Senate Bill No. 695
(By Senators Tomblin (Mr. President), Helmick, Foster, McCabe and
Kessler)
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[Introduced March 23, 2009; referred to the Committee on
Finance.]
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A BILL to amend and reenact §5-5-6 of the Code of West Virginia,
1931, as amended, relating to payment for unused sick leave;
limiting employees to a lifetime payment of $25,000; providing
caps on the amount the daily rate of pay is calculated by;
providing that payment may be made upon application and
verification that the employee is eligible for payment; and
provisions to be applied retroactively.
Be it enacted by the Legislature of West Virginia:
That §5-5-6 of the Code of West Virginia, 1931, as amended, be
amended and reenacted to read as follows:
ARTICLE 5. SALARY INCREASE FOR STATE EMPLOYEES.
§5-5-6. Payment for unused sick leave.
(a) The Legislature declares that it is the purpose of this
section to create a fund to reduce the unfunded liability that arises from the extended insurance coverage for eligible employees
under section thirteen, article sixteen of this chapter, part of
the West Virginia Public Employees Insurance Act.
(a) (b) Every eligible employee, as defined in section one of
this article, who is entitled upon retirement to credit his or her
accrued annual and sick leave for extended insurance coverage as
provided in section thirteen, article sixteen of this chapter, and
who has accumulated at least sixty-five days of unused sick leave
may be paid, at his or her option, for unused sick leave in an
amount of days as designated by the employee not to exceed the
number of sick leave days that would reduce an employee's sick
leave balance to less than fifty days:
Provided, That any employee
who applies for payment under this section may not be paid more
than a total of $25,000, either at one time or over the course of
multiple payments for unused sick leave.
(c) The An employee
who applies for payment under this section
shall be paid at a rate equal to one quarter of their usual rate of
daily pay during that calendar year.
(1) The "daily rate of pay" of an employee paid a monthly
salary is calculated by multiplying the monthly salary by twelve
and dividing that number by the number of workdays for that
calendar year:
Provided, That for any employee that falls under
the provisions of subsection (d), section thirteen, article sixteen
of this chapter, the highest monthly salary that the daily rate of pay shall be calculated by is $6,700. Any employee who falls under
the provisions of subsection (d), section thirteen, article sixteen
of this chapter and is paid more than $6,700 per month shall
receive payment for unused sick leave at a rate equal to one
quarter of the daily rate of pay of an employee paid a monthly
salary of $6,700: Provided, however, That for any employee that
falls under the provisions of subsection (e), section thirteen,
article sixteen of this chapter, the highest monthly salary that
the daily rate of pay shall be calculated by is $4,200. Any
employee who falls under the provisions of subsection (e), section
thirteen, article sixteen of this chapter and is paid more than
$4,200 per month shall receive payment for unused sick leave at a
rate equal to one quarter of the daily rate of pay of an employee
paid a monthly salary of $4,200: Provided further, That any
employee who falls under the provisions of subsection (g), section
thirteen, article sixteen of this chapter is not eligible for
payment under this section.
The Secretary of the Department of Administration may
promulgate rules pursuant to article three, chapter twenty-nine-a
of this code to adjust the highest monthly salary that the daily
rate of pay is calculated by as needed.
(2) As used in this section, "workday" does not include
weekends.
(3) Any payment for unused sick leave may not be a part of final average salary computation.
(b) Payment for unused sick leave may be made only once per
fiscal year on either the pay day immediately following the first
full pay period in July or the first full pay period in December.
(d) Payment for unused sick leave may be made upon application
and after the Secretary of the Department of Administration
verifies that the employee is eligible for payment under this
section. Payments shall be made out of the fund established in
subsection
(e) (g) of this section.
(c) (e) Any eligible employee opting to receive payment in
exchange for unused sick leave must contract, in a form to be
prescribed by the Department of Administration, agreeing to
reimburse the fund for the amount exchanged plus twelve percent per
annum if the employee elects to separate from employment within
sixty months of the date of the exchange pursuant to subsection
(a)
(b) of this section. The Department of Administration shall pursue
collection of the obligation, either by itself, or by contracting
with a collection agency. For purposes of this section,
"separation" does not include separation from employment by death
or retirement, but does refer to any other manner in which
employment may be terminated.
(d) (f) Payments shall be made in the order that eligible
employees apply for the payments so long as funds are available.
In the event the fund is insufficient to pay all employees who have applied for payment in a fiscal year, employees who do not receive
payment are eligible for payment in the next fiscal year, are not
required to reapply and shall receive payment in the order in which
they first applied, unless the employee chooses to withdraw the
application prior to the next fiscal year.
(e) (g) Effective July 1, 2008, there is created a special
revenue account within the State Treasury to be known as the State
Employee Sick Leave Fund. The fund shall consist of moneys
appropriated by the Legislature, moneys deposited into the fund in
accordance with administrative rules of the Department of
Administration, and any interest or other return to moneys in the
fund. The fund shall be administrated by the Secretary of the
Department of Administration.
(f) (h) The secretary shall promulgate rules pursuant to
article three, chapter twenty-nine-a of this code to implement the
provisions of this section. The rules shall include, but not be
limited to, provisions for the application process and a rule
authorizing the secretary to obtain reimbursement, where available
and appropriate, to the State Employee Sick Leave Fund from any
spending unit for a pro rata share of payments made under the
provisions of this section to any employee whose salary is paid, in
whole or in part, from a funding source other than the General
Revenue Fund.
(g) (i) Each spending unit, as defined in section one of this article, shall verify to the secretary whether an employee is
eligible for payment under this section, shall verify the funding
source or sources of the employee's salary, and shall verify the
total number of unused sick leave days for all employees at least
once per year. The secretary shall maintain sick leave records for
all spending units. All sick leave days for which an employee is
paid as provided in this section shall be deducted from the
employee's sick leave balance by the secretary and the secretary
shall verify to each spending unit the amount of days that have
been deducted from an employee's sick leave balance. An employee
shall not be permitted to reacquire any sick leave days for which
he or she received payment under the provisions of this section.
(j) The provisions of this section shall be retroactive to
December 1, 2008, to the extent that the provisions apply to those
employees who have previously applied for payment for unused sick
leave and have not been paid.
NOTE: The purpose of this bill is to limit all employees who
request payment for unused sick leave to $25,000 payment. The bill
further provides that the maximum the daily rate of pay calculation
may be based off of is an $80,000 salary for certain employees and
$50,000 for another group of employees. The bill also makes the
amendments to this section retroactive to December 1, 2008.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.