Policy on Employee Leave

Policy Description

This policy provides guidelines to establish under what circumstances an employee of the State Office of Administrative Hearings (SOAH) may be entitled to or granted each type of leave provided by Chapter 661 of the Texas Government Code or other authority. In accordance with Section 661.252, this policy must be posted on SOAH’s website where it is easily accessible by the agency’s employees as well as the public.

Gov't  Code Ch. 661 Leave

Annual Leave

Employees begin to accrue annual leave from their first day of employment with the State. However, annual leave may not be taken until an employee has been continuously employed with a state agency for six (6) months.

Annual leave accrual rates are the same for both hourly and salaried employees.

An employee accrues annual leave and may carry annual leave forward from one fiscal year to the next in accordance with the schedule detailed in Table 1 below.

Source: TEX. GOV’T CODE § 661.152.

All annual leave hours in excess of the maximum allowable carryover remaining at the end of a fiscal year shall be credited to the employee’s sick leave balance. In computing annual leave taken by an employee, absences due to state holidays or emergency leave are not charged.

Part‐time employees are also eligible for annual leave, but their accrual rate and maximum annual leave carryover amounts are proportionate to the number of hours they work. For example, half‐time employees earn and carry over annual leave at one‐half the rate authorized for full‐time employees.

Annual Leave and Employee Separations

Employees who transfer directly from one state agency to another will have their annual leave balances transferred. Additionally, if an employee separates from employment at SOAH and is re‐employed within 30 calendar days by another agency of the State of Texas in a position that accrues annual leave, then his or her annual leave balance will transfer to the new agency.

If an employee who is separating from the agency is not re‐employed by the State in a position that accrues annual leave during the 30‐day period immediately following separation from, then the employees is entitled to be paid for the accrued balance of their annual leave as of the date of separation.

Administrative Leave for Outstanding Performance

The Chief Administrative Law Judge may reward employees whose performance exceeds the expectations or requirements for their current job duties by granting administrative leave with pay. The total amount of administrative leave granted may not exceed 32 hours during a fiscal year.

To be eligible, an employee recommended for administrative leave shall:

• Have consistently exceeded performance standards as documented in the employee’s most recent annual evaluation; and
• Not have received a disciplinary action in the 12 months immediately preceding the recommendation for administrative leave.¹

Employees who have not yet received an annual performance evaluation may be granted administrative leave for completing significant training performance milestones.

Sick Leave

SOAH employees shall earn sick leave subject to the following provisions:

• An employee accrues sick leave at a rate of eight (8) hours per month (or proportionately for part‐ time employees).
• An employee accrues sick leave beginning on the first day of state employment and ending on the last duty day of state employment. “Duty day” means an employee’s last physical day on the job.

Sick leave may be used when an employee is prevented from performing his or her job due to sickness, injury, pregnancy, or confinement. Sick leave may also be used:

• to care for an immediate family member who is ill;
• by an employee who is the court-appointed legal guardian of a child to care for the child; and/or
• for the adoption of a child under the age of three (3) years.

An employee who is on leave the first day of the month may not use that month’s accrual until he or she returns to duty. An employee may use sick leave while he or she is on annual leave.

An employee must notify his or her supervisor of the employee’s need to use sick leave at the earliest possible time.

To be eligible to take accumulated sick leave during a continuous period of more than three (3) working days, an employee absent due to sickness, injury, or pregnancy and confinement must provide to the employee’s supervisor and SOAH Human Resources either a doctor’s note showing the cause or nature of the condition or an acceptable written statement of facts concerning the condition.²

Sick Leave for Educational Activities

An employee may use up to eight (8) hours of sick leave each fiscal year to attend educational activities of the employee’s children who are in pre‐kindergarten through 12th grade. Educational activities include school‐sponsored activities such as: parent‐teacher conferences; tutoring; volunteer programs; field trips; classroom programs; school committee meetings; academic competitions; and athletic, music, or theater programs. The employee must give reasonable notice of his or her intention to use this leave. Part‐time employees receive this leave on a proportionate basis.³

Sick Leave and Employee Separations

Employees who separate from state employment under a formal reduction in force are entitled to have their sick leave balances restored if they are re‐employed by the State within 12 months.⁴

Employees are not paid for unused sick leave upon termination. Sick leave may be:

• Contributed toward retirement service credit. Refer to the Employee Retirement Systems of Texas for more information.
• Donated to the sick leave pool.⁵

Sick Leave Pool (for catastrophic illness or injury)

