W. Va. Code R. § 217-1-12 - Attendance and Leave

In compliance with state and federal law governing holidays and leave, including 29 U.S.C.S 2601-2654, the federal Family and Medical Leave Act (FMLA), the following provisions apply to eligible classified employees.

12.1. Official Holidays.

12.1.1. Employees shall be released from work with pay in observance of the following official holidays: New Year's Day, the first day of January; Martin Luther King's Birthday, the third Monday of January; Presidents' Day, the third Monday of February; Memorial Day, the last Monday in May; West Virginia Day, the twentieth day of June; Independence Day, the fourth day of July; Labor Day, the first Monday of September; Columbus Day, the second Monday of October; Veterans' Day, the eleventh day of November; Thanksgiving Day, the fourth Thursday of November; the day after Thanksgiving Day; Christmas Day, the twenty-fifth day of December; any day on which a State-wide election (Primary, General, or Special) is held, and, such other days as the President, Governor or other duly constituted authority proclaim to be official holidays or days for which employees are released from work. Provided, that an election held on a Saturday is not an official holiday as provided in this subsection.

12.1.2. When a holiday falls on a Sunday, the following Monday shall be observed as the official holiday. When a holiday falls on a Saturday, the previous Friday shall be observed as the official holiday. When Christmas or New Year's Day occurs on Tuesday, Wednesday, Thursday, or Friday, the last half of the scheduled workday immediately preceding the holiday will be given as time off not to exceed four hours. To receive pay for the four hours of time off, an employee must work or be on approved paid leave for the preceding four hours of work time.

12.1.3. Agencies may schedule employees to work on the official holiday observance date to accommodate around-the-clock shifts or other special needs. The agency shall notify employees in advance of the modification and shall schedule alternate holiday paid time off for a date as close as possible but not prior to the official holiday observance date. In the alternative, an employee may agree to be paid for the holiday rather than observing it at a later date. The total amount of paid time off for holidays shall not exceed eight hours per holiday or four hours per one-half day of time off as provided in this subsection.

12.1.4. Part-time employees are entitled to receive time off with pay for holidays, regardless of whether the holidays fall within the employees' regular work schedules, in proportion to the amount of time worked as compared to the employer's standard workweek for a full-time employee. When a holiday falls on a day on which a part-time or full-time employee is not scheduled to work, the employee should be released from work on his or her next scheduled work shift or as soon as reasonably possible.

12.1.5. To receive pay for any holiday, an employee must, at a minimum, work or be on approved paid leave for his or her full scheduled workday immediately preceding and following the holiday. Provided, that an employee who works on the holiday is eligible to receive pay for the holiday irrespective of working or being on approved paid leave the day before and after. However, an employee who is scheduled to work on the holiday but fails to report is ineligible to receive pay for the holiday irrespective of working or being on approved paid leave on that day or the days before and after. An employee is not eligible to be paid for any holiday that occurs prior to his or her first day of work or after his or her date and time of separation as defined in this rule.

12.1.6. Agencies shall make reasonable accommodation to an employee's religious holidays as required by law.

12.1.7. An agency shall, if necessary, allow any employee required to work on any election day ample and convenient time and opportunity to cast his or her vote. Upon receipt of a written request at least three working days prior to an election, an agency shall give any employee who has less than three hours of accrued leave, time away from work during hours polling places are open, up to three hours of paid time off between the opening and closing of the polls, to vote. The agency shall schedule such time off to avoid impairment or disruption of essential services and operations.

12.2. Agency Work Schedules. -- Each agency shall establish the work schedule for the employees of his or her agency. The work schedule shall specify the number of hours of actual attendance on duty for full-time employees during a workweek, the day and time that the workweek begins and ends, and the time that each work shift begins and ends. The work schedule may include any work shifts the agency determines to be appropriate for the efficient operation of the agency, including work shifts comprising workdays of more than eight hours, or work weeks of less than five days, or both. The work schedules and changes must be submitted to the agency within 15 days after employees commence work under the schedule.

