DEB(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 DEBA. For provisions addressing leave for an employee's military service, see DEBB.
Transferability of Leave
An ESC shall accept personal leave accrued by an ESC employee as sick leave under state law by an employee who was formerly employed by the state.
A school or the state shall accept the sick leave accrued by an employee who was formerly employed by a regional education service center not to exceed five days per year for each year of employment.
Education Code 8.007
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 ESC 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 ESC business. Such absence shall be without pay unless applicable paid leave is available. 42 U.S.C. 2000e(j), 2000e-2(a); Ansonia Bd. of Educ. v. Philbrook, 479 U.S. 60 (1986); Pinsker v. Joint Dist. No. 28J of Adams and Arapahoe Counties, 735 F.2d 388 (10th Cir.1984)
Compliance with a Subpoena
An employer 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)
Note: A Texas federal court held that by omitting any reference to governmental entities from Labor Code 52.051, the state legislature intended to exclude governmental entities from the definition of "employer" contained within that section. Therefore, the statute did not waive a county's governmental immunity from liability for claims of retaliatory discharge of an employee for complying with a subpoena. Alcala v. Texas Webb County, 620 F. Supp. 2d 795 (S.D. Tex. 2009)
Leave for Sick Foster Child
An employer commits an unlawful employment practice under Labor Code, Chapter 21 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 Texas Department of Family and Protective Services (DFPS).
Labor Code 21.0595
Uniform enforcement of a reasonable absence-control rule is not retaliatory discharge. For example, an ESC 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. Howell v. Standard Motor Prods., Inc., 2001 U.S. Dist LEXIS 12332 (N. D. Tex. 2001) (Family and Medical Leave Act case); Specialty Retailers v. DeMoranville, 933 S.W.2d 490 (Tex. 1996) (age discrimination case); Continental Coffee Products Co. v. Cazarez, 937 S.W.2d 444 (Tex. 1996) (workers' compensation claim); Gonzalez v. El Paso Natural Gas Co., 40 F.E.P. Cases (BNA) 353 (Tex. App.—El Paso 1986, no pet.) (sex discrimination case)
[Some employees may have protected status even after the expiration of all other leave. See DAA]