SOAH’s sick leave pool allows employees to voluntarily transfer earned sick leave time to the pool for the use by eligible employees. Any employee may contribute sick leave to the pool, and contributions are strictly voluntary. Contributions must be in increments of eight hours, with the exception of employees who are retiring, who may contribute any unused balance. The intent of the pool is to provide for the alleviation of hardships for employees who have suffered a catastrophic illness or injury that has forced them to exhaust all paid leave, including sick, vacation, and compensatory. If an employee has exhausted all leave balances, he or she may request time from the sick leave pool. Employees have no entitlement to the use of sick leave that has been donated to the sick leave pool, and SOAH Human Resources is responsible for granting or denying all requests.⁶

Donation of Sick Leave

SOAH allows an employee to voluntarily transfer any amount of his or her accrued sick leave to another SOAH employee who has exhausted his or her sick leave, including any time the individual may be eligible to withdraw from the sick leave pool.

Donation of sick leave is taxable to the recipient when the sick leave is used.⁷ Employees are encouraged to consult with their tax professional to determine how the use of leave from this pool will impact their income and tax liability.

Unlike accrued sick leave, donated sick leave is not eligible for transfer to another state agency or for payment to an estate upon death of the recipient.

An employee may not provide or receive remuneration or a gift in exchange for a sick leave donation. An employee who receives donated sick leave may not:

• use sick leave donated to the employee except as provided by Texas Government Code Sections 661.202(d) and (e) (in case of the employee’s own sickness or to care for an immediate family member who is sick); or
• notwithstanding any other law, receive service credit in ERS for any sick leave donated to the employee under this section that is unused on the last day of that employee’s employment.⁸

Family Leave Pool

SOAH's family leave pool allows employees to voluntarily transfer their personally accrued sick or vacation leave hours to the pool for the use by eligible employees. Any employee may contribute any amount of leave to the pool, and contributions are strictly voluntary. Employees who contribute leave hours to the pool may not designate the contributed hours for use by a specific employee. An employee who contributes leave hours to the pool may not withdraw the contributed hours. The intent of the family leave pool is to provide eligible employees more flexibility in bonding with and caring for children during a child's first year following birth, adoption, or foster placement, and caring for a seriously ill family member or the employee’s own serious illness, including pandemic-related illnesses or complications caused by a pandemic. If an employee has exhausted all leave balances, he or she may request time from the family leave pool. Employees have no entitlement to the use of leave that has been donated to the pool, and SOAH Human Resources is responsible for granting or denying all requests.⁹

The receipt and use of leave from SOAH's family leave pool may have tax implications upon the requesting employee.¹⁰ Additionally, donating leave to the family leave pool may be taxable to the employee who makes the donation. Employees are encouraged to consult with their tax professional to determine how the donation to this pool or the use of leave from this pool will impact their income and tax liability.

Emergency Leave

SOAH’s Chief Administrative Law Judge may grant emergency leave for reasons determined to be for good cause upon request of an employee. “Good cause” is in the discretion of the Chief Administrative Law Judge and includes, but is not limited to, public emergencies, power outages, and inclement weather events.¹¹

The Chief Administrative Law Judge, or a designee, may not grant emergency leave to an employee unless they believe in good faith that the employee being granted the emergency leave intends to return to the employee’s position with SOAH on expiration of the period of emergency leave.

Except in cases where the agency is closed due to inclement weather, power outage, or another emergency, an employee request for emergency leave must be submitted in writing by the employee to his or her supervisor, who shall forward the request to the appropriate executive team member and Human Resources for consideration by the Chief Administrative Law Judge, as needed.

Bereavement Leave

Emergency leave, without a deduction in salary, is available upon request to an employee for a death in the employee’s family. In this instance only, an employee’s family is defined as: the employee’s spouse, as well as the employee’s and spouse’s parents, children, brothers, sisters, grandparents, and grandchildren.¹² The requesting employee’s supervisor may approve up to three (3) days of bereavement leave. If extensive out-of-town or out-of-state travel is required and/or greater than three (3) days is needed, the request must be submitted to SOAH Human Resources for approval of additional bereavement leave by the Chief Administrative Law Judge.

Special Leave

At the sole discretion and authority of the Chief Administrative Law Judge, employees may be granted paid leave for other special circumstances, such as additional agency closures during a holiday period.

Family and Medical Leave

Eligibility

The Family and Medical Leave Act (FMLA) is a federal law that allows certain employees to take leave from work for qualifying family and medical reasons. To be eligible for family and medical leave under the FMLA, an individual must have been employed by the State of Texas for at least 12 months and must have actually worked at least 1,250 hours during the 12‐month period immediately preceding the commencement of family and medical leave. When calculating the required 12 months of State employment, all prior State employment will be counted, and it does not have to be continuous.

