780 KAR 6:062. Attendance, compensatory time and leave for unclassified service

Link to law: http://www.lrc.ky.gov/kar/780/006/062.htm
Published: 2015

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      780

KAR 6:062. Attendance, compensatory time and leave for unclassified service.

 

      RELATES

TO: KRS 151B.035, 29 C.F.R. 825, 29 U.S.C. 201-219, 2601-2654

      STATUTORY

AUTHORITY: KRS 151B.035(11)

      NECESSITY,

FUNCTION, AND CONFORMITY: KRS 151B.035(11) requires the executive director of

the Office of Career and Technical Education to promulgate administrative

regulations governing the unclassified service. The Family and Medical Leave

Act of 1993, 29 U.S.C. 2601 to 2654, as implemented by 29 C.F.R. Part 825, requires

the granting of Family and Medical Leave. This administrative regulation

establishes the attendance, compensatory time and leave requirements for

unclassified service staff.

 

      Section

1. Attendance. (1) A full-time employee shall be required to work thirty-seven

and one-half (37 1/2) hours per week unless otherwise specified by the

appointing authority or his designee.

      (2)

The appointing authority or his designee may require employees to work hours

and work days other than the normal schedule if it is in the best interest of

the agency. An employee shall be given as much advance notice as possible if a

schedule is changed.

      (3)

The employee shall be required to give reasonable notice in advance of absence

from a work station.

      (4)

An employee shall be allowed up to two (2) professional days for the purpose of

continuing staff development or participation in professional organization

workshops and meetings without loss of pay.

 

      Section

2. Compensatory Leave and Overtime. (1) Accrual of compensatory leave and

overtime.

      (a)

An appointing authority shall comply with the overtime and compensatory leave

provisions of the Fair Labor Standards Act (FLSA), 29 U.S.C. Chapter 8.

      (b)

An employee who is directed to work, or who requests and is authorized to work,

in excess of the prescribed hours of duty shall be granted compensatory leave

or paid overtime subject to the provisions of the Fair Labor Standards Act, the

Kentucky Revised Statutes and this administrative regulation.

      (c)

An employee deemed to be "exempt" under the provisions of the FLSA

shall accumulate compensatory time on an hour-for-hour basis for hours actually

worked in excess of his regular work schedule.

      (d)

An employee deemed to be "nonexempt" by the provisions of the FLSA

shall be paid for all hours worked in excess of forty (40) hours per week.

      (e)

Compensatory leave shall be accumulated or taken off in one-quarter (1/4) hour

increments.

      (f)

The maximum amount of compensatory leave that may be carried forward from one

(1) pay period to another shall be 200 hours.

      (g)

An employee who is transferred or otherwise moved from the jurisdiction of one

(1) agency to another shall retain his compensatory leave in the receiving

agency.

      (2)

Reductions in compensatory leave balances.

      (a)

An unclassified employee may use accumulated compensatory time if:

      1.

Practicable;

      2.

Requested in advance; and

      3.

Approved by the respective supervisor.

      (b)

An appointing authority may require an employee who has a balance of at least

100 hours compensatory leave to use compensatory leave before annual leave,

unless the employee's annual leave balance exceeds the maximum number of hours

that may be carried forward under Section 3(2)(f) of this administrative

regulation, and shall otherwise allow the use of compensatory leave if it will

not unduly disrupt the operations of the agency.

      (c)

If an employee's prescribed hours of duty are normally less than forty (40)

hours per week, the employee shall receive compensatory leave for the number of

hours worked that:

      1.

Exceed the number of normally prescribed hours of duty; and

      2.

Do not exceed the maximum amount of 200 compensatory hours.

      (d)

Upon separation from state service, an employee shall be paid for all unused

compensatory leave at the greater of the:

      1.

Regular hourly rate of pay; or

      2.

Average regular rate of pay for the final three (3) years of employment.

