EXECUTIVE ORDER MJF 96-79

Unclassified State Employee Leave

WHEREAS: no permanent rules or policies on annual, compensatory, sick, special, military, and other leave exist for certain officers and employees who are in the unclassified service of the state; and

WHEREAS: Executive Order EWE 94-32, as amended by Executive Order EWE 95-27, which provided rules and policies on annual, compensatory, sick, special, military, and other leave for certain unclassified state employees, expired on August 12, 1996;

NOW THEREFORE I, M.J. "MIKE" FOSTER, JR., Governor of the State of Louisiana, by virtue of the Constitution and laws of the State of Louisiana, do hereby order and direct as follows:

SECTION 1: Applicability

A. The rules and policies established by this order are applicable to all officers and employees in the unclassified service of the Executive Branch of the State of Louisiana, except elected officials and the officers and employees of a system that is authorized by the Constitution or legislative act to manage and supervise its own system.

B. Nothing in this order shall be applied in a manner which violates, or is contrary to, the Fair Labor Standards Act (hereafter "FLSA"), the Family and Medical Leave Act, or any other applicable federal or state law, rule, or regulation.

SECTION 2: Definitions. Unless the context of this order clearly indicates otherwise, the words and terms used in this order shall be defined as follows:

A. Annual Leave leave with pay granted to an officer or employee for the purpose of rehabilitation, restoration or maintenance of work efficiency, or the transaction of personal affairs.

B. Appointing Authority the agency, department, board, or commission, or the officers and employees thereof authorized by statute or lawfully delegated authority to make appointments to positions in state service.

C. Compensatory Leave time credited for hours worked outside the regularly assigned work schedule.

D. Continuing Position an office or position of employment with the state which reasonably can be expected to continue for more than one calendar year and/or 12 consecutive months.

E. Educational Leave leave that may be granted by an appointing authority to an officer or employee only for limited educational purposes in accordance with the uniform rules developed by the commissioner of administration. Educational Leave with Pay is a subclass of educational leave and is for the purpose of attending an accredited educational institution to receive formalized training which will materially assist the officer or employee in performing the type of work performed by the officer or employee's department.

F. Intermittent Employee a person employed in state service who is not hired to work on a regularly scheduled basis.

G. Leave of Absence Without Pay a period of leave or time off from work granted by the appointing authority, or the appointing authority's designee, for which the officer or employee receives no pay.

H. Military Duty refers to the performance of continuous and uninterrupted military duty on a voluntary or involuntary basis and includes active duty, active duty for training, initial active duty for training, full-time National Guard duty, annual training, and inactive duty for training (weekend drills).

I. Overtime Hour an hour worked by an unclassified officer or employee at the direction of the appointing authority, or the appointing authority's designee:

1. on a day which is observed as a holiday in the department and area of employment and falls on a day within the workweek, or is observed as a designated holiday in lieu of a regular holiday observed in the department;

2. in excess of the regular duty hours in a regularly scheduled workday;

3. in excess of the regular duty hours in a regularly scheduled workweek;

4. in excess of 40 hours worked during any regularly recurring and continuous seven-day calendar work period where excessive hours are systematically scheduled;

5. in excess of 80 hours worked during any regularly recurring and continuous 14-day calendar work period where excessive hours are systematically scheduled;

6. in excess of the hours worked in a regularly established, continuous, and regularly recurring work period where hours average 40 hours per week, regardless of the manner in which scheduled; or

7. on a day in which a department or a division thereof is closed pursuant to R.S. 1:55(B)(5) by direction of the appointing authority due to an emergency.

J. Regular Tour of Duty an established schedule of work hours and days recurring regularly on a weekly, biweekly, or monthly basis for full-time or part-time unclassified officers or employees.

K. Seasonal Employee a person employed on a noncontinuous basis for a recognized peak work load period.

L. Sick Leave leave with pay granted to an officer or employee who is unable to perform their usual duties and responsibilities due to illness, injury, or other disability, or when the officer or employee requires medical, dental, or optical consultation or treatment.

M. State Service for leave earning purposes shall include service in a state supported school, agency, or university; public parish school system; public student employment; service as a member of a public board or commission; or service with the legislature or the state court system. All such service must have been performed for a Louisiana public entity.

N. Temporary Employee a person continuously employed for a period which does not exceed three consecutive calendar months.

O. Unclassified Service refers to those positions of state service as defined in Article X, 2 of the Louisiana Constitution of 1974, which are not positions in the classified service.

SECTION 3: Full-time Employees. For each full-time unclassified officer or employee, each appointing authority shall establish administrative work weeks of not less than 40 hours per week.

