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Assault Leave: Obligations and Rights

Despite best practices and best intentions, students sometimes assault school employees, and sometimes District employees are injured as a result. When that occurs:

  1. What are the District’s obligations to the employee; and,
  2. What are the District’s rights?

Texas Education Code § 22.003 contains a provision unique to employment settings commonly referred to as “assault leave.” To understand the District’s obligations and rights under this statute, it is important to first understand what “assault” means in this context.

Was there actually an assault?

The Texas Education Code states that an employee is physically assaulted if the person who caused the injury could be prosecuted for assault; or “could not be prosecuted for assault only because the person’s age or mental capacity makes the person a nonresponsible person for purposes of criminal liability.” So, first, a student must assault an employee, and second, the employee must require leave to recuperate. For purposes relevant to assault leave, under the Penal Code, a person commits the offense of assault if the person acting intentionally, knowingly, or recklessly causes a physical injury that requires time off work to recuperate. In other words, when looking at the student’s mental state, the student intended to cause the injury, knew an injury was a distinct possibility, or was aware an injury might happen, but acted anyway. For example, an accident that injures an employee is not an assault. In this context, the Commissioner of Education has stated that accidental conduct has a result that does not occur in the ordinary course of events or that could not reasonably be anticipated. A student who makes an involuntary movement that injures an employee has not committed an assault.

For example, the Commissioner of Education found that a seventh-grade student walking backwards down the hallway, who collided with and injured an employee, acted recklessly and committed an assault for the purposes of assault leave, even though the student did not intentionally cause the injury. However, the Commissioner found that a first-grade student who caused a bookshelf to fall on an employee when he pulled a telephone cord out of the wall did not commit an assault because the student could not have been aware that pulling the cord out of the wall would cause the bookshelf to fall and injure someone. Each situation is unique and must be examined based on its own facts.

The employee was assaulted… Now what?

            When a school employee is physically injured because of an assault and needs time off work to recuperate, it is that employee’s duty to request to be placed on paid assault leave. The District is under no obligation to initiate this process, although the District could choose to inform an employee of the availability of assault leave. Importantly, when an employee requests to be placed on assault leave, the District must immediately place that employee on assault leave. Even if there is doubt as to whether the employee was assaulted or whether the employee was physically injured to the degree that recuperation is required, the District still has a duty to immediately place the employee on assault leave. Then, the District can investigate the assault allegation and determine if it was appropriate for the employee to be on assault leave.

How long does the employee remain on assault leave?

            The employee remains on assault leave for the number of days necessary to recuperate from all physical injuries sustained as a result of the assault, up to two years. As stated above, the law gives the District the right to investigate the employee’s claims and injuries. It is not necessary to continue assault leave based merely on an employee’s subjective report of pain. Rather, the District can investigate to determine if the employee has recovered health or strength from all physical injuries sustained as a result of the assault. If the employee cannot do his or her job because of the injury sustained, then the employee is entitled to assault leave. An employee who has residual pain or may still be in therapy may not require additional days off to recuperate. If the District later determines, through its investigation, that the employee remained on assault leave for a longer time than the employee needed to recuperate from injuries, then the law gives the District the right to change the employee’s assault leave status and to charge the excess leave days taken against the employee’s accrued personal leave, and even against the employee’s pay if the employee does not have sufficient accrued personal leave days available. For example, if the District determined, through its investigation, that Mr. Smith’s doctor concluded that he recuperated from his injuries on Monday, but Mr. Smith returned to work on Friday, the District has the right to charge Mr. Smith four accrued personal days of leave for the four days of assault leave he used beyond what he was entitled to receive.

            It is critical that assault leave issues be examined thoroughly, taking into account all facts related to the assault and all facts related to any injuries, including witness statements, video(s), and medical records. Each decision to retain an employee on assault leave requires an individual investigation and decision.

            This is just an overview of the assault leave statute and is not intended to be legal advice. Please contact the school law attorneys at Brackett & Ellis if you need help navigating an assault leave matter. We can be reached at (817) 338-1700.


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