 

      Section

3. Annual Leave. (1) Accrual of annual leave.

      (a)

Each full-time employee shall accumulate annual leave at the following rate:



Months

of Service





Annual

Leave Days







0-59

months





1

leave day per month; 12 per year







60-119

months





1

1/4 leave days per month; 15 per year







120-179

months





1

1/2 leave days per month; 18 per year







180-239

months





1

3/4 leave days per month; 21 per year







240

months & over





2

leave days per month; 24 per year





      (b)

A full-time employee shall have worked, or been on paid leave, other than

educational leave with pay, for 100 or more regular hours per month to accrue

annual leave.

      (c)

Accrued leave shall be credited on the first day of the month following the

month in which the annual leave is earned.

      (d)

In computing months of total service for the purpose of earning annual leave,

only the months for which an employee earned annual leave shall be counted.

      (e)

A former employee who has been rehired, except as provided in paragraph (f) of

this subsection, and who was dismissed for cause from state service shall

receive credit for service prior to the dismissal, except if the dismissal

resulted from a violation of KRS 151B.090.

      (f)

An employee, who has retired from a position covered by a state retirement

system, who is receiving retirement benefits, and who returns to state service,

shall not receive credit for annual months of service prior to retirement.

      (g)

Part-time, temporary, or seasonal employees shall not be entitled to accrue

annual leave.

      (2)

Use and retention of annual leave.

      (a)

Annual leave shall be used in increments of hours or of one-quarter (1/4)

hours.

      (b)

Except as provided in paragraph (c) of this subsection, an employee who makes a

timely request for annual leave shall be granted annual leave by the appointing

authority or his designee up to at least the amount of time earned that year,

if the operating requirements of the agency permit.

      (c)

An appointing authority or his designee may require an employee who has a

balance of at least 100 hours of compensatory leave to use compensatory leave

before the employee's request to use annual leave is granted, unless the

employee's annual leave balance exceeds the maximum number of hours that may be

carried forward under paragraph (f) of this subsection.

      (d)

Absence due to sickness, injury, or disability in excess of the amount

available for those purposes shall, at the request of the employee, be charged

against annual leave.

      (e)

An employee who is transferred or otherwise moved from the jurisdiction of one

(1) agency to another shall retain accumulated annual leave in the receiving

agency.

      (f)

Annual leave may be carried forward from one (1) calendar year to the next as

provided in this paragraph:



Months

of Service





Maximum

Amount







0-59

months





Thirty

(30) workdays







60-119

months





Thirty-seven

(37) workdays







120-179

months





Forty-five

(45) workdays







180-239

months





Fifty-two

(52) workdays







240

months & over





Sixty

(60) workdays





      (g)

Leave in excess of the maximum amounts specified in paragraph (f) of this

subsection shall be converted to sick leave at the end of the calendar year or

upon retirement, whichever comes first.

      (h)

The amount of annual leave that may be carried forward and the amount of annual

leave that may be converted to sick leave shall be determined by computing

months of service as provided by subsection (1)(d) of this section.

      (3)

Annual leave on separation.

      (a)

An employee who is separated by proper resignation or retirement shall be paid

in a lump sum for accumulated annual leave not to exceed the maximum amounts

established by subsection (2)(f) of this section. Following payment of annual

leave at resignation, leave remaining after the payment of the maximum provided

shall be removed from the balance.

      (b)

An employee who is laid off shall be paid in a lump sum for all accumulated

annual leave.

      (c)

An employee in the unclassified service who resigns or terminates one (1)

workday and returns to certified and equivalent service the next workday shall

retain accumulated annual leave in the receiving agency.

      (d)

An employee who has been dismissed for cause related to misconduct or who has

failed, without proper excuse, to give proper notice of resignation or

retirement shall not be paid for accumulated annual leave.

      (e)

Upon the death of an employee, the estate shall be entitled to receive pay for

the unused portion of the employee's accumulated annual leave.

      (f)

An employee may request in writing that his accumulated annual leave not be

paid upon resignation, and that all or part of the amount of the accumulated

annual leave that does not exceed the amount established by subsection (2)(f)

of this section be waived, if:

      1.