Requirements

Under the FMLA, employees may be eligible for up to a total of 12 weeks of unpaid, job‐protected leave during a 12‐ month period for one or more of the following reasons:

• The birth and subsequent care of a newborn child.
• The placement of a child with the employee for adoption or foster care or through a guardianship proceeding.
• The need to care for the employee’s spouse, child, or parent with a serious health condition.
• A serious health condition that renders the employee unable to work.
• A qualifying exigency arising from the fact that the employee’s spouse, child or parent is a covered military member on active duty (or has been notified of an impending call or order to active duty) in support of a contingency operation.

SOAH also may grant an eligible employee who is the spouse, child, parent, or next of kin of a covered service member who is recovering from a serious illness or injury sustained in the line of duty while on active duty up to 26 work weeks of leave in a single 12‐month period. That military caregiver leave is available during a single 12‐month period during which an eligible employee is entitled to a combined total of 26 weeks of all types of family and medical leave.

While taking leave under the FMLA, employees must first use all available and applicable paid vacation and sick leave, except for employees who are receiving temporary disability benefits or workers’ compensation benefits or taking paid parental leave (or PPL).¹³

Parental Leave

Paid Parental Leave (or PPL)

Employees who qualify for FMLA (i.e., have at least 12 months of state service and have worked at least 1,250 hours during the 12-month period prior to the leave) are entitled to paid leave for the:

• birth of a child by the employee;
• birth of a child by the employee's spouse;
• birth of a child by a gestational surrogate; or
• adoption of a child.

An employee who takes PPL for the birth of a child by the employee is entitled to 40 consecutive days of paid leave. An employee who takes this leave for the other qualifying events is entitled to 20 consecutive days of paid leave. PPL can only be taken after the qualifying event and must be taken in a continuous block. Employees are not required to use all available paid vacation and sick leave before taking PPL. 

Paid parental leave does not entitle an employee to any leave in addition to the duration of the FMLA leave and must run concurrently with the FMLA leave associated with the qualifying event. If an employee’s FMLA leave for the qualifying event extends beyond the applicable 40- or 20-day period of paid parental leave, then the employee must use other accrued paid leave or leave without pay to account for the extended period.¹⁴

To request PPL, the employee must complete the required documentation for FMLA and paid parental leave.

Parental Leave (Unpaid)

Employees who do not qualify for FMLA because they have fewer than 12 months of total state service or because they have worked fewer than 1,250 hours in the 12‐month period immediately preceding the commencement of leave are eligible to take a parental leave of absence, not to exceed 12 weeks, for the birth of a natural child or the adoption by or foster care placement of a child under three (3) years of age.

Parental leave is limited to, and begins on the date of, the birth of the employee’s natural child or the adoption by or foster care placement with the employee of a child younger than three (3) years of age.

An employee must first use all available and applicable paid vacation and sick leave while taking parental leave prior to going on leave without pay. The use of sick leave is strictly limited to those situations clearly falling within the definition of sick leave contained in the Texas Government Code.¹⁵

Foster Parent Leave

An employee who is a foster parent to a child under the conservatorship of the Department of Family and Protective Services (DFPS) is entitled to a paid leave of absence to attend staff meetings held by DFPS regarding the foster child. In addition, the employee may attend, with a paid leave of absence, the admission, review, and dismissal meetings held by a school district regarding the foster child.¹⁶

Court Appointed Special Advocates Volunteer (CASA) Leave

An employee who is a court appointed special advocate (CASA) volunteer is entitled to leave, not to exceed five (5) hours each month. This leave is in addition to other forms of accrued leave, and may to be only used to participate in mandatory CASA training or to perform CASA voluntary services.¹⁷

Voting Leave

Employees are allowed up to two (2) consecutive hours of time off on election days, without a deduction in salary or accrued leave, to vote in each national, state, or local election.¹⁸ The time off must be taken during working hours in which polls are open. Because early voting periods prior to election days generally allow opportunities for employees to vote outside of SOAH’s normal hours of operation, the award of time off to participate in early voting is within the discretion of the Chief Administrative Law Judge.

Leave During Agency Investigation

The Chief Administrative Law Judge, or a designee, may grant leave without a deduction in salary to an employee who is the subject of an internal investigation being conducted by SOAH; or a victim of, or witness to, an act or event that is the subject of an internal investigation being conducted by SOAH.¹⁹

Military Leave During National Emergency

Employees called to active duty during a national emergency to serve in a reserve component of the U.S. Armed Forces under Titles 10 or 32 of the United States Code are entitled to state service for longevity pay purposes, vacation leave accruals, and sick leave accruals while on an unpaid leave of absence.

