Navigating Unapproved Absences

Navigating unapproved employee absences poses unique challenges to school districts, especially in the areas of setting restrictions and docking pay.  

Texas Education Code (TEC) §22.003(a) entitles school district employees to five days of paid personal leave per year, including part-time employees who work on a regular basis (e.g., bus drivers).

Discretionary vs. Nondiscretionary Leave

Many districts make a distinction between nondiscretionary or discretionary state personal leave. Nondiscretionary leave is taken for illness, emergency, death, or military leave. Discretionary leave is taken for personal business, vacation, or any other absence taken at the employee’s discretion that can be scheduled in advance. 

Districts cannot restrict the purpose for which state personal discretionary leave is used, but they can place limitations on the timing and duration of the leave.

Restrictions on State Personal Discretionary Leave

When setting restrictions on state personal discretionary leave, districts will want to consider the needs of district employees and how job responsibilities affect district functions. Districts should include provisions in their local leave procedures and regulations. 

Local regulation provisions might include a requirement of advanced notice and days on which leave cannot be taken. Examples of limitations on taking leave may include:

• First or last day of duty year
• Day before or after a district holiday
• Days scheduled for semester or final exams
• Days scheduled for state-mandated assessments
• Days scheduled for staff development or professional development

More information about state personal leave can be found in the HRX article The Ins and Outs of State Personal Leave. The Framework for Developing Leaves and Absences Procedures, available in the HR Services Resource Library (member login required), can help districts decide which provisions to include in their local leave procedures and regulations. For colleges, see The Framework for Developing Leaves and Absences Procedures - College.

Pay Deductions for Unapproved Leave

Employers frequently ask what can be done if an employee takes discretionary leave on a day that is not allowed or does not follow established procedures for requesting leave in advance.

Two common misconceptions are that employees can use leave in any way and at any time they choose and that the Fair Labor Standards Act (FLSA) prevents an employer from docking pay for exempt employees.

Public sector employers retain the option of making partial-day deductions for absences from an exempt employee’s salary if the employer has a policy or practice of making such deductions for reasons of public accountability (29 CFR § 541.710).

An employer may make partial-day deductions or “dock” the employee’s salary if accrued leave was not used because:

• Permission for leave was not requested
• Permission for leave was requested and denied
• Accrued leave was exhausted
• The employee chose to use leave without pay

Communicating Leave Procedures

The best method for preventing these absences is clear and frequent communication of leave procedures with employees. In addition to including information in administrative regulations and procedures, HR should use a variety of methods to keep employees informed, including posting the information on the district website, sharing information via newsletters, and meeting with employees. A leave brochure can also be provided to employees. An employee leave brochure template for districts is available in the HR Services Resource Library.

The employee handbook is also an important place to include this information. State and local leave benefits, procedures for requesting and reporting leave, and an explanation of restrictions should be detailed. Sample language similar to “Any unapproved scheduled absence for which the employee did not obtain approval from an authorized supervisor, or absences beyond accumulated and available paid leave, shall result in deductions from the employee’s pay” can also be added to the employee handbook.

HR Services will release the annual updates to the Model Employee Handbook for Districts in May.