SECTION 4: Granting Leave

A. At the discretion of their appointing authority, or the appointing authority's designee, officers and employees may be granted time off for vacations, illnesses, and emergencies.

B. An appointing authority, or the appointing authority's designee, has discretion to grant for disability purposes, annual leave, leave without pay, or sick leave.

SECTION 5: Earning of Annual and Sick Leave

A. Annual and sick leave shall not be earned by the following persons:

1. members of boards, commissions, or authorities;

2. student employees, as defined under Civil Service Rules;

3. temporary, intermittent, or seasonal employees; and

4. effective as of the signing and issuance of this order, all part-time employees of the Executive Department, Office of the Governor.

B. The earning of annual and sick leave, shall be based on the equivalent of years of full time state service and shall be credited at the end of each calendar month, or at the end of each regular pay period, in accordance with the following general schedule:

1. less than three years of service, at the rate of .0461 hour of annual leave and .0461 hour of sick leave for each hour of regular duty;

2. three or more years but less than five years of service, at the rate of .0576 hour of annual leave and .0576 hour of sick leave for each hour of regular duty;

3. five or more years but less than 10 years of service, at the rate of .0692 hour of annual leave and .0692 hour of sick leave for each hour of regular duty;

4. ten or more years but less than 15 years of service, at the rate of .0807 hour of annual leave and .0807 hour of sick leave for each hour of regular duty; and

5. fifteen or more years of service, at the rate of .0923 hour of annual leave and .0923 hour of sick leave for each hour of regular duty.

For purposes of this Section, contract service does not constitute either full-time or part-time state service and cannot be used to determine, and has no effect upon, the rate at which annual leave and sick leave is earned by, accrued by, or credited to a full-time or a part-time officer or employee in unclassified state service.

C. No unclassified officer or employee shall be credited with annual or sick leave:

1. for any overtime hour(s);

2. for any hour(s) of leave without pay;

3. for any hour(s) of on-call status outside the officer or employee's regular duty hours;

4. for any hour(s) of travel or other activity outside the officer or employee's regular duty hours; or

5. for any hour(s) of a holiday or other nonwork day which occurs while on leave without pay.

SECTION 6: Carrying Annual and Sick Leave Forward. Accrued unused annual and sick leave earned by an unclassified officer or employee shall be carried forward to succeeding calendar years without limitation.

SECTION 7: Use of Annual Leave

A. An unclassified officer or employee must apply for use of annual leave, and it may only be used upon the approval of the appointing authority, or the appointing authority's designee.

B. Annual leave shall not be charged for nonwork days.

C. The minimum charge to annual leave records shall be in increments of not less than one-tenth of an hour, or six minutes.

D. An appointing authority, or the appointing authority's designee, may require an unclassified officer or employee to use their accrued annual leave whenever such an action is determined by the appointing authority, or the appointing authority's designee, to be in the best interest of the department. When such an instance occurs, no unclassified officer or employee shall be required to reduce their accrued annual leave to less than 240 hours except:

1. when granted leave without pay, but subject to the military leave provisions of Section 17; or

2. when the absence from work is due to a condition covered by the Family and Medical Leave Act.

SECTION 8: Use of Sick Leave

A. Sick leave with pay may be used by an unclassified officer or employee who has accrued sick leave, when the following occurs:

1. illness or injury prevents the officer or employee from reporting to duty; or

2. medical, dental, or optical consultation or treatment is attended.

B. A medical certificate is not required for an unclassified officer or employee to use accrued sick leave, but the appointing authority, or the appointing authority's designee, has discretion to require such a certificate as justification for an absence.

C. Sick leave shall not be charged for nonwork days.

D. The minimum charge to sick leave records shall be in increments of not less than one-tenth of an hour, or six minutes.

E. Sick leave shall only be granted after it has been accrued by an unclassified officer or employee. Sick leave shall not be advanced.

F. An appointing authority, or the appointing authority's designee, has discretion to place an unclassified officer or employee on sick leave after an officer or employee asserts the need to be absent from work due to an injury or illness.

SECTION 9: Transfer of Annual and Sick Leave

A. A classified officer or employee, or an unclassified officer or employee subject to this order, shall have all accrued annual and sick leave credited to them when the officer or employee transfers without a break in service into a position covered by this order.

B. An officer or employee shall have all accumulated annual and sick leave, to the extent that it was earned, credited to them when the officer or employee transfers without a break in service from a department not covered by this order into a department covered by this order.

C. When an unclassified officer or employee transfers without a break in service to a position covered by other leave rules of the state, the officer or employee's accrued annual and sick leave shall be transferred to the new employing state department or agency. The employing department or agency shall either hold the annual and sick leave in abeyance or integrate the leave into its own system. The officer or employee's accumulated leave shall not be reduced during such integration.