12.3. Annual Leave.

12.3.1. Amount, Accrual. -- Except as otherwise noted in this rule, each permanent, full-time, part-time, and probationary, employee is eligible to accrue annual leave with pay and benefits. The table below lists the rates of accrual according to the employee's length of service category and the number of hours of annual leave that may be carried forward from one calendar year to another. A "day" is based on the agency's established number of hours in the workday and shall not exceed eight hours. Annual leave is accrued at the end of each pay period or on the last workday for separating employees. Though the rates below are expressed in terms of a monthly rate, the leave accrual may be calculated on a bi-weekly basis. It may be prorated for employees granted a medical leave of absence or satisfying the conditions for approval of a medical leave of absence in accordance with subdivision 14.8.c of this rule. Prorated leave is computed in proportion to normal hours worked, or hours of paid sick, or annual leave during the pay period based on the proper length of service category. Annual leave cannot be accrued for hours not paid nor for hours worked beyond the normal workweek which shall not exceed 40 hours. Provided, however, employees on unpaid leave who are receiving workers' compensation temporary total disability benefits continue to accrue annual leave while receiving such benefits.

Length of Service	Accrual Rate: Hours	Carry-forward Rate: Hours
Category	Equal To	Equal To
Less than 5 years of qualifying service	4.616660 hours/pay period	240 hours
5 years but less than 10 years of qualifying service	5.550000 hours/pay period	240 hours
10 years but less than 15 years of qualifying service	6.470000 hours/pay period	280 hours
15 years or more of qualifying service	7.40000 hours/pay period	320 hours

12.3.2. Service to Qualify. -- Qualifying service for length of service category is based on State employment or employment in the classified service, for any state agency, not of a limited-term or temporary nature and provided that any exempt service must be leave-accruing service to qualify. No service credit accrues for periods during which an employee is not paid a wage or salary unless otherwise provided by State or federal statute. Provided, however, employees on unpaid leave who are receiving workers' compensation temporary total disability benefits continue to accrue service credit while receiving such benefits.

12.3.3. Requesting, Granting. -- Accrued annual leave shall be granted at those times that will not materially affect the agency's efficient operation or when requested under the provisions of the Parental Leave Act or FMLA. The employee shall request annual leave in advance of taking the leave except as noted elsewhere in this subdivision or, for unplanned annual leave, submit the leave request immediately upon return to work or, in cases of extended periods of leave, as directed by the agency. Annual leave may not be granted in advance of the employee's accrual of the leave.

12.3.4. Coverage.

12.3.4.a. Full-time and part-time permanent, probationary, employees accrue annual leave.

12.3.4.b. Temporary and seasonal employees do not accrue annual leave.

12.3.4.c. Annual leave accrued by part-time permanent employees is computed in proportion to normal hours worked or hours of paid sick or annual leave during the pay period based on the proper length of service category.

12.3.5. Minimum Charge. -- The minimum charge against annual leave is one-quarter hour. Additional leave will be in multiples of a quarter hour. Provided, that annual leave may be calculated in lesser denominations when being exhausted prior to leave of absence without pay.

12.3.6. Separation from Employment. The agency shall pay an employee who separates from employment for any reason for all accrued and unused annual leave. An employee does not accrue annual leave after his or her date and time of separation. The payment shall be made according to one of the following methods:

12.3.6.a. An employee may elect to be paid in installments at his or her usual rate and frequency of pay as if employment were continuing until the pay period during which the accrued annual leave is exhausted. If the last day for which leave payment is due falls before the day on which the pay period ends, terminal annual leave payment for those days within that pay period is calculated using the daily rate for the pay period in which the last day on payroll occurs. Employees in positions allocated to job classes assigned to an hourly pay schedule or per diem pay schedule approved by the Division shall be paid according to those standard procedures;

12.3.6.b. Lump Sum Payment --. Any eligible employee as defined in W. Va. Code § 5-5-1 et seq. who is separated from employment by resignation, layoff, dismissal, retirement, death, or termination, may be paid in a lump sum, at his or her option, for accrued and unused annual leave. Terminal annual leave payment for an employee who selects a lump sum payment will be calculated as if employment were continuing until the pay period during which the accrued annual leave is exhausted in accordance with paragraph one of this subdivision. Employees in positions allocated to job classes assigned to an hourly pay schedule or per diem pay schedule approved by the Division shall be paid according to those standard procedures. The lump sum payment shall be made by the time of what would have been the employee's next regular pay day had his or her employment continued. No deductions may be made for contributions toward retirement from the lump sum payment; or

12.3.6.c. Retirement. -- An eligible employee who retires may elect not to receive payment for any or all terminal annual leave and may apply the balance toward extended insurance coverage under guidelines established by the Public Employees Insurance Agency or to acquire additional credited service in the appropriate state retirement system under guidelines established by the Consolidated Public Retirement Division.