This leave will be accrued but not posted until the employee returns to state employment. In addition, the employee retains his or her leave balances unless the employee chooses to use any accrued vacation leave, compensatory time, or overtime leave to maintain benefits for the employee or the employee’s dependents while on military duty.

Additionally, the employee may continue to accrue service credit with ERS by receiving at least one (1) hour of state pay during each month of active military service. The employee may use any combination of paid leave to qualify for state pay.²⁰

National Guard Emergency Leave

A state employee called to state active duty as a member of the state military forces by the governor because of an emergency is entitled to receive emergency leave without loss of military or vacation leave. This leave will be provided without a deduction in salary. This time is not limited and does not count against the 15 days, with an additional seven days if applicable, maximum military leave per fiscal year.²¹

Leave for Volunteer Firefighters and Emergency Medical Services Volunteers

Volunteer firefighters and emergency medical services volunteers are entitled to paid leave not to exceed five (5) working days each fiscal year for attending training services conducted by a state agency or higher education institution. In addition, SOAH may grant paid leave to a volunteer firefighter or an emergency medical services volunteer for the purpose of responding to emergency fire or medical situations.²²

Disaster Relief Service Volunteer Leave

Employees who are volunteers of an organization that is a member of the Texas Voluntary Organizations Active in Disaster (VOAD) may be granted a paid leave of absence not to exceed 10 days each fiscal year to participate in disaster relief services. The employee must have the approval of his or her supervisor as well as from the Chief Administrative Law Judge. In addition, the services in which the employee participates must be provided for a state of disaster declared by the governor. An employee on such leave will not lose pay, vacation time, sick leave, earned overtime, and/or compensatory time during this leave.²³

Leave for Amateur Radio Operators Participating in Disaster Relief Services

An employee with an amateur radio station license issued by the Federal Communications Commission (FCC) will be granted a paid leave of absence not to exceed 10 working days each fiscal year to participate in specialized disaster relief services. An employee on such leave will not lose pay, vacation time, sick leave, overtime leave, or compensatory time. The amateur radio operator leave must be authorized by the employee’s supervisor and must have the approval of the governor.²⁴

Bone Marrow and Organ Donation Leave

A state employee is entitled to a leave of absence without a deduction in salary for the time necessary to permit the employee to serve as a bone marrow or organ donor. The leave of absence may not exceed five (5) working days in a fiscal year to serve as a bone marrow donor or 30 working days in a fiscal year to serve as an organ donor.²⁵

Blood Donor Leave

Employees are allowed sufficient time off, without a deduction in salary or accrued leave, to donate blood. An employee may receive time off not to exceed more than four (4) times in a fiscal year.²⁶

Leave for Assistance Dog Training for Employees with a Disability

An employee with a disability as defined by Texas Human Resources Code Section 121.002, shall be granted a paid leave up to 10 working days in a fiscal year for the purpose of attending a training program to acquaint the employee with an assistance dog to be utilized by the employee. This leave is in addition to other leave entitlements.²⁷

Leave for Reserve Law Enforcement Officer Training

State employees who are reserve law enforcement officers as defined by Texas Occupations Code Section 1701.001 are entitled to paid leave not to exceed five (5) working days each fiscal biennium to attend training required by Texas Occupations Code Section 1701.351.²⁸

Medical and Mental Health Care Leave for Veterans

A state employee who is a veteran and eligible for health benefits under a program administered by the Veterans Health Administration of the United States Department of Veterans Affairs is entitled to leave without a deduction in salary or loss of vacation time, sick leave, earned overtime credit, or state compensatory time to obtain medical or mental health care administered by the Veterans Health Administration of the United States Department of Veterans Affairs, including physical rehabilitation.²⁹

The leave granted may not exceed 15 days each fiscal year. The Chief Administrative Law Judge, or a designee, may annually grant additional days of leave as they determine appropriate for the employee.

Leave Without Pay (or LWOP)

Leave without pay is the temporary absence from duty by an employee who does not have any eligible leave balances, but who intends to return to work. During the length of the absence, pay is suspended. SOAH may grant LWOP to eligible employees upon request, but approval is not guaranteed.