The employee resigns, or is laid off because of an approved plan of

privatization of the services performed; and

      2.

The successor employer has agreed to credit the employee with an equal amount

of annual leave.

 

      Section

4. Sick Leave. (1) Accrual of sick leave.

      (a)

An employee, except a part-time employee, shall accumulate sick leave with pay

at the rate of one (1) working day per month.

      (b)

An employee shall have worked or been on paid leave, other than educational

leave, for 100 or more regular hours in a month to accrue sick leave.

      (c)

An employee shall be credited with additional sick leave upon the first day of

the month following the month in which the sick leave is earned.

      (d)

A full-time employee who completes 120 months of total service with the state

shall be credited with ten (10) additional days of sick leave upon the first

day of the month following the completion of 120 months of service.

      (e)

A full-time employee who completes 240 months of total service with the state

shall be credited with ten (10) additional days of sick leave upon the first

day of the month following the completion of 240 months of service.

      (f)

In computing months of total service for the purpose of crediting sick leave,

only the months for which an employee earned sick leave shall be counted.

      (g)

The total service shall be verified before the leave is credited to the

employee's record.

      (h)

An employee, who retired from a position covered by a state-administered

retirement system, who is receiving retirement benefits and who returns to

state service, shall not receive credit for sick months of service prior to

retirement.

      (i)

A former employee who is appointed or reemployed, other than a former employee

receiving benefits under a state-administered retirement system, shall receive

credit for the unused sick leave balance credited upon the separation and shall

receive credit for prior sick months of service.

      (j)

An employee dismissed for cause who has been rehired to state service shall

receive credit for sick months of service prior to the dismissal, except if the

dismissal resulted from a violation of KRS 151B.090.

      (k)

Sick leave may be accumulated with no maximum.

      (2)

Use and retention of sick leave with pay.

      (a)

An appointing authority or his designee shall grant or may require the use of

accrued sick leave with pay if an employee:

      1.

Is unable to work due to medical, dental or optical examination or treatment;

      2.

Is disabled by illness or injury. The appointing authority or his designee may

require the employee to provide a doctor's statement certifying the employee's

inability to perform his duties for the days or hours sick leave is requested;

      3.

Is required to care for or transport a member of the immediate family in need

of medical attention for a reasonable period of time. The appointing authority

or his designee may require the employee to provide a doctor's statement

certifying the employee's need to care for a family member;

      4.

Would jeopardize the health of the employee or others at the work station

because of a contagious disease or demonstration of behavior that might

endanger the employee or others;

      5.

Has lost by death a spouse, parent, grandparent, child, brother or sister, or

the spouse of any of them, or, if granted by the appointing authority, another

relative of close association. Leave under this paragraph shall be limited to

three (3) days; or

      6.

Requires leave for the birth, placement or adoption of a child.

      (b)

At the termination of sick leave with pay, the appointing authority or his

designee shall return the employee to his former position.

      (c)

Sick leave shall be used in increments of hours or increments of one-quarter

(1/4) hours.

      (d)

An employee who is transferred or otherwise moved from the jurisdiction of one

(1) agency to another shall retain his accumulated sick leave in the receiving

agency.

      (e)

An employee shall be credited for accumulated sick leave if separated by proper

resignation, layoff or retirement.

      (3)

Sick leave without pay.

      (a)

An appointing authority or his designee shall grant sick leave without pay to

an employee for the duration of an employee's impairment by injury or illness,

if:

      1.

The total continuous leave does not exceed one (1) year; and

      2.

The employee has used or been paid for all accumulated annual, compensatory,

and sick leave, unless the employee has requested to retain up to ten (10) days

of accumulated sick leave.

      (b)

For continuous leave without pay in excess of thirty (30) working days,

excluding holidays, the appointing authority or his designee shall notify the

employee in writing of the leave without pay status.

