Current through Register Vol. 50, No. 6, December 1, 2023
RELATES TO: KRS 151B.035, 29 C.F.R. 825, 29 U.S.C. 201-219, 2601-2654
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; 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; Crt eff. 11-16-2018.
STATUTORY AUTHORITY: KRS 151B.035(11)