide notice of such days in advance to all students whose class would be canceled due to the faculty member's absence. This notice shall be in writing and shall be personally delivered to the chairman of the department, receipt therefore being acknowledged and dated by the chairman, or shall be sent by certified mail return receipt requested, addressed to the chairman.
A "religious holy day" shall be defined as a holy day observed by a religion whose places of worship are exempt from property taxation under Tax Code 11.20.
Education Code 51.925
Leave to Care for Sick Foster Child
An employer, including a college district, commits an unlawful employment practice if the employer administers a leave policy under which an employee is entitled to personal leave to care for or otherwise assist the employee's sick child and the leave policy does not treat in the same manner as an employee's biological or adopted minor child any foster child of the employee who resides in the same household as the employee and is under the conservatorship of the Department of Family and Protective Services. Labor Code 21.0595
Compliance with a Subpoena
An employer, including a college district, may not discharge, discipline, or penalize in any manner an employee because the employee complies with a valid subpoena to appear in a civil, criminal, legislative, or administrative proceeding. Labor Code 52.051(a)
An employer, including a college district, may not discharge, threaten to discharge, intimidate, or coerce any permanent employee because the employee serves as a juror, or grand juror, or for the employee's attendance or scheduled attendance in connection with the service, in any court in the United States. Civil Practice & Remedies Code 122.001(a)
Attendance at Truancy Hearing
An employer, including a college district, may not terminate the employment of a permanent employee because the employee is required under Family Code 65.062(b) to attend a hearing. Notwithstanding any other law, an employee whose employment is terminated in violation of this section is entitled to return to the same employment that the employee held when notified of the hearing if the employee, as soon as practical after the hearing, gives the employer actual notice that the employee intends to return. Family Code 65.063(a)–(b)
Development Leaves of Absence
For the purposes of this policy on development leaves, "faculty member" shall mean a person who is employed by an institution of higher education, including a college district, on a full-time basis as a member of the faculty or staff and whose duties include teaching, research, administration, including professional librarians, or the performance of professional services. However, the term does not include a person employed in a position that is in the institution's classified personnel system or a person employed in a similar type of position if the institution does not have a classified personnel system. Education Code 51.101
Granting Leaves of Absence
On the application of a faculty member, the governing board of an institution of higher education may grant a faculty development leave of absence for study, research, writing, field observations, or other suitable purpose, if:
- The faculty member is eligible by reason of service.
- The purpose for which a faculty development leave is sought is one for which a faculty development leave may be granted.
- Granting the leave will not place on faculty development leave a greater number of faculty members than that authorized.
The governing board by regulation shall establish a procedure whereby the applications for faculty development leaves of absence are received by a committee elected by the general faculty for evaluation and whereby the faculty committee shall then make recommendations to the chief executive officer of the institution of higher education, who shall then make recommendations to the governing board as to which applications should be granted.
Education Code 51.103
A faculty member shall be eligible to be considered for a faculty development leave when he or she has served as a member of the faculty in the same institution of higher education for at least two consecutive academic years. This service may be as an instructor or as an assistant, associate, or full professor, or an equivalent rank, and must be full-time academic duty but need not include teaching. Education Code 51.104
Duration and Compensation Additional Employment
The governing board may grant to a faculty member development leave either for one academic year at one-half of the faculty member's regular salary or for one-half academic year at full regular salary. Payment of salary to the faculty member on a development leave may be made from the funds appropriated by the legislature specifically for that purpose or from such other funds as might be available to the institution.
A faculty member on a development leave may accept a grant for study, research, or travel from any institution of higher education or from a charitable, religious, or educational corporation or foundation, from any business enterprise, or from any federal, state, or local governmental agency. An accounting of all grants shall be made to the governing board of the institution by the faculty member.
A faculty member on development leave may not accept employment from any other person, corporation, or government, unless the governing board determines that the employment would be in the public interest to do so and expressly approves the employment.
Education Code 51.105
Number on Leave at One Time
No more than six percent of the faculty members of any institution of higher education may be on faculty development leave at any one time.
A faculty member on faculty development leave shall continue to be a member of the Teacher Retirement System of Texas or of the Optional Retirement Program, or of both, just as any other faculty member on full-time duty.
The institution of higher education shall cause to be deducted from the compensation paid to a member of the faculty on faculty development leave the deposit and membership dues required to be paid by him to the Teacher Retirement System of Texas or to the Optional Retirement Program, or both, the contribution for Old Age and Survivors Insurance, and any other amounts required or authorized to be deducted from the compensation paid any faculty member. [See CDDA]
A member of the faculty on faculty development leave is a faculty member for purposes of participating in the programs and of receiving the benefits made available by or through the institution of higher education or the state to faculty members.
Education Code 51.106–107
Administrator Development Leave
An employment contract entered into by the governing board of an institution of higher education with an administrator that is to be paid in whole or in part from appropriated funds may not allow for development leave that is inconsistent with Education Code 51.105.
An institution of higher education must require an administrator who receives development leave to:
- Return to work at the institution for an amount of time equal to the amount of time the administrator received for development leave; or
- Repay the institution for all the costs of the development leave, including the amount of the administrator's salary, if any, paid during the leave.
Notwithstanding Education Code 51.948(b)(3), the governing board of an institution may grant development leave at the faculty member's full, regular salary for one year to a faculty member who has held an administrative position at the institution for more than four years.
"Administrator" means a person who has significant administrative duties relating to the operation of the institution, including the operation of a department, college, program, or other subdivision of the institution.
"Contract" includes a letter of agreement or letter of understanding.
Education Code 51.948(a)–(b), (d), (f)–(g)
Uniform enforcement of a reasonable absence-control rule is not retaliatory discharge. For example, an employer that terminates an employee for violating a reasonable absence-control provision cannot be liable for retaliatory discharge as long as the rule is uniformly enforced. Continental Coffee Products Co. v. Cazarez, 937 S.W.2d 444 (Tex. 1996) (workers' compensation discrimination case); Texas Division-Tranter, Inc. v. Carrozza, 876 S.W.2d 312 (Tex. 1994) (workers' compensation discrimination case); Swearingen v. Owens-Corning Fiberglas Corp., 968 F.2d 559 (5th Cir. 1992) (workers' compensation discrimination case); Howell v. Standard Motor Prods., Inc., No. 4:99-CV-987-E, 2001 WL 912387, (N.D. Tex. Aug. 10, 2001) (Family and Medical Leave Act case); Specialty Retailers v. DeMoranville, 933 S.W.2d 490 (Tex. 1996) (age discrimination case); Gonzalez v. El Paso Natural Gas Co., EP–81–CA–323,1986 WL 4796, No. (W.D. Texas Mar. 5, 1986) (sex discrimination case)
[Some employees may have protected status even after the expiration of all other leave. See CKE and DAA]