12.3.7. Transfer of Annual Leave.

12.3.7.a. When a classified employee transfers or otherwise changes employment from one agency to another, all service credit and accrued and unused annual leave shall be transferred. The previous employer shall provide written documentation of the employee's annual leave balance computed in days and fractions of days to the other agency within 30 days after the employee commences work. The previous employer shall also provide the days of State and federal Military, FMLA, Parental Leave Act, and Red Cross Disaster Service leave eligibility exhausted within the year, if applicable.

12.3.7.b. Annual leave accrued while in exempt or classified-exempt permanent employment shall be transferred to classified employment.

12.3.8. When Sick Leave is Exhausted. -- Annual leave shall be used in circumstances when sick leave or the sick leave allowance for an employee's immediate family is exhausted. The provisions of subdivision 12.4.g of this rule regarding the necessity for a physician's or practitioner's statement when sick leave is used apply when annual leave is used under these circumstances. Paid leave taken for a qualifying serious health condition shall be designated as FMLA leave.

12.4. Sick Leave.

12.4.1. Accrual. -- Except as otherwise provided in this rule, each permanent and probationary, employee shall receive accrued sick leave with pay and benefits. Sick leave is computed on the basis of hours equal to 5.550000 per pay period for full-time employees; provided that a "day" is based on the agency's established number of hours in the workday and shall not exceed eight hours. Sick leave is accrued at the end of each pay period or on the last workday for separating employees. It may be prorated for employees granted a medical leave of absence or satisfying the conditions for approval of a medical leave of absence in accordance with subdivision 12.8.c. of this rule. Prorated leave is computed in proportion to normal hours worked or hours of paid sick or annual leave during the pay period. Sick leave cannot be accrued for hours not paid nor for hours worked beyond the normal workweek which shall not exceed 40 hours. There is unlimited accumulation of sick leave.

12.4.2. Coverage.

12.4.2.a. Full-time and part-time permanent, and probationary employees accrue sick leave.

12.4.2.b. Temporary and seasonal employees shall not accrue sick leave.

12.4.3.c. Sick leave accrued by part-time employees is computed in proportion to normal hours worked or hours of paid sick or annual leave during the pay period.

12.4.3. Minimum Charge. The minimum charge against sick leave is one-quarter hour. Additional leave is charged in multiples of one quarter hour. Provided, that sick leave may be calculated in lesser denominations when being exhausted prior to leave of absence without pay.

12.4.4. Maximum Charge. -- The maximum charge against sick leave is one year per substantially continuous absence; however, the agency may, at his or her discretion, grant additional accrued sick leave. If the agency does not approve additional sick leave, an eligible employee may request a medical leave of absence without pay upon exhaustion of his or her annual leave.

12.4.5. Separation from Employment. -- Sick leave shall not accrue after the date and time of separation as defined in this rule. As of the date and time of separation, all accrued or scheduled sick leave will be cancelled. Payment will not be made for sick leave subsequent to the date and time of separation, except as provided under paragraph 12.4e.1 of this section. Payment for sick leave paid subsequent to the date and time of separation shall be recovered, by civil action if necessary.

12.4.5.a. Retirement. -- An employee eligible to retire at the time of separation from employment may use unused sick leave to purchase extended insurance coverage upon retirement under guidelines established by the Public Employees Insurance Agency or upon retirement to acquire additional credited service in the state retirement system under guidelines established by the Consolidated Public Retirement Division.

