Introduced Version
Senate Bill 635 History
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Key: Green = existing Code. Red = new code to be enacted
Senate Bill No. 635
(By Senator Plymale)
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[Introduced March 21, 2005; referred to the Committee
on Education; and then to the Committee on Finance.]
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A BILL to amend and reenact §18A-4-10 and §18A-4-15 of the Code of
West Virginia, 1931, as amended, all relating to prohibiting
school personnel from collecting both temporary total
disability benefits and personal leave with cause benefits for
the same time period; addressing the payment of certain
workers' compensation benefits to school personnel who receive
payments of salary less than year-round; allowing a school
service person awarded workers' compensation benefits to
return to work on a trial basis; and providing that the return
to work on a trial basis may include performance of other
duties if certain conditions are satisfied.
Be it enacted by the Legislature of West Virginia:
That §18A-4-10 and §18A-4-15 of the Code of West Virginia,
1931, as amended, be amended and reenacted, all to read as follows:
ARTICLE 4. SALARIES, WAGES AND OTHER BENEFITS.
§18A-4-10. Personal leave for illness and other causes; leave
banks; substitutes.
(a) At the beginning of the employment term, any full-time
employee of a county board of education shall be entitled annually
to at least one and one-half days personal leave for each
employment month or major fraction thereof of an employment month
in the employee's employment term. Unused leave shall be
accumulative without limitation and shall be transferable within
the state. A change in job assignment during the school year shall
in no way affect the employee's rights or benefits.
(b) 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 such the employee is absent,
but not to exceed the total amount of leave to which such the
employee is entitled: Provided, That each such regular full-time
employee shall be permitted three days of such personal leave
annually, which may be taken without regard to the cause for the
absence, except that personal leave without cause may not be taken
on consecutive work days unless authorized or approved by the
employee's principal or immediate supervisor, as the case may be:
Provided, however, That notice of such the personal leave day shall be given to the employee's principal or immediate supervisor, as
the case may be, at least twenty-four hours in advance, except that
in the case of sudden and unexpected circumstances, such the notice
shall be given as soon as reasonably practicable; however, the use
of such the personal leave day may be denied if, at the time notice
is given, either fifteen percent of the employees or three
employees, whichever is greater, under the supervision of the
principal or immediate supervisor, as the case may be, have
previously notified the principal or immediate supervisor of their
intention to use that day for such personal leave: Provided
further, That such personal leave shall not be used in connection
with a concerted work stoppage or strike. Where the cause for
leave had its origin prior to the beginning of the employment term,
the employee shall be paid for time lost after the start of the
employment term. If an employee should use personal leave which
the employee has not yet accumulated on a monthly basis and
subsequently leave the employment, the employee shall be required
to reimburse the board for the salary or wages paid to him or
her for such the unaccumulated leave.
Prior to the first day of January, one thousand nine hundred
eighty-nine, the state board shall establish rules, effective on
said date, to restrict the payment of personal leave benefits and
the charging of personal leave time used to an employee receiving
a workers' compensation benefit from a claim filed against and billed to the employee's board. If an employee is awarded such
benefit, such employee shall receive personal leave compensation
only to the extent such compensation is required, when added to the
workers' compensation benefit, to equal the amount of compensation
regularly paid such employee. If personal leave compensation equal
to the employee's regular pay is paid prior to the award of the
workers' compensation benefit, such amount which, when added to the
benefit, is in excess of the employee's regular pay shall be
deducted from the employee's subsequent pay. The employee's accrued
personal leave days shall be charged only for such days as equal
the amount of personal leave compensation required to compensate
the employee at the employee's regular rate of pay.
(c) "Personal leave with cause" means any personal leave taken
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. It is the intent
of the Legislature to make the treatment of personal leave with
cause as it relates to temporary total disability benefits
consistent with the treatment of sick leave of other employees of
the state and its political subdivisions as it relates to temporary
total disability benefits. Therefore, no employee may collect both
temporary total disability benefits and the personal leave with
cause benefits for the same time period. Additionally, the sick
leave related provisions of section one, article four, chapter twenty-three apply to the personal leave with cause benefits of
school personnel. The State Board may promulgate rules in
accordance with article three-b, chapter twenty-nine-a of this code
to implement the provisions of this subsection.
(d) An employee of a county board of education who receives
payments of salary less than year around may not receive any
payment of any workers' compensation benefit provided in section
six, article four, chapter twenty-three of this code during the
periods the employee would not have received payments of salary
from the county board unless the employee establishes that his or
her compensable injury is preventing him or her from obtaining a
specifically identified job for the period he or she is not
receiving payments of salary from the county board: Provided, That
an employee awarded permanent partial or permanent total disability
benefits may receive benefit payments throughout each year if his
or her benefit payments are reduced to an amount so that the total
annual workers' compensation benefit equals the amount of workers'
compensation benefit he or she otherwise would have been paid if
the employee received a workers' compensation benefit payment only
during the months he or she would have received payments of salary
from the county board.
(e) The board may establish reasonable rules for reporting and
verification of absences for cause; and if any error in reporting
absences should occur, it shall have authority to make necessary salary adjustments in the next pay after the employee has returned
to duty or in the final pay if the absence should occur during the
last month of the employment term.
(f) A county board of education may establish a personal leave
bank or banks to which employees may contribute no more than two
days of personal leave per school year: Provided, That such the
bank or banks be established either jointly or separately for both
professional personnel and school service personnel and that a bank
be available to all school personnel. Such The personal leave bank
shall be established and operated pursuant to rules adopted by the
county board: Provided, however, That such the rules may limit the
maximum number of days used by an employee, shall require that
leave bank days be used only by an active employee with less than
five days accumulated personal leave who is absent from work due to
accident or illness of such the employee, and shall prohibit the
use of such the days with the extension of insurance coverage
pursuant to section twelve, article sixteen, chapter five of this
code. Such The rules shall require that contributions shall
reduce, to the extent of such the contribution, the number of
personal leave days to which an employee is entitled by this
section: Provided further, That such the contribution shall not
reduce personal leave days without cause to which an employee is
entitled. No employee may be compelled to contribute to such the
personal leave bank.
(g) When an allowable absence does not directly affect the
instruction of the pupils or when a substitute employee may not be
required because of the nature of the work and the duration of the
cause for the allowable absence of the regular employee, the
administration, subject to board approval, may use its discretion
as to the need for a substitute where limited absence may prevail.
(h) If funds in any fiscal year, including transfers, are
insufficient to pay the full cost of substitutes for meeting the
provisions of this section, the remainder shall be paid on or
before the thirty-first day of August from the budget of the next
fiscal year.
(i) Any board of education shall have authority to supplement
such the leave provisions in any manner it may deem consider
advisable in accordance with applicable rules of the State Board
and the provisions of this chapter and chapter eighteen of this
code.
§18A-4-15. Employment of service personnel substitutes.
(a) The county board shall employ and the county
superintendent, subject to the approval of the county board, shall
assign substitute service personnel on the basis of seniority to
perform any of the following duties:
(1) To fill the temporary absence of another service employee;
(2) To fill the position of a regular service employee who
requests a leave of absence from the county board in writing and who is granted the leave in writing by the county board, and to
fill the position of a regular service employee who is on workers'
compensation and absent, all subject to the following:
(A) Provided, That if If the absence is to extend beyond
thirty working days, the county board shall post the position of
the absent employee under the procedures set forth in section
eight-b of this article;
(B) If a substitute service employee is employed to fill the
position of the absent employee and is employed in the position for
twenty or more working days, the substitute service personnel shall
have regular employment status and be accorded all rights,
privileges and benefits pertaining to the position until the
regular employee returns to the position or ceases to be employed
by the county board;
(C) Provided, however, That if If a regular or substitute
employee fills a vacancy that is related to a leave of absence or
the absence of an employee on workers' compensation in any manner
as provided in this section, upon termination of the absence the
employee shall be returned to his or her original position;
(D) Provided further, That no No service person may be
required to request or to take a leave of absence; and
(E) And provided further, That no No service person shall be
deprived of any right or privilege of regular employment status for
refusal to request or failure to take a leave of absence;
(3) To perform the service of a service employee who is
authorized to be absent from duties without loss of pay;
(4) To temporarily fill a vacancy in a permanent position
caused by severance of employment by the resignation, transfer,
retirement, permanent disability, dismissal pursuant to section
eight, article two of this chapter, or death of the regular service
employee who had been assigned to fill the position: Provided,
That within twenty working days from the commencement of the
vacancy, the board shall fill the vacancy under the procedures set
out in section eight-b of this article and section five, article
two of this chapter and the person hired to fill the vacancy shall
have and shall be accorded all rights, privileges and benefits
pertaining to the position;
(5) To fill the vacancy created by a regular employee's
suspension: Provided, That if the suspension is for more than
thirty working days, the county board shall post the position of
the suspended employee under the procedures set forth in section
eight-b of this article. If a substitute service employee is
employed to fill the suspended employee's position, the substitute
service personnel shall have regular employment status and be
accorded all rights, privileges and benefits pertaining to the
position until the termination by the county board becomes final or
the suspended employee is returned to employment. If the suspended
employee is not returned to his or her job, the board shall fill the vacancy under the procedures set out in section eight-b of this
article and section five, article two of this chapter; and
(6) To temporarily fill a vacancy in a newly created position
prior to employment of a service personnel on a regular basis under
the procedure set forth in section eight-b of this article.
(b) Substitutes shall be assigned in the following manner: A
substitute with the greatest length of service time, that is, from
the date he or she began his or her assigned duties as a substitute
in that particular category of employment, shall be given priority
in accepting the assignment throughout the period of the regular
employee's absence or until the vacancy is filled on a regular
basis under the procedures set out in section eight-b of this
article. All substitutes shall be employed on a rotating basis
according to the length of their service time until each substitute
has had an opportunity to perform similar assignments: Provided,
That if there are regular service employees employed in the same
building or working station as the absent employee and who are
employed in the same classification category of employment, the
regular employees shall be first offered the opportunity to fill
the position of the absent employee on a rotating and seniority
basis with the substitute then filling the regular employee's
position. A regular employee assigned to fill the position of an
absent employee shall be given the opportunity to hold that
position throughout the absence. For the purpose of this section only, all regularly employed school bus operators are considered to
be employed within the same building or working station.
(c) Regular school service personnel shall be returned by the
county board of education to the same position held prior to any
approved leave of absence or period of recovery from injury or
illness. The school service personnel shall retain all rights,
privileges and benefits which had accrued at the time of the
absence or accrued under any other provision of law during the
absence and shall have all rights, privileges and benefits
generally accorded school service employees at the time of return
to work. Nothing in this subsection prohibits a school service
person awarded workers' compensation benefits while recovering from
injury or illness from returning to work on a trial basis pursuant
to section seven-b, article four, chapter twenty-three of this
code. The return to work on a trial basis may include performing
other duties if:
(1) The injury or illness prevents the school service person
from performing his or her original duties; and
(2) The school service person is released to perform his or
her other duties by the treating physician.
(d) The salary of a substitute service employee shall be based
upon his or her years of employment as defined in section eight of
this article and as provided in the state minimum pay scale set
forth in section eight-a of this article and shall be in accordance with the salary schedule of persons regularly employed in the same
position in the county in which he or she is employed.
(e) Before any substitute service employee enters upon his or
her duties, he or she shall execute with the county board a written
contract as provided in section five, article two of this chapter.
(f) To establish a uniform system of providing a fair and
equitable opportunity for substitutes to enter upon their duties
for the first time, the following method shall be used: The
initial order of assigning newly employed substitutes shall be
determined by a random selection system established by the affected
substitute employees and approved by the county board. This
initial priority order shall be in effect only until the substitute
service personnel have entered upon their duties for the first
time.
(g) Substitute service employees who have worked thirty days
for a school system shall have all rights pertaining to suspension,
dismissal and contract renewal as is granted to regular service
personnel in sections six, seven, eight and eight-a, article two of
this chapter.
NOTE: The purpose of this bill is to
prohibit school
personnel from collecting both temporary total disability benefits
and personal leave with cause benefits for the same time period; to
address the payment of certain workers' compensation benefits to
school personnel who receive payments of salary less than year
around; to allow a school service person awarded workers'
compensation benefits to return to work on a trial basis; and to
provide that the return to work on a trial basis may include performance of other duties if certain conditions are satisfied.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
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