SECTION 10: Disbursement of Accrued Annual Leave Upon Separation

A. Upon the resignation, death, removal, or other final termination from state service of an unclassified officer or employee, the officer or employee's accrued annual leave shall be paid in a lump sum, up to a maximum of 300 hours, disregarding any final fraction of an hour. The payment shall be computed as follows:

1. When the officer or employee is paid on an hourly basis, the regular hourly rate that the officer or employee received at the time of termination from state service shall be multiplied by the number of hours of their accrued annual leave, which number is not to exceed 300 hours; or

2. When the officer or employee is paid on other than an hourly basis, the officer or employee's hourly rate shall be determined by converting the salary the officer or employee received at the time of termination from service into a working hourly rate. The converted hourly rate shall be multiplied by the number of hours of their accrued annual leave, which number is not to exceed 300 hours.

B. An unclassified officer or employee, who is paid for accrued annual leave upon termination from service and who is subsequently reemployed in a leave-earning classified or unclassified position, shall reimburse the state service, through the employing agency, for the number of hours the officer or employee was paid which exceeded the number of work hours that transpired during the officer or employee's break from state service. In turn, the officer or employee shall receive a credit for the number of hours of annual leave for which the officer or employee made reimbursement to state service.

SECTION 11: Disbursement of Accrued Sick Leave Upon Separation. An officer or employee shall not receive payment, directly or in kind, for any accrued sick leave remaining at the time of their termination from unclassified service.

SECTION 12: Continuance of Annual and Sick Leave. An unclassified officer or employee shall receive credit for all accrued unpaid annual leave and all unused sick leave upon reemployment by the state in the unclassified service within a period of five years from date of their termination from state service if the officer or employee's reemployment occurs during the effective period of this order.

SECTION 13: Compensatory Leave

A. Compensatory leave shall not be earned by the following persons:

1. department secretaries, undersecretaries, deputy secretaries, assistant secretaries, confidential assistants, including their equivalents appointed by elected officials, and the superintendent of education;

2. student employees, as defined under Civil Service Rules;

3. temporary, intermittent, or seasonal employees;

4. the commissioner of administration, the deputy commissioners of administration, and the assistant commissioners of administration;

5. the executive director or equivalent chief administrative officer of all boards, commissions, and authorities operating within the Executive Branch who are appointed by a board, commission, or authority;

6. members of boards, commissions, or authorities;

7. officials of the Executive Department, Office of the Governor, holding the following titles: administrative secretary for the Franklin Office, administrative secretary to the first lady, assistant chief of staff, assistant executive counsel, chief of staff, deputy chief of staff, deputy education policy advisor, director of boards and commissions, director of constituent services, director of Indian Affairs, director of Troops to Teachers, education policy advisor, executive assistant for Coastal Activities, executive counsel, executive director of children's cabinet, executive director of Office of Oil Spills, executive director of Rural Development, governor's liaison for Workforce Development, mansion coordinator, office coordinator for Disability Affairs, press secretary, senior policy analyst, special assistant to the governor, and/or special counsel;

8. other officers of the state who are appointed by the governor, including members of boards, commissions, and/or authorities; and

9. effective as of the date of the issuance and signing of this order, all part-time employees of the Executive Department, Office of the Governor.

B. Compensatory leave may be earned when an appointing authority, or the appointing authority's designee, requires an unclassified officer or employee in a compensatory leave earning position to work on a holiday or at a time that the officer or employee is not regularly required to be on duty. Compensatory leave may be granted for such overtime hours worked outside the regularly assigned work schedule or on holidays at the discretion of the appointing authority, except that officers or employees who are not exempt from the FLSA shall be compensated for such overtime in the same manner as classified employees in accordance with the FLSA.

C. An unclassified officer or employee who sets his own work schedule shall not be eligible to earn compensatory leave; however, the appointing authority of such an unclassified officer or employee may grant compensatory leave for specific instances of overtime work which the appointing authority judges to be extraordinary.

D. If an appointing authority permits the earning of compensatory leave to an FLSA-exempt unclassified officer or employee, then the amount of such leave shall be equal to the number of extra hours such an officer or employee is required to work.

E. When earned, compensatory leave shall be promptly credited to the unclassified officer or employee and, upon the approval of the appointing authority, or the appointing authority's designee, it may be used by the officer or employee at a future time.

SECTION 14: Use and Disbursement of Compensatory Leave While in Service

A. An unclassified officer or employee who is not exempt from the FLSA shall be paid in cash for any overtime hours worked in excess of the maximum balance allowed by the FLSA.