12.4.5.b. All Other Separations. -- All accumulated sick leave shall be cancelled as of the date and time of separation. If an employee returns to eligible employment, as provided in subdivision b. of this subsection, within one year of the date and time of separation, including the first working day the reinstatement could be accomplished, all cancelled sick leave shall be restored. However, if the employee returns to eligible employment after more than one year from the date and time of separation from employment, no more than 30 days of cancelled sick leave shall be restored. If an employee who has been laid off is re-employed in eligible employment, all cancelled sick leave shall be restored.

12.4.6. Requesting, Granting.-- Sick leave may not be granted in advance of the employee's accrual of the leave or when the employee's disability, as verified by a physician or practitioner on a prescribed physician's or practitioner's statement form, is of such a nature as to render the employee permanently unable to perform his or her duties with or without accommodation; provided the employee may continue to utilize available sick leave during the accommodation consideration process not to exceed 12 weeks. Paid leave taken for a qualifying serious health condition shall be designated as FMLA leave.

12.4.6.a. Employees shall request sick leave in advance of taking the leave when requesting leave for routine dental and medical appointments. For unplanned sick leave, the employee must submit the leave request immediately upon return to work or, in cases of extended periods of leave, as directed by the agency. Agencies shall grant accrued sick leave requested by employees for the following reasons:

12.4.6.b. Illness. -- Sick leave shall be granted in the event of an employee's illness or injury which incapacitates him or her from performing his or her duties;

12.4.6.c. Death in the Immediate Family of the Employee. -- Sick leave shall be granted up to three scheduled workdays to an employee for the death of any member of his or her immediate family as defined in this rule. Such time is not deducted from the 80 hour family sick leave usage allowance. If sick leave is requested to commence immediately preceding or following the leave granted for death in the immediate family, a physician's or practitioner's statement is not required unless the employee is on leave restriction, or the additional sick leave exceeds three consecutive scheduled workdays. The employee must present verification of a qualifying death. In the absence of verification of a qualifying death, the employee will be required to present a physician's or practitioner's statement for the entire period of absence in accordance with subsections 12.4.7 b and c of this section;

12.4.6.d. Exposure to Contagious Disease. -- Sick leave shall be granted in the case of exposure to a contagious disease when a physician or practitioner determines and states in writing that the employee's presence on duty may jeopardize the health of others;

12.4.6.e. Pregnancy. -- Incapacity due to pregnancy will be charged to sick leave under the same conditions applying to any illness;

12.4.6.f. Routine Dental and Medical Appointments - Employee. -- Routine dental and medical appointments for treatment or examination of the employee shall be charged to sick leave. Reasonable travel time in addition to the time for the routine appointments may also be charged to sick leave;

12.4.6.g. Illness or Routine Dental and Medical Appointments - Immediate Family. -- Employees may use up to 80 hours of accrued sick leave per calendar year to provide care to an immediate family member, as defined in this rule, who is incapacitated due to illness or injury or to accompany an immediate family member to routine healthcare appointments. Such time will be prorated for part-time employees. Reasonable travel time in addition to the time for the routine appointments may also be charged to sick leave; or,

12.4.6.h. Work Related Illness or Injury. -- An employee may elect to use sick leave due to a personal injury received in the course of and resulting from covered employment with an agency in accordance with W. Va. Code § 23-4-1 et seq. Upon a work-related injury or illness, the employee must submit an Election of Option form to the agency payroll office. An employee who elects not to use sick leave under this paragraph will be placed on a medical leave of absence without pay as provided under subsection 12.8 of this section. Provided, that such paid or unpaid leave due to a work-related injury or illness shall be, if qualifying, counted as, and run concurrently with FMLA leave.

12.4.7. Physician's or practitioner's Statement.

12.4.7.a. The Division shall prescribe a physician's or practitioner's statement form to be supplied by all agencies to its employees. All agencies shall use this form or an alternate form or method, approved by the Division, to obtain the necessary information. Agencies shall comply with FMLA provisions pertaining to certification and recertification, when applicable.