      (c)

The appointing authority or his designee may require a periodic doctor's

statement during the year attesting to the employee's continued inability to

perform the essential functions of his duties with or without reasonable

accommodation.

      (d)

An appointing authority may grant sick leave without pay to an employee, who

does not quality for family and medical leave due to lack of service time and

who has exhausted all accumulated paid leave if the employee is required to

care for a member of the immediate family for a period not to exceed thirty

(30) working days.

      (e)

If an employee has given notice of his ability to resume his duties following

sick leave without pay, the appointing authority or his designee shall return

the employee to the original position or to a position for which he is

qualified and which resembles his former position as closely as circumstances

permit.

      (f)

If reasonable accommodation is requested, the employee shall:

      1.

Inform the employer; and

      2.

Upon request, provide supportive documentation from a certified professional.

      (g)

An employee shall be considered to have resigned if he:

      1.

Has been on one (1) year continuous sick leave without pay;

      2.

Has been requested by the appointing authority or his designee in writing to

return to work at least ten (10) days prior to the expiration of sick leave;

      3.

Is unable to return to his former position;

      4.

Has been given priority consideration by the appointing authority for a vacant,

budgeted position with the same agency, for which he is qualified and is

capable of performing its essential functions with or without reasonable

accommodation; and

      5.

Has not been placed by the appointing authority or his designee in a vacant

position.

      (h)

Sick leave granted under this subsection shall not be renewable after the

employee has been medically certified as able to return to work.

      (i)

An employee who has resigned under paragraph (g) of this subsection shall

retain reinstatement privileges.

      (4)

Workers' compensation.

      (a)

If an absence is due to illness or injury for which workers' compensation

benefits are received, accumulated sick leave may be used to maintain regular

full salary.

      (b)

If paid sick leave is used to maintain regular full salary, workers'

compensation pay benefits shall be assigned to the state for the period of time

the employee received paid sick leave.

      (c)

The employee's sick leave shall be immediately reinstated to the extent that

workers' compensation benefits are assigned.

      (5)

Application for sick leave and supporting documentation.

      (a)

An employee shall file a written application for sick leave with or without pay

within a reasonable time.

      (b)

Except for an emergency illness, an employee shall request advance approval for

sick leave for medical, dental, or optical examinations, and for sick leave

without pay.

      (c)

If the employee is too ill to work, an employee shall notify the immediate

supervisor or the designee. Failure, without good cause, to do so in a

reasonable period of time shall be cause for denial of sick leave for the

period of absence.

      (d)

An appointing authority or his designee may, for good cause and on notice,

require an employee to supply supporting evidence in order to receive sick

leave.

      (e)

A medical certificate may be required, signed by a licensed practitioner and

certifying to the employee's incapacity, examination, or treatment.

      (f)

An appointing authority or his designee shall grant sick leave if the

application is supported by acceptable evidence but may require confirmation if

there is reasonable cause to question the authenticity of the certificate or

its contents.

 

      Section

5. Family and Medical Leave. (1) An appointing authority or his designee shall

comply with the requirements of the Family and Medical Leave Act (FMLA) of

1993, 29 U.S.C. 2601, et seq., and the federal regulations implementing the

Act, 29 C.F.R. Part 825.

      (2)

An employee in state service shall qualify for twelve (12) weeks of unpaid

family and medical leave if the employee has:

      (a)

Completed twelve (12) months of service; and

      (b)

Worked or been on paid leave at least 1,250 hours in the twelve (12) months

immediately preceding the first day of family and medical leave.

      (3)

Family and medical leave shall be awarded on a calendar year basis.

      (4)

An employee shall be entitled to a maximum of twelve (12) weeks of accumulated

annual or sick leave, unpaid family and medical leave, or a combination

thereof, for the birth, placement, or adoption of a child.

      (5)

While an employee is on unpaid family and medical leave, the state contribution

for health and life insurance shall be maintained by the employer.

