SB 635 Text

Introduced Version Senate Bill 635 History

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sb635 intr 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.