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CHAPTER 3-6C

STATE EMPLOYMENT GENERAL PROVISIONS

3-6C-1      Definition of terms in chapters 3-6C to 3-6F.
3-6C-2      Human resources functions of bureau--Delegation.
3-6C-3      Temporary, patient, and student employees' holiday compensation.
3-6C-4      Vacation leave--Accrual and accumulation--Advanced leave.
3-6C-5      Employees entitled to vacation leave.
3-6C-6      Vacation on retirement or resignation--Lump-sum payment option--Payment upon death.
3-6C-7      Sick leave--Accrual and accumulation--Medical certificate--Vacation leave used for sickness--Personal emergency leave.
3-6C-8      Accrual of leave while receiving workers' compensation.
3-6C-9      Advanced sick leave.
3-6C-10      Workers' compensation not payable while on vacation or sick leave.
3-6C-11      Use of sick pay or vacation pay to supplement workers' compensation.
3-6C-12      Payment for accrued unused sick leave on termination of employment.
3-6C-13      Donation of accrued vested leave to another employee--Approval by bureau.
3-6C-14      Restrictions on donation of leave.
3-6C-15      Donation of vacation leave to recipient caring for terminally ill family member--Approval by bureau.
3-6C-16      Accrued leave transferred when employee transferred between agencies.
3-6C-17      Leave of absence without pay.
3-6C-18      Promulgation of rules governing leave and other benefits.
3-6C-19      Freedom of speech of officers and employees--Restrictive rules prohibited.
3-6C-20      Holiday benefit eligibility.
3-6C-21      Leave from work for American Red Cross disaster service volunteers.
3-6C-22      Disaster service not to affect other benefits.
3-6C-23      Appointing authority to have exclusive authority over final selection of employees.
3-6C-24      Personnel records.
3-6C-25      Student intern preference to South Dakota residents or students.
3-6C-26      Criminal background checks for certain executive branch employees.


     3-6C-1.   Definition of terms in chapters 3-6C to 3-6F. Terms as used in chapters 3-6C to 3-6F, inclusive, mean:
             (1)      "Appointing authority," the hiring entity;
             (2)      "Commission," the Civil Service Commission;
             (3)      "Bureau," the Bureau of Human Resources;
             (4)      "Bureau commissioner," a person appointed by and serving at the pleasure of the Governor to administer one of the bureaus of the executive branch of state government;
             (5)      "Civil service," a system of human resource management for the executive branch of state government based on merit principles governing the appointment, promotion, compensation, removal, transfer, and other matters related to human resource management;
             (6)      "Civil service employee," a permanent employee not otherwise exempted by the provisions of chapter 3-6D;
             (7)      "Change in family status," marriage, divorce, or death of the member, spouse, or any covered dependent; birth or adoption of a child; or a change in the employment status of the member, spouse, or any covered dependent;
             (8)      "Class of positions," all civil service positions that are sufficiently similar in kind or subject matter of work performed, level of difficulty and responsibility, and knowledge, skills, and abilities to warrant similar treatment in personnel and pay administration;
             (9)      "Compensation," the total compensation, which includes direct salary and fringe benefits. Fringe benefits includes employer paid retirement programs, social security, health insurance, life insurance, and any other programs offering a benefit to the employee in which the employer participates;
             (10)      "Contribution," the dollar amount established by the human resources commissioner sufficient to cover the cost of the insurance plan;
             (11)      "Department secretary," a person appointed by and serving at the pleasure of the Governor to administer one of the major departments of the executive branch of state government;
             (12)      "Dependent," a person who is not an employee and is:
             (a)      An employee's spouse who is not divorced or legally separated from the employee; or
             (b)      An employee's child who is:
             (i)      Under the age of twenty-six or under the age of twenty-nine if a full-time student;
             (ii)      Not benefit eligible through their employer or spouses employer; and
             (iii)      Not in military service;
             (13)      "Deputy," a person who serves as first assistant to, and at the pleasure of, a department secretary, bureau commissioner, or division director if allowed by law;
             (14)      "Division director," a person appointed by and serving at the pleasure of the department secretary or bureau commissioner to administer a division within a major department or bureau of the executive branch of state government;
             (15)      "Employee," any person working for state government, paid by the state, or remunerated by other funds raised, appropriated, or otherwise generated by the state. The term does not include any person working for any authority authorized by law;
             (16)      "Employer," the State of South Dakota;
             (17)      "Executive branch employee," any employee working for state government except those working for the legislative or judicial branches of state government;
             (18)      "Human resources commissioner," the commissioner of the bureau;
             (19)      "Law enforcement employee," any certified law enforcement officer working for the Division of Criminal Investigation or the Highway Patrol;
             (20)      "Member," a state employee or retiree who is covered by the plan as the primary insured and who may elect to have his or her dependents covered by the plan;
             (21)      "Permanent employee," an active employee placed in a permanent position, employed by a participating agency. This term does not include temporary, emergency, patient, or student employees;
             (22)      "Plan," the state employee's benefit