Compensatory time, annual leave, and sick leave, if appropriate, must be exhausted prior to requesting LWOP except in instances of disciplinary suspension, leave covered by workers’ compensation benefits, or active military duty situations.³⁰

Other Agency Leave

Holiday Leave

As prescribed by Government Code Chapter 662, state employees are entitled to paid leave for three types of holidays: national, state, and optional holidays.³¹ For the current holiday schedule for state employees, see the State Auditor’s Office Holiday Schedule.

Jury or Witness Duty Leave

An employee who is called for jury service is protected by law³² and entitled to leave for that purpose without any reduction in salary. The employee must provide a copy of the jury summons to his or her supervisor and give advance notice of absence for approval. After jury duty is completed, the employee must submit documentation from the court stating the hours the employee was required to be on jury duty. Any fee or compensation for jury duty service belongs to the employee.³³

An employee called to appear as a witness in any judicial or legislative hearing, trial, or investigation will be granted leave as follows:

• If testifying in a SOAH-related official capacity, time will be granted to testify and the time used will be coded as work time. The employee may not accept a witness fee for the appearance.³⁴
• If testifying in a personal or private capacity in a matter not related to SOAH, the employee must use available leave balances under applicable policies. The employee is entitled to any customary witness fee for the appearance
• If subpoenaed in a private matter by a third party, an employee may request and be granted emergency leave. The employee is entitled to any customary witness fee for the appearance.

Before an employee may take leave for any witness duty, the employee must submit the subpoena or other notification to his or her supervisor and provide advance notice of absence for approval.

Wellness and Fitness Leave

As part of SOAH’s Employee Wellness Program, employees are allowed 30 minutes of leave during normal working hours for exercise three times a week. An employee who uses work hours to exercise must either make up the time or use paid time off, such as annual leave. Eight (8) hours of additional leave time will be awarded each year to an employee who receives a physical examination and completes a health risk assessment.³⁵ Additional opportunities for employees to earn wellness or fitness leave may be available, such as by participating in the annual Get Fit Texas! State Agency Challenge.

¹ TEX. GOV’T CODE § 661.911.

² TEX. GOV’T CODE § 661.202.

³ TEX. GOV’T CODE § 661.206.

⁴ TEX. GOV’T CODE § 661.205.

⁵ TEX. GOV’T CODE § 661.202.

⁶ TEX. GOV’T CODE § 661.002-.008; 1 TEX ADMIN. CODE § 160.11.

⁷ Comptroller of Public Accounts, "Tax Implications for Donated Sick Leave," available at fmx.cpa.texas.gov/fmx/legis/donatesick.

⁸ TEX. GOV’T CODE § 661.207.

⁹ TEX. GOV’T CODE § 661.021-.028.

¹⁰ Comptroller of Public Accounts, "Tax Implications of the Family Medical Leave Pool," available at fmx.cpa.texas.gov/fmx/payer/family_leave/.

¹¹ TEX. GOV’T CODE § 661.902(b)-(c).

¹² TEX. GOV’T CODE § 661.902(a).

¹³ TEX. GOV’T CODE § 661.912.

¹⁴ TEX. GOV’T CODE § 661.912-.9125.

¹⁵ TEX. GOV’T CODE § 661.913.

¹⁶ TEX. GOV’T CODE § 661.906.

¹⁷ TEX. GOV’T CODE § 661.921.

¹⁸ TEX. GOV’T CODE § 661.914.

¹⁹ TEX. GOV’T CODE § 661.923.

²⁰ TEX. GOV’T CODE § 661.904.

²¹ TEX. GOV’T CODE § 661.903, 437.254; see also TEX. GOV’T CODE § 437.202 (entitling eligible employees, per fiscal year, with 15 workdays of paid leave to attend authorized military training or duty as well as an additional up to 7 workdays of paid leave of absence for those eligible employees who are called by the governor or other appropriate authority to state active duty in response to a disaster).

²² TEX. GOV’T CODE § 661.905.

²³ TEX. GOV’T CODE § 661.9075.

²⁴ TEX. GOV’T CODE § 661.919.

²⁵ TEX. GOV’T CODE § 661.916.

²⁶ TEX. GOV’T CODE § 661.917.

²⁷ TEX. GOV’T CODE § 661.910.

²⁸ TEX. GOV’T CODE § 661.922.

²⁹ TEX. GOV’T CODE § 661.924.

³⁰ TEX. GOV’T CODE § 661.909.

³¹ TEX. GOV’T CODE § 662.003.

³² TEX. CIV. PRAC. & REM. CODE § 122.001.

³³ TEX. GOV’T CODE § 659.005(a).

³⁴ TEX. GOV’T CODE § 659.005(b)-(e).

³⁵ TEX. GOV’T CODE § 664.061.