      (6)

If the employee would qualify for family and medical leave, but has an annual,

compensatory, or sick leave balance, the agency shall not designate the leave

as FMLA leave until:

      (a)

The employee's leave balance has been exhausted; or

      (b)

The employee requests to reserve ten (10) days of accumulated sick leave and be

placed on unpaid FMLA leave.

 

      Section

6. Court Leave. (1) An employee shall be entitled to court leave during his

scheduled working hours without loss of time or pay for the amount of time

necessary to:

      (a)

Comply with a subpoena by a court, or administrative agency or body of the

federal or state government or any political subdivision thereof; or

      (b)

Serve as a juror or a witness, unless the employee or a member of his family is

a party to the proceeding.

      (2)

Court leave shall include necessary travel time.

      (3)

If relieved from duty as a juror or witness during his normal working hours,

the employee shall return to work or use annual or compensatory leave.

      (4)

An employee shall not be required to report as court leave attendance at a

proceeding that is part of his assigned duties.

 

      Section

7. Military Leave. (1) Upon request, an employee who is an active member of the

United States Army Reserve, the United States Air Force Reserve, the United

States Naval Reserve, the United States Marine Corps Reserve, the United States

Coast Guard Reserve, the United States Public Health Service Reserve, or the

Kentucky National Guard shall be relieved from the civil duties, to serve under

order or training duty without loss of regular compensation for a period not to

exceed the number of working days specified in KRS 61.394 for a federal fiscal

year.

      (2)

The absence shall not be charged to leave.

      (3)

Absence that exceeds the number of working days specified in KRS 61.394 for a

federal fiscal year shall be charged to annual leave, compensatory leave, or

leave without pay.

      (4)

The appointing authority may require a copy of the orders requiring the

attendance of the employee before granting military leave.

      (5)

The appointing authority shall grant an employee entering military duty a leave

of absence without pay for a period of the duty not to exceed six (6) years.

Upon receiving military duty leave of absence, all accumulated annual and

compensatory leave shall be paid in a lump sum, if requested by the employee.

 

      Section

8. Voting and Election Leave. (1) An employee who is eligible and who is

registered to vote shall be allowed, upon prior request and approval, four (4)

hours for the purpose of voting.

      (2)

An election officer shall receive additional leave if the total leave for

election day does not exceed a regular workday.

      (3)

The absence shall not be charged against leave.

      (4)

An employee who is permitted or required to work during the employee's regular

work hours, in lieu of voting leave, shall be granted compensatory leave on an

hour-for-hour basis for the hours during the time the polls are open, up to a

maximum of four (4) hours.

 

      Section

9. Special Leave of Absence. (1) If approved by the secretary, an appointing

authority or his designee may grant a leave of absence for continuing education

or training.

      (a)

Leave may be granted for a period not to exceed twenty-four (24) months or the

conclusion of the administration in which the employee is serving, whichever

comes first.

      (b)

If granted, leave shall be granted either with pay (if the employee

contractually agrees to a service commitment) or without pay.

      (c)

Leave shall be restricted to attendance at a college, university, vocational or

business school for training in subjects that relate to the employee's work and

shall benefit the state.

      (2)

An appointing authority or his designee, with approval of the secretary, may

grant an employee a leave of absence without pay for a period not to exceed one

(1) year for purposes other than specified in this administrative regulation

that are of tangible benefit to the state.

      (3)

The appointing authority or his designee may place an employee on special leave

with pay for investigative purposes for a period of time not to exceed sixty

(60) working days pending an investigation of an allegation of employee

misconduct.

      (a)

The employee shall be notified in writing by the appointing authority or his

designee that the employee is being placed on special leave for investigative

purposes, and the reasons for being placed on leave.

      (b)

If this investigation reveals no misconduct on behalf of the employee, all

records relating to the investigation shall be purged from the Office of Career

and Technical Education files.

      (c)

The appointing authority or his designee shall notify the employee, in writing,

of the completion of the investigation and the action taken. This notification

shall be made to the employee, whether the employee has remained in state

service, or has voluntarily resigned in the interim.

