Other Leave Rights of West Virginia School Employees

Other Leave Rights of West Virginia School Employees Josh Cottle Howard Seufer October 29, 2020

This presentation reviews leave rights of West Virginia public school employees other than Emergency Paid Sick Leave and Expanded Family Medical Leave under the CARES Act

A Word About This Presentation • We speak in general terms today. The specific facts of each situation can make a difference in the legal principles that apply • This presentation must not be treated as legal advice about any specific situation • Due to the rapidly changing nature of the law, information in this presentation may become outdated • When in doubt, don’t act or rely upon the information contained in this presentation without seeking legal advice

Conceptually • There are two broad categories of leave available to employees: § Paid leave § Unpaid leave, also known by a term of art: “leave of absence”

Paid leave • The employee is absent from their assigned duties, retains their job, and is paid a salary even though they are not at work • Depending on the kind of paid leave, the salary may be full or fractional • While on paid leave, the employee continues to earn seniority and accumulate paid leave. Other benefits are typically not affected except as may be required by the rules of the CPRB or PEIA

Unpaid leave • The employee is absent from their assigned duties, is not paid a salary, and typically has a right to either return to the same job or a similar assignment of position or duties and benefits • In some instances, the leave of absence may be intermittent • While on unpaid leave, the employee’s seniority continues to accumulate. Other benefits are typically not affected except as may be required by the rules of the CPRB or PEIA

THE KINDS OF PAID LEAVE TYPICALLY USED BY SCHOOL EMPLOYEES

Paid Leaves • Personal leave per W. Va. Code § 18 A-4 -10 • A number of paid leaves that are not charged to the employee’s personal leave. Chief among them: § § Grievance leave under W. Va. Code § 6 C-2 -3(p) Jury duty leave under W. Va. Code § 18 A-5 -3 Witness subpoenas under W. Va. Code § 18 -5 -3 a County-instituted paid vacation & other paid leave

“Personal Leave” • “At the beginning of the employment term, any full-time employee of a county board is entitled annually to at least one and one-half days personal leave for each employment month or major fraction thereof in the employee’s employment term. ”

“Personal Leave” • “A regular full-time employee who is absent from assigned duties due to accident, sickness, death in the immediate family, or life threatening illness of the employee’s spouse, parents or child, or other cause authorized or approved by the board, shall be paid the full salary from his or her regular budgeted salary appropriation during the period which the employee is absent, but not to exceed the total amount of leave to which the employee is entitled. ”

“Personal Leave” • Each employee is permitted to use four days of leave annually without regard to the cause for the absence § May use on consecutive work days only if approved by the principal or immediate supervisor, as appropriate § Employee must give notice at least 24 hours in advance, except that in the case of sudden and unexpected circumstances, notice shall be given as soon as reasonably practicable § Principal or immediate supervisor may deny use of the day if, when notice is given, either 15 % of the employees or 3 employees, whichever is greater, under their supervision have previously given notice of their intention to use that day for leave

“Personal Leave” • State Board Policy 5312 restricts the payment and charging of personal leave to an employee receiving a workers’ compensation benefit from a claim filed against the county board by which the person is employed • If awarded this benefit, “the employee shall receive personal leave compensation only to the extent the compensation is required, when added to the workers’ compensation benefit, to equal the amount of compensation regularly paid the employee”

“Personal Leave” • “Personal leave may not be used in connection with a concerted work stoppage or strike”

“Personal Leave” • The county board may establish reasonable rules for reporting and verification of absences for cause • If any error in reporting absences occurs, the county board may make necessary salary adjustments: § In the next pay after the employee has returned to duty, or § In the final pay if the absence occurs during the last month of the employment term

“Personal Leave” • “Unused personal leave shall be accumulative without limitation and is transferable within the state”

“Personal Leave” • “If an employee uses personal leave which the employee has not yet accumulated on a monthly basis and subsequently leaves the employment, the employee is required to reimburse the board for the salary or wages paid for the unaccumulated leave” • When employment ends, the employee has no right under state law to be paid by the board of education for accumulated but unused personal leave § But counties can bonus employees at end of the employment term for unused days of personal leave accumulated during that term

“Personal Leave” • Mandatory county personal leave bank under W. Va. Code § 18 A-4 -10(b) § Joint or separate for service and professional employees § Voluntary employee contributions from their accumulated personal leave, up to 2 days/school year § County rules that must cover certain issues, such as: − May cap days used by an employee − Must limit use to active employees with less than 5 days of personal leave left, and who are absent due to their own accident or illness − Cannot deduct contributions from an employee’s entitlement to “leave without cause” days