12.4.7.b. Any employee requesting sick leave, or annual leave upon exhaustion of sick leave, for themselves, a family member, or a combination thereof, for more than three consecutive scheduled working days or scheduled shifts must, immediately upon his or her return to work, provide a prescribed physician's or practitioner's statement from the attending physician or practitioner for the entire absence. Consecutive scheduled workdays are determined without regard to scheduled days off that occur during the period of sick leave or annual leave used upon exhaustion of sick leave. Thus, annual leave, holidays, modified holiday observance, compensatory time, regularly scheduled days off, or any other time for which the employee was not scheduled to work during the period of absence shall not constitute a break when determining the three consecutive scheduled workdays. The physician's or practitioner's statement shall specify the period of incapacity and state that the employee was unable to perform his or her job or that the employee's absence was due to reasons provided in paragraph 12.4.f.6. of this section for a member of the employee's immediate family.

12.4.7.c. In the absence of a prescribed physician's or practitioner's statement form, the entire absence shall be charged to unauthorized leave as provided in subsection 12.6 of this section, and the employee's pay shall be docked for the entire period of absence.

12.4.7.d. The agency shall notify the employee in writing that his or her pay is being docked. If the physician's or practitioner's statement from the attending physician or practitioner specifies a period of incapacity that is less than the entire absence, only the period of incapacity shall be charged to sick leave and the remaining absence shall be charged to annual leave, if annual leave is available to the employee and is not otherwise restricted.

12.4.7.e. For extended periods of sick leave, a prescribed physician's or practitioner's statement form confirming the necessity for continued leave must be submitted within seven days of employee's knowledge of the commencement of the sick leave and must indicate a date the physician or practitioner will release the employee to return to work or a date the physician or practitioner will re-evaluate the employee's medical condition. For employees being re-evaluated, an additional physician's or practitioner's statement must be submitted upon re-evaluation. Failure to produce the required statement is grounds to terminate further sick leave benefits and the agency will immediately place the employee on unauthorized leave and notify the employee in writing of such action as provided in subsection 12.6 of this rule. The necessity for absence because of exposure to contagious disease must be verified on a prescribed physician's or practitioner's statement form regardless of the length of absence.

12.4.8. Return At Less Than Full Duty.

12.4.8.a. The agency may permit an employee to work or return to work from sick leave, military duty in which the employee was injured or became ill, or medical leave of absence at less than full duty for a period of no more than 30 days. The terms of the return must be in writing. An employee may request to continue to work at less than full duty beyond the 30 day period. The request must be submitted to the agency at least five days before the end of the 30 day period. The agency will consider the request in the same manner as the original request.

12.4.8.b. The agency may require an employee to return at less than full duty or to transitional duties where the absence is due to a personal injury received in the course of and resulting from covered employment with the State or its political subdivisions in accordance with W. Va. Code § 23-4-1 et seq. and a physician or practitioner has released the employee to perform such work.

12.4.8.c. The agency may deny a request to return or continue to work at less than full duty or with restrictions under conditions including, but not limited to, the following:

12.4.8.c.1. the employee cannot perform the essential duties of his or her job with or without accommodation;

12.4.8.c.2. the nature of the employee's job is such that it may aggravate the employee's medical condition;

12.4.8.c.3. a significant risk of substantial harm to the health or safety of the employee or others cannot be eliminated or reduced by reasonable accommodation; or,

12.4.8.c.4. the approval of the request would seriously impair the conduct of the agency's business.

12.4.8.d. Prior to making a decision on an employee's request to return or continue to work at less than full duty or with restrictions, the agency may require additional information from the employee's physician or practitioner or other physician or practitioner regarding the employee's ability to perform the essential duties of his or her job, with or without accommodation.

12.4.9. Transfer of Sick Leave.-- When a classified employee transfers or otherwise changes employment from any state agency to another, all accrued and unused sick leave shall be transferred. The previous employer shall provide written documentation of the sick leave balance computed in days and fractions of days to the other agency within 30 days after the employee commences work. The previous employer shall also provide the days of State and federal Military, FMLA, Parental Leave Act, and Red Cross Disaster Service leave eligibility exhausted within the year, if applicable.

12.4.10. Illness While on Annual Leave. -- An employee who becomes ill while on previously approved annual leave may request that all or part of the time be charged to sick leave. This provision shall also apply when an employee requests to change annual leave to family sick leave due to the illness of an immediate family member. The employee shall request that action immediately, provided that any annual leave used prior to the request being made shall not be charged to sick leave. The employee must provide a physician's or practitioner's statement immediately upon return to work.

12.5. Suspected Misuse of Leave. -- When an employee appears to have a pattern or incident of leave use that is inconsistent with the reasons provided in this section, the agency may request appropriate substantiation of the employee's claim for leave, for example, verification of an illness of less than three consecutive scheduled workdays or scheduled shifts. Misuse of leave may include, but is not limited to, frequent use of sick leave rendering the employee's services undependable, requesting sick leave for days when annual leave was previously denied, and requesting unplanned leave in connection with scheduled days off. The agency shall give the employee prior written notice of the requirement for appropriate substantiation.

12.6. Unauthorized Leave. -- When an employee is absent from work without authorization for sick or annual leave, the agency will dock the employee's pay for an equal amount of time paid during which no work was performed. The agency shall notify the employee in writing that his or her pay is being docked and that the unauthorized leave is misconduct for which discipline is being imposed. The agency shall use unauthorized leave only in cases when the employee fails to obtain the appropriate approval, according to agency policy, for the absence.

12.7. Overtime Work and Holiday Work. -- An agency may require an employee to work in excess of the prescribed working hours or on holidays when the work is considered by the employer to be necessary to the public interest. Compensation shall be made in accordance with the federal Fair Labor Standards Act, relevant federal regulations, W. Va. Code § 21-5C-1 et seq. and agency policy.

12.8. Leave of Absence Without Pay.

12.8.1. Personal Leave. -- An agency, based on the agency's personnel needs, may grant a permanent, probationary, employee a leave of absence without pay for a specific period of time which normally should not exceed one year. The employee shall apply for the leave of absence in writing to the agency head no later than 30 days prior to commencement of the leave of absence unless the absence is medical in nature. Written approval of the agency head is required in all cases.

12.8.2. Family Leave. -- The Division may establish uniform procedures, which must be followed by all agencies, for granting leave to eligible employees under the Parental Leave Act and FMLA.

12.8.3. Medical Leave; Notice to Employee.

12.8.3.a. An injured or ill permanent classified employee upon written application to the agency head shall be granted a medical leave of absence without pay not to exceed six months within a 12 month period provided:

12.8.3.a.1. The employee:

12.8.3.a.1.A. Has worked or been on approved leave with or without pay for military service or leave without pay while receiving workers' compensation temporary total disability benefits for at least 1,040 hours, or 50 percent of the normal work schedule for part-time permanent classified employees, during the 12 month period immediately preceding the beginning of the leave;

12.8.3.a.1.B. Makes application no later than five days following the exhaustion of all sick and annual leave; and,

12.8.3.a.1.C. Has exhausted all available sick and annual leave or has elected not to use sick and annual leave for a personal injury or illness received in the course of and resulting from covered employment with the state in accordance with W. Va. Code § 23-4-1 et seq.

12.8.3.a.2. The employee's absence is due to an illness or injury which is verified by a physician or practitioner on the prescribed physician's or practitioner's statement form stating that the employee is unable to perform his or her duties and giving a date for the employee's return to work or the date the employee's medical condition will be reevaluated;

12.8.3.a.3. A prescribed physician's or practitioner's statement form is submitted each time the employee's condition is re-evaluated to confirm the necessity for continued leave; and,

12.8.3.a.4. The disability, as verified by a physician or practitioner, is not of such nature as to render the employee permanently unable to perform his or her duties. Though not eligible for medical leave of absence under this subsection, the employee may be eligible for leave under FMLA.

12.8.3.b. The agency shall, at least 15 days prior to, if possible, but no later than five days prior to the expiration of the employee's sick leave, mail to the employee a written notice of the employee's right to a medical leave of absence without pay and informing him or her that the leave will not be granted if he or she fails to apply within the time limits specified in this section. Notice is not required for subsequent absence for the same reason during the applicable 12 month period.

12.8.3.c. The 12 month period shall be calculated based upon a rolling 12 month period measured backward from the date of leave use. The amount of leave available during the 12 month period shall be based upon the equivalent number of hours the employee is normally scheduled to work during a six-month period. Such leave may be taken intermittently only when running concurrently with FMLA leave.

12.8.3.d. Exceptions. -- Employees, including probationary employees, shall be granted and will remain on medical leave of absence without pay while receiving workers' compensation temporary total disability benefits as a result of a personal injury or illness received in the course of and resulting from covered employment with the state in accordance with W. Va. Code § 23-4-1 et seq.

12.8.4. End of Leave.

12.8.4.a. At the expiration of a leave of absence without pay, the employee shall be returned to duty to either his or her former position, or one of comparable pay and duties, without loss of rights, unless the position is no longer available due to a reduction-in force.

12.8.4.b. If the leave of absence without pay was granted due to personal illness, the employee must furnish from the attending physician or practitioner a prescribed physician's or practitioner's statement form indicating the ability of the employee to return to work. The agency may permit an employee to return to work at or before the expiration of the leave of absence at less than full duty, but the terms of return are subject to the same conditions specified in this section.

12.8.4.c. Failure of the employee to report to work promptly at the expiration of a leave of absence without pay, except for satisfactory reasons submitted in advance to and approved by the agency, is cause for dismissal. An employee dismissed for failure to return from leave of absence without pay is not eligible for severance pay.

12.8.5. Reporting Procedures. -- The agency must report a leave of absence without pay to the Division. The appropriate forms must include the provision of this rule under which the leave is being granted, the employee's last date and time on the payroll, and the specific anticipated date for return to duty.

12.9. Military Leave.

12.9.1. State Active Duty and Reserve Military Service. -- All permanent employees who are members of the National Guard or of any of the reserve components of the armed forces of the federal government are entitled to a leave of absence from employment without loss of pay, status, or efficiency rating, on all days during which they are engaged in drills or parades, or for examination to determine fitness for duty, inactive duty training, funeral, service schools, active duty for training or active service for the State during business hours all to include reasonable travel time to and from the duty location, for a maximum period of 30 scheduled work days in any one calendar year, not to exceed 240 hours, when ordered or authorized by proper authority.

12.9.2. The term "without loss of pay" means that the employee continues to receive his or her normal salary or compensation, notwithstanding the fact that the employee may have received other compensation during the same period. An employee need not exhaust any or all annual leave or sick leave. Furthermore, the leave of absence is considered as time worked for the agency in computing tenure, eligibility for salary increase and experience with the agency.

12.9.3. The terms of this subdivision do not apply under the provisions of any military selective service act. An employee shall provide to the appointing authority advance written or verbal notification of an obligation or intention to perform military duty and such written orders or other documentation, if available, in support of the request for military leave.

12.9.4. None of the unused days of military leave for which an officer or employee is eligible under this subdivision may be carried over and used in the next calendar year.

12.9.5. An employee on extended federal active duty or full-time National Guard duty is eligible for leave provided in this subdivision only in the year he or she is called to active duty, and in subsequent years only after he or she has been discharged from military duty and returned to employment.

12.9.6. Federal Active Duty. -- All officers and permanent employees who are ordered or called to active duty by properly designated federal authority are eligible for an additional leave of absence from employment without loss of pay, status, or efficiency rating for a maximum period of 30 scheduled work days, not to exceed 240 hours, for each single call to active duty, active duty for training, initial active duty for training, or full-time National Guard duty, all to include reasonable travel time to and from the duty location.

12.9.7. All eligible officers and employees of the State called to federal active duty or full-time National Guard duty who have not used all or some portion of the 30 scheduled workdays of military leave granted by subdivision a. of this subsection are eligible to use those unused days in the same calendar year prior to using the 30 workdays for which they are eligible under this subdivision, up to a maximum of 60 scheduled workdays for a single call to active duty. None of the unused days for which an officer or employee is eligible under subdivision a. of this subsection may be carried over and used in the next calendar year.

12.9.8. An employee on extended federal active duty or full-time National Guard duty is eligible for leave provided in subdivision a. of this subsection only in the year he or she is called to active duty, and, in subsequent years, only for a subsequent call to duty and only after he or she has been discharged from military duty and returned to employment.

12.9.9. The term "without loss of pay" means that the employee shall continue to receive his or her normal salary or compensation, notwithstanding the fact that the employee may have received other compensation from federal or state sources during the same period.

12.9.10. Other than as provided in subdivision b. of this subsection, any employee hired for permanent employment entering the United States armed services in time of war, national emergency or under compulsory provisions of law of the United States in time of peace shall be granted a leave of absence from his or her service with the agency. Upon completion of and discharge from the armed services and within the applicable time period prescribed by federal statute, rule, or regulation regarding return to employment, the employee has the right to resume his or her service with the agency without any prejudice to his or her status, merit rating or standing by reason of the absence, in accordance with subdivision 11.6.b. of this rule. An employee shall be credited with all annual leave and sick leave not used at the commencement of his or her military leave in accordance with subdivision 11.6.c. of this rule.

12.9.11. This subdivision does not mean and may not be construed:

12.9.11.a. As providing that the salary paid by the agency shall continue to be paid to the employee while he or she is not performing the duties of his or her position because of the services with the armed forces of the United States; or,

12.9.11.b. As having precedence over the provisions of any applicable federal statute, rule, or regulation regarding military leave or re-employment rights with which this subdivision is inconsistent or in conflict including, but not limited to, the Uniformed Services Employment and Reemployment Rights Act.

12.10. Court, Jury, and Hearing Leave.

12.10.1. Upon application in writing, an employee hired for permanent employment shall be released from work without charge to leave or loss of pay when, in obedience to a subpoena or direction by proper authority, he or she serves upon a jury or appears as a witness before any court or judge, any legislative committee, or any officer, Division, or body authorized by law to conduct any hearing or inquiry. This subdivision does not apply in cases where the employee or a member of his or her immediate family is a plaintiff, defendant or other interested party or has a personal, financial, or vested interest in the outcome of the proceeding or when the hours spent in compliance to a subpoena to serve on a jury or appear as a witness are outside the employee's scheduled workday.

12.10.2. Employees subpoenaed by proper authority who are not eligible for court, jury or hearing leave shall be granted sufficient annual leave or leave without pay to fulfill the order. This subdivision shall not be construed to:

12.10.2.a. Deprive, prohibit, or infringe upon the rights of any employee who is a party to, or a witness in, a grievance proceeding or a court of law proceeding resulting from the course of his or her employment; or,

12.10.2.b. Deprive, prohibit, or infringe upon the rights of any employee in his or her pursuit of personal legal matters or civic responsibilities while on annual leave or a personal leave of absence. The employee shall furnish such written confirmation of the absence as is required by the agency head.

12.10.3. When an employee is to report to or is released from service prior to the beginning or end of the workday, and there is more than one hour remaining in the employee's scheduled work shift after allowing for reasonable return travel time, the employee shall report or return to work or request approval for annual leave.

12.11. Other Leave.

12.11.1. Disaster Service Leave. -- Any agency employee who is a certified disaster service volunteer of the American Red Cross may be granted leave with pay, subject to the approval of the employee's immediate supervisor, in accordance with the provisions of W. Va. Code § 15-5-15a.

12.11.2. Supplemental Attendance and Leave Policies. -- Each agency shall prepare supplemental policies as may be required. The policies shall not enhance nor diminish the benefits afforded by this subsection. Copies of all policies shall be filed with the agency head who may approve, amend, or disapprove the supplemental policies.

12.11.3. Distribution of Rule. -- Each agency shall make available to each of its employees a copy of this rule together with the agency's own supplemental attendance and leave policy.

12.11.4. Leave Records. -- Each agency shall maintain a current leave record of its employees' accrued and used leave. The agency shall provide each employee access to his or her leave records subject to established procedures and on a regular basis of no less than once each pay period. To the extent practical, each agency shall use electronic or other communications media to provide employees with access to their leave records, provided that the appointing authority makes regular and convenient access to the media used available to each employee in the agency, or otherwise provides access to each employee in the agency. Employees shall report inaccuracies in their leave records to the agency head or his or her designee.

Notes

W. Va. Code R. § 217-1-12