 

      Section

10. Absence Without Leave. (1) An employee who is absent from duty without

prior approval shall report the reason for the absence to the supervisor

immediately.

      (2)

Unauthorized or unreported absence shall:

      (a)

Be considered absence without leave;

      (b)

Be treated as leave without pay for an employee covered by the provision of the

Fair Labor Standards Act; and

      (c)

Constitute grounds for disciplinary action.

      (3)

An employee who has been absent without leave or notice to the supervisor for a

period of ten (10) working days shall be considered to have resigned the employment.

 

      Section

11. Absences Due to Adverse Weather. (1) An employee, who is not designated for

mandatory operations, and who chooses not to report to work or chooses to leave

early in the event of adverse weather conditions such as tornado, flood, blizzard,

or ice storm, shall have the time of the absence reported as:

      (a)

Charged to annual or compensatory leave;

      (b)

Taken as leave without pay, if annual and compensatory leave have been

exhausted; or

      (c)

Deferred in accordance with subsections (3) and (4) of this section.

      (2)

An employee who is on prearranged annual, compensatory, or sick leave shall

charge leave as originally requested.

      (3)

If operational needs allow, except for an employee in mandatory operations,

management shall make every reasonable effort to arrange schedules whereby an

employee shall be given an opportunity to make up time not worked rather than

charging it to leave.

      (4)

An employee shall not make up work if the work would result in the employee

working more than forty (40) hours in a workweek.

      (a)

Time lost shall be made up within four (4) months of the occurrence of the

absence. If it is not made up within four (4) months, annual or compensatory

leave shall be deducted to cover the absence, or leave without pay shall be

charged if no annual or compensatory leave is available.

      (b)

If an employee transfers or separates from employment before the leave is made

up, the leave shall be charged to annual or compensatory leave or deducted from

the final paycheck.

      (5)

If catastrophic, life-threatening weather conditions occur, as created by a

tornado, flood, ice storm, or blizzard, and it becomes necessary for

authorities to order evacuation or shutdown of the place of employment, the provisions

established in this subsection shall apply.

      (a)

An employee who is required to evacuate or who would report to a location that

has been shut down shall not be required to make up the time that is lost from

work during the period officially declared hazardous to life and safety.

      (b)

An employee who is required to work in an emergency situation shall be

compensated pursuant to the provisions of Section 2 of this administrative

regulation and the Fair Labor Standards Act as amended.

 

      Section

12. Blood Donation Leave. (1) An employee who, during regular working hours,

donates blood at a licensed blood center certified by the Food and Drug

Administration shall receive four (4) hours leave time, with pay, for the

purpose of donating and recuperating from the donation.

      (2)

Leave granted under this section shall be used at the time of the donation

unless circumstances as specified by the supervisor requires the employee to

return to work. If the employee returns to work, the unused portion of the

leave time shall be credited as compensatory leave.

      (3)

An employee shall request leave in advance to qualify for blood donation leave.

      (4)

An employee who is deferred from donating blood shall not:

      (a)

Be charged leave time for the time spent in the attempted donation; and

      (b)

Qualify for the remainder of the blood donation leave.

 

      Section

13. Eligibility for State-paid Health and Life Insurance Benefits. (1) An

employee who is eligible for state-paid life insurance benefits under the

provisions of KRS Chapter 151B shall have worked or been on paid leave or

family and medical leave, other than educational leave, during any part of the

previous month.

      (2)

An employee who is eligible for state-paid health insurance benefits under the

provisions of KRS Chapter 151B shall have worked or been on paid leave or family

and medical leave, other than educational leave, during any part of the

previous pay period.

      (3)

If an employee is unable to work and uses paid leave to qualify for the

state-paid health and life insurance benefits, the employee shall use paid leave

days consecutively. (26 Ky.R. 2162; Am. 27 Ky.R. 109; eff. 7-17-2000; 35 Ky.R.

1891; 2245; eff. 5-1-2009; 36 Ky.R. 933; eff. 1-4-2010.)