B. At the discretion of the appointing authority, an unclassified officer or employee may be paid in cash for any compensatory leave earned at the hour for hour rate in excess of 360 hours.

C. An appointing authority may require an unclassified officer or employee to use their earned compensatory leave at any time.

SECTION 15: Disbursement of Accrued Compensatory Leave Upon Separation

A. When an unclassified officer or employee transfers without a break in service to another department within state service, compensatory leave may be credited to the officer or employee at the discretion of the new appointing authority.

B. When an unclassified officer or employee separates from state service or transfers from the department in which the officer or employee earned compensatory leave to a department not crediting the officer or employee with the accrued balance of compensatory leave, the accrued compensatory leave shall be paid as follows:

1. All unused compensatory leave earned at the hour for hour rate or at the time and one-half rate shall be paid at the higher of following rates:

(a) the average regular rate received by the officer or employee during the last three years of his or her employment; or

(b) the final regular rate received by the officer or employee.

SECTION 16: Special Leave. An unclassified officer or employee shall be given time off, without loss of pay, annual leave, or sick leave when:

A. performing jury duty;

B. appearing as a summoned witness before a court, grand jury, or other public body or commission;

C. performing emergency civilian duty in relation to national defense;

D. voting in a primary, general, or special election which falls on the officer or employee's scheduled work day, provided not more than two hours of leave shall be allowed an officer or employee to vote in the parish of employment, and not more than one day of leave shall be allowed an officer or employee to vote in another parish;

E. participating in a State Civil Service examination on a regular work day, or taking a required examination pertinent to the officer or employee's state employment before a state licensing board;

F. the appointing authority determines an Act of God prevents the performance of the duties of the officer or employee;

G. the appointing authority determines that, due to local conditions or celebrations, it is impracticable for the officer or employee to work in the locality;

H. the officer or employee is ordered to report for a pre-induction physical examination incident to possible entry into the armed forces of the United States;

I. the officer or employee is a member of the National Guard and is ordered to active duty incident to a local emergency, an Act of God, a civil or criminal insurrection, a civil or criminal disobedience, or a similar occurrences of an extraordinary and emergency nature which threatens or affects the peace or property of the people of the State of Louisiana or the United States;

J. the officer or employee is engaged in the representation of a client in a civil or criminal proceeding pursuant to an order of a court of competent jurisdiction. However, if compensation for such services is available from another source, and is accepted by the officer or employee, the officer or employee may not accept any special leave compensation from the state for that time period; or

K. the officer or employee is a current member of Civil Air Patrol and, incident to such membership, is ordered to perform duty with troops or participate in field exercises or training, except that such leave shall not exceed 15 working days in any one calendar year and shall not be used for unit meetings or training conducted during such meetings.

SECTION 17: Military Leave

A. An unclassified officer or employee who is serving in a position that earns annual and sick leave and who is a member of a reserve component of the armed forces of the United States or the National Guard, shall be granted a leave of absence from a state position, without loss of pay or deduction of leave, when ordered to military duty for a period not to exceed 15 working days in any one calendar year. In addition, an appointing authority may grant annual leave, compensatory leave, leave without pay or any combination thereof, for a period which exceeds those 15 working days in any one calendar year, in accordance with other provisions of this order and as required by state and/or federal law. When the unclassified officer or employee is ordered to duty, the officer or employee shall give prompt and immediate notice to the appointing authority, or to the appointing authority's designee.

B. An unclassified officer or employee who is serving in a position that earns sick and annual leave and who is inducted into or ordered to military duty to fulfill a reserve obligation or ordered to active duty in connection with reserve activities for an indefinite period or for a period in excess of annual field training, is eligible for leave with pay as provided in this order and as required by state and/or federal law.

SECTION 18: Other Leave

A. Worker's Compensation Payments Optional Leave with Pay. An unclassified officer or employee who is absent from work due to a disability for which the officer or employee is entitled to receive worker's compensation benefits, has the option to use their sick and annual leave, which shall not exceed the amount necessary to receive total payments for leave and worker's compensation equal to their regular salary.

B. Law Enforcement On Duty Disability. When an unclassified officer or employee engaged in law enforcement work becomes disabled while in the performance of a duty of a hazardous nature that results in their being unable to perform their usual or normal duties, the disabled officer or employee's appointing authority may, upon the approval of the commissioner of administration, grant the disabled officer or employee a leave of absence with full pay during the period of such disability without charge against accrued sick or annual leave, provided the officer or employee pays to their department all amounts of weekly compensation received by the officer or employee as worker's compensation benefits during that period of leave with full pay.

C. Funeral Leave. An unclassified officer or employee may be granted leave without loss of pay, annual leave, or sick leave, for attendance at the funeral or burial rites of a parent, step-parent, child, step-child, brother, step-brother, sister, step-sister, spouse, mother-in-law, father-in-law, grandparent, or grandchild, provided such time off shall not exceed a period of two days for any single occurrence. Whenever possible, prior notice of the need to take said leave shall be given by the officer or employee to the appointing authority. At all other times, the officer or employee shall give notice of the need to take said leave at the time it is taken.

D. Educational Leave

1. An appointing authority may grant an unclassified officer or employee educational leave without pay, when it is for an approved educational purpose, for a maximum period of 12 months in accordance with the Rules developed by the commissioner of administration. Consecutive periods of leave without pay may be granted to the officer or employee by the appointing authority.

2. Upon the approval of the commissioner of administration and in accordance with the Rules developed by the commissioner of administration, an appointing authority may grant an unclassified officer or employee educational leave with pay for a maximum period of 30 calendar days during one calendar year. Upon the approval of the commissioner of administration and in accordance with the Rules developed by the commissioner of administration, the appointing authority may grant educational leave with pay for a maximum period of 90 calendar days during one calendar year if, in addition to the general prerequisites necessary for qualification for educational leave with pay, the educational instruction or training to be taken by the officer or employee is also necessary to, or will substantially aid, the administration of the state agency.

3. In accordance with the Rules developed by the commissioner of administration, an appointing authority may grant a stipend to an unclassified officer or employee who has been granted educational leave if 1) funds are available for such purposes, 2) the commissioner of administration approves the stipend, and 3) the commissioner of administration finds the stipend will be used for a proper, designated purpose and its proper use is clearly supported with appropriate documentation.

E. Leave of Absence without Pay

1. An appointing authority may extend a leave of absence without pay to an unclassified officer or employee for a period not to exceed one year, provided that such leave shall not prolong the period of the officer or employee's appointment or employment in state service.

2. If an unclassified officer or employee fails to report for, or refuses to be restored to, duty in pay status on the first working day following the expiration of an approved leave of absence without pay, or at an earlier date upon reasonable and proper notice from the appointing authority, or the appointing authority's designee, then the officer or employee shall be considered as having deserted their position of appointment or employment.

3. At the discretion of the appointing authority, or at the request of the unclassified officer or employee, a period of leave of absence without pay that has been extended to an officer or employee, may be curtailed, provided such curtailment is in the best interest of the state service and reasonable and proper notice thereof is furnished to the officer or employee.

SECTION 19: Holidays

A. Holidays shall be observed as provided in R.S. 1:55(B) and by proclamation issued by the governor.

B. An unclassified officer or employee in state service in a compensatory leave earning position shall be eligible for compensation when required to work on an observed holiday except:

1. when the officer or employee's regular work schedule averages less than 20 hours a week; or

2. when the officer or employee is on leave without pay during the period immediately preceding and following the holiday(s).

SECTION 20: Record Keeping

A. Daily attendance and leave records shall be maintained for each unclassified officer or employee who is eligible to accrue annual, sick, and/or compensatory leave.

B. An accrued balance of unused annual, compensatory, and/or sick leave shall be held in abeyance for an officer or employee who becomes ineligible to earn and use the particular type of leave pursuant to the terms of this order. The accrued balance(s) shall be available to the officer or employee, in accordance with the provisions of this order, when he or she again becomes eligible to earn and use said leave, or when he or she separates from state service.

SECTION 21: Compliance. All departments, commissions, boards, agencies, and officers of the state, or any political subdivisions within the Executive Branch of state government shall comply with and cooperate with the implementation of the provisions of this order.

SECTION 22: Effective Dates. Upon signature of the governor, the provisions of this order shall be applicable to all current officers or employees in the unclassified state service and, as to those employees, retroactive to noon on January 8, 1996. Nonetheless, any rights that accrued prior to August 12, 1996 to the officers and employees in the unclassified state service, pursuant to the provisions of Executive Orders EWE 94-32 and 95-27, shall not be adversely affected by the retroactive application of this order. This order shall remain in effect until amended, modified, terminated, or rescinded by the governor, or until terminated by operation of law.

IN WITNESS WHEREOF, I have set my hand officially and caused to be affixed the Great Seal of the State of Louisiana, at the Capitol, in the City of Baton Rouge, on this 30th day of December, 1996.

M.J. "Mike" Foster, Jr.
Governor

ATTEST BY
THE GOVERNOR
Fox McKeithen