“Personal Leave” • Other ways employees may help each other by giving up accumulated but unused personal leave: § Personal leave banks for caregivers: Optional with counties W. Va. Code § 18 A-4 -10 c § Use of personal leave days by surviving spouse in certain circumstances: Optional with counties under W. Va. Code § 18 A-4 -10 d § Leave donation programs: Mandatory under W. Va. Code § 18 A-4 -10 f. Counties must adopt policies addressing certain issues

Grievance leave under W. Va. Code § 6 C-2 -3(p) • “The grievant, witnesses and an employee representative shall be granted reasonable and necessary time off during working hours to attend grievance proceedings without loss of pay and without charge to annual or compensatory leave credits” • “The grievant and an employee representative shall be granted time off during working hours, not to exceed four hours per grievance, for the preparation of the grievance without loss of pay and without charge to annual or compensatory leave credits”

Jury duty leave under W. Va. Code § 18 A-5 -3 • “Professional personnel and other persons actively engaged in school work in this State shall be required to serve on any jury during the period of his contract with a board of education unless excused therefrom by judge of the court” • “In the case of service on a jury the board shall pay the difference between that allowed for such jury service and the amount of salary due the person for such period of time”

Answering a witness subpoena under W. Va. Code § 18 -5 -3 a Any person employed by a board of education who is “subpoenaed to appear as a witness but not as a defendant in any criminal proceeding in any court of law may make such appearance without any loss of pay” “The board shall pay the employee the difference between the witness fee, exclusive of travel allowances, payable for such appearance by the court and the amount of salary due to the person for the time such employee is absent from his employment by reason of answering such subpoena”

County-instituted paid vacation & other paid personal leave under W. Va. Code § 18 A-4 -10 • Under W. Va. Code § 18 A-4 -10(a)(2), a county board may establish “other cause” for which personal leave may be used • Under W. Va. Code § 18 A-4 -10(b)(5), “a county board may supplement the leave provisions in any manner it considers advisable in accordance with applicable rules of the state Board and the provisions of this chapter and chapter 18 of this code”

THE KINDS OF UNPAID LEAVE TYPICALLY USED BY SCHOOL EMPLOYEES

Unpaid Leaves • Federal Family and Medical Leave • Federal USERRA & W. Va. National Guard leave • Pregnancy, childbirth or adoptive or infant bonding under W. Va. Code § 18 A-2 -2 a(b) • Parental leave under W. Va. Code § 215 D-1 et seq. • Leave for public officials performing public duties under W. Va. Code § 6 -5 -12

Federal Family and Medical Leave • Employees are covered if: § They have been employed for at least 12 months (even if not consecutive) AND § They have at least 1, 250 hours* of service during that time (not counting paid and unpaid leave, including FMLA leave) AND § You employ 50 people • What are employees entitled to: § 12 weeks of unpaid leave; employee chosen paid leave; or employer chosen paid leave during any 12 month period; § 26 weeks to care for a covered service member § Spouses of the same employer may be limited to a combined 12/26 weeks § May be intermittent

Federal USERRA & W. Va. National Guard leave • The Uniformed Services Employment and Reemployment ACT (USERRA) USERRA protects civilian job rights for veterans and Reservists. • Among other things it establishes the cumulative length of time that a person may be absent from work for military duty and retain reemployment rights (five years, with some exceptions). • Members of the National Guard in the service of the state have the same reemployment rights as members of the Armed Forces reserves, including USERRA rights.

Pregnancy, childbirth or adoptive or infant bonding leave under W. Va. Code § 18 A-2 -2 a(b) • Grants a leave of absence for any teacher or service personnel who requests an extended leave of absence without pay for any period of time not exceeding one year for the purpose of pregnancy, childbirth or adoptive or infant bonding

Leave for public officials performing public duties under W. Va. Code § 6 -5 -12 • Any employee who is elected or appointed to a part-time public office is entitled to a leave of absence on the days or any portion of any day during which the employee is performing the duties of his or her public office.

A special note: Dock Days • Some if not most counties allow employees to take “dock days” in different amounts • Dock days are viewed as unpaid leave days that employees may take without any justification and, sometimes, with little notice or advance approval • Dock days are not mentioned anywhere in the state school laws or State Board policies • Counties need not allow dock days, but if they do, they may, by policy, regulate them