Current through Rules and Regulations filed through March 20, 2024
(1)
Introduction:
This temporary State Personnel Board Rule shall be read in
conjunction with the provisions of State Personnel Board Rule
478-1-.23, Family and Medical Leave,
(Rule 23) and State Personnel Board Rule
478-1-.16, Absence from Work, (Rule
16) and shall provide for compliance with the federal Families First
Coronavirus Response Act (FFCRA) enacted on March 18, 2020.
(a) The Emergency Family Medical Leave
Expansion Act of the FFCRA provides a job-protected leave entitlement for
eligible employees who are incapable of teleworking due to a need for leave to
care for the employee's son or daughter under 18 years of age if the school or
place of care has been closed, or the childcare provider of the son or daughter
is unavailable due to a public health emergency. State agencies shall
administer the Emergency Family and Medical Leave in accordance with the FFCRA
and any related regulations.
(b)
The Emergency Paid Sick Leave Act of the FFCRA provides an administrative leave
benefit which provides for 80 hours of paid leave for six qualifying reasons
(see Section (5)(b)). State agencies shall administer the Emergency Paid Sick
Leave Act in accordance with the FFCRA and any related regulations.
(c) Each state employer should establish
procedures for employees to request and receive approval for absences from work
that meet the eligibility requirements for Emergency Family and Medical Leave
or Emergency Paid Sick Leave. An employee is expected to return to work and/or
telework as scheduled at the expiration of the approved absence. If an
extension is necessary, the employee must follow the agency's established
procedures for requesting an extension prior to the leave expiration or adhere
to other agency procedures for requesting an extension of leave.
(d) Prior to engaging in other employment,
including self-employment, while on leave employees must comply with the notice
and other requirements set forth in State Personnel Board Rule
478-1-.07, Outside
Employment.
(e) State employers
shall not discriminate or retaliate against an individual for exercising any
right to Emergency Family and Medical Leave or Emergency Paid Sick
Leave.
(f) To the extent that the
U.S. Department of Labor or any other federal administration authority issues
regulations that conflict with this Rule, the federally issued regulations
shall control.
(2)
Applicability:
The policies and procedures described in this Rule apply to all
agencies of the Executive Branch, excluding the Board of Regents of the
University System of Georgia.
(3)
Definitions:
For the purposes of this Rule, the following terms and
definitions apply in addition to those in
478-1-.02, Terms and
Definitions:
(a) "Administrative
leave" means paid time off for specified reasons defined in state or federal
law. This paid time off is not charged to accrued leave and the duration is
defined in the applicable statute.
(b) "Childcare provider" means a provider who
receives compensation for providing childcare services on a regular
basis.
(c) "Public health
emergency" means an emergency with respect to COVID-19 as declared by the
Governor of Georgia, the federal government, or a local authority.
(d) "Rolling 12-month Period" or "Rolling
Year" is the 12-month period measured backward from the date an employee uses
any Family and Medical Leave. Under the "rolling year," each time an employee
takes Family and Medical Leave, the remaining leave entitlement would be the
balance of the 12 weeks which has not been using during the immediately
preceding 12 months.
(e) "School"
means an elementary school, including nonprofit institutional day or
residential schools and public elementary charter schools that provide
elementary education, as determined under state law. School also means
secondary school, including nonprofit institutional day or residential schools
and public secondary charter schools that provide secondary education, as
determined under state law.
(f)
"Workday" means a day an employee is regularly scheduled to work.
(4)
Emergency Expansion of
Family and Medical Leave:
(a) Employee
Eligibility:
1. For purposes of determining
an employee's eligibility for Emergency Family and Medical Leave, the state is
considered one employer.
2. To be
eligible an employee must have been employed for at least thirty (30) calendar
days.
3. Time worked for the State
of Georgia in any employment capacity will count toward meeting the eligibility
criteria in Section (4)(a)2 above. Such employment includes full-time,
part-time, temporary, and seasonal employment, whether paid on a salaried or
hourly basis. Time worked for a state employer as a worker assigned from a
temporary staffing agency shall also be counted if the same worker is
subsequently hired by the state employer.
(b) Qualifying Need Related to a Public
Health Emergency:
The only qualifying need under which an eligible employee may
request Emergency Family and Medical Leave is when the employee is unable to
work or telework due to a need for leave to care for the employee's son or
daughter under 18 years of age if the school or place of care has been closed,
or the childcare provider of the son or daughter is unavailable to due to a
public health emergency.
(c)
Leave Entitlement:
1. An eligible employee is
entitled to take up to 12 workweeks of Family and Medical Leave during a
rolling 12-month period, measured backward from the date an employee uses any
Family and Medical Leave, for any qualifying reason provided in State Personnel
Board Rule 23, Family and Medical Leave, or for the qualifying need related to
a public health emergency as described in Section (4)(b) above.
2. Intermittent Leave:
(i) Eligible employees may take Emergency
Family and Medical Leave on an intermittent or reduced schedule basis, upon
approval by the state employer, provided intermittent leave is granted in a
consistent manner to all staff.
(ii) Any employee requesting to take
Emergency Family and Medical Leave on an intermittent basis must have the
schedule of the leave approved by the state employer and must receive prior
approval for any adjustments to the schedule.
(d) Paid Leave Provisions:
State employers shall provide compensation for each workday of
Emergency Family and Medical Leave an employee takes after the first ten (10)
workdays of such leave as follows:
1.
For full-time, salaried employees, the amount of compensation provided for
Emergency Family and Medical Leave shall be no less than two-thirds (2/3) of
the employee's regular rate of pay provided such pay shall never exceed $200.00
per day or $10,000.00 in the aggregate.
2. For part-time and/or hourly employees, the
amount of compensation provided for Emergency Family and Medical Leave shall be
based upon the number of hours the employee would otherwise normally be
scheduled to work at no less than two-thirds (2/3) the regular rate of pay per
hour. Such pay shall never exceed $200.00 per day or $10,000.00 in the
aggregate.
If the employee's hours normally vary from week to week, to the
extent that the state employer is unable to determine the number of hours the
employee would have worked with certainty, then the state employer shall
calculate the number of hours as follows:
(i) The average number of hours the employee
was scheduled to work each day over the 6-month period ending on the date on
which the employee is to begin the Emergency Family and Medical
Leave.
(ii) If the employee did not
work over a 6-month period, then the number of hours shall be based on the
reasonable expectation of the employee at the time of hire of the average
number of hours per day the employee would normally be scheduled to
work.
3. An employee may
elect to use accrued annual leave, personal leave, holiday deferral leave,
compensatory time, or emergency paid sick leave (see Section (5) below) during
the first ten (10) workdays of Emergency Family Medical Leave.
(e) Employee Notice Requirements:
1. Where the need for Emergency Family and
Medical Leave is foreseeable, the employee is expected to provide the state
employer the maximum notice practicable. Where the need arises unexpectedly,
the state employer may require the employee to follow customary call-in
procedures.
2. A state employer may
require that an employee's notice of leave include the anticipated start date
and the anticipated duration but must consider the employee's potential
inability to know when a school or childcare provider may reopen or become
available again.
(f)
Reinstatement Requirements:
At the expiration of Emergency Family Medical Leave, an
employee is entitled to reinstatement to the same or an equivalent position
held prior to the leave.
1. An
equivalent position is one which has substantially similar duties and
responsibilities and equivalent benefits, pay, and other terms and conditions
of employment.
2. There is no
greater right to reinstatement than if the employee had remained at work,
rather than take the leave. For example, if the position or equivalent position
held by the employee when the leave began does not exist due to economic
conditions or other changes in the operation of the agency that affect
employment and were caused by the public health emergency during the period of
leave, then the employee is not entitled to reinstatement. See Section (4)(f)3
below regarding the FFCRA requirement to contact the employee regarding future
equivalent opportunities.
3. Period
of Required Contact:
If the position or an equivalent position does not exist when
the leave expires, the state employers with fewer than twenty-five (25)
employees must make reasonable efforts to contact the employee if such an
equivalent position becomes available for a period of one (1) year. The one (1)
year must begin on the date the qualifying need related to the public health
emergency ends or the date that is 12 weeks after the date on which the
employee's leave commences, whichever is earlier.
(5)
Emergency Paid Sick
Leave:
(a) Employee Eligibility:
1. All employees are eligible, regardless of
tenure, to receive administrative Emergency Paid Sick Leave if the employee is
unable to work or telework due to an approved use for leave listed below in
Section (5)(b).
2. No employee
shall be required to use other accrued leave or compensatory time prior to
Emergency Paid Sick Leave.
3. No
employee shall be required to identify a replacement for his or her absence
while taking Emergency Paid Sick Leave.
(b) Approved Uses of Emergency Paid Sick
Leave:
1. The employee is subject to a
federal, state, or local quarantine or isolation order related to
COVID-19.
2. The employee has been
advised by a healthcare provider to self-quarantine due to concerns related to
COVID-19.
3. The employee is
experiencing symptoms of COVID-19 and is seeking medical diagnosis.
4. The employee is caring for an individual
who is subject to a federal, state, or local quarantine or isolation order or
has been advised by a healthcare provider to self-quarantine.
5. The employee is caring for a son or
daughter of such employee if the school or place of care of the son or daughter
has been closed or the childcare provider of such son or daughter is
unavailable due to COVID-19 precautions.
6. The employee is experiencing any other
substantially similar condition specified by the Secretary of Health and Human
Services in consultation with the Secretary of the Treasury and the Secretary
of Labor.
(c) Amount of
Leave:
1. Full-time employees are entitled to
80 hours of leave.
2. Part-time
employees are entitled to the number of hours such employee works, on average,
over a two-week period.
3. The
amount of leave for employees on irregular schedules shall be based on the
average number of hours over a two-week period the employee worked the six (6)
months prior to taking Emergency Paid Sick Leave. Employees who have been
employed for less than six (6) months prior to taking Emergency Paid Sick Leave
shall receive the average number of hours the employee reasonably expected to
work over a two-week period upon hire.
4. Emergency Paid Sick Leave shall not carry
over to the following year.
(d) Amount of Compensation Due:
1. For approved uses of Emergency Paid Sick
Leave under Sections (5)(b) 1 - 3 above, the employee's leave is calculated at
the regular rate of pay capped at $511.00 per day and $5,110.00 in the
aggregate.
2. For approved uses of
Emergency Paid Sick Leave under Sections (5)(b) 4 - 6 above, the employee's
leave is calculated at two-thirds (2/3) the regular rate of pay capped at
$200.00 per day and $2,000.00 in the aggregate.
(e) Employee Notice Requirements:
1. Where the need for Emergency Paid Sick
Leave is foreseeable, the employee is expected to provide the state employer
the maximum notice practicable. Where the need arises unexpectedly, the state
employer may require the employee to follow customary call-in
procedures.
2. A state employer may
require that an employee's notice of leave include the anticipated start date
and the anticipated duration, but must take into account the employee's
potential inability to know when a school or childcare provider may reopen or
become available again, or when a quarantine or isolation order or
recommendation may end.
(f) Interaction with Emergency Expansion of
Family and Medical Leave:
1. At the request
of an employee, Emergency Paid Sick Leave shall be approved to be used during
the first ten (10) unpaid workdays of Emergency Family and Medical
Leave.
2. Employees may request to
use accrued annual leave, personal leave, holiday deferral leave, or
compensatory time, rather than Emergency Paid Sick Leave, to compensate the
first ten (10) unpaid workdays of Emergency Family and Medical Leave.
(6)
Employer
Notice Requirement:
Each state employer shall post and keep posted, in conspicuous
locations on agency premises where notices to employees are customarily placed,
the FFCRA notice prepared by and approved by the US Secretary of Labor. State
employers may satisfy this requirement by emailing or direct mailing the model
notice to employees or posting the model notice on an employee information
internal or external website until such time the state employer can post the
notice on agency premises.
(7)
Effective Date and Sunset
Provision:
This Board Rule shall become effective on April 1, 2020, upon
the Governor's signature, and shall expire on December 31,
2020.
O.C.G.A.
§§
45-20-3, 45-20-3.1, 45-20-4;
§
45-20-16.
Federal Law References: Pub. L. No. 116-127- Families First Coronavirus
Response Act, 29 U.S.C. §
2601, et. seq. - Family and Medical Leave Act,
29 C.F.R. Part 825 - US DOL Family and Medical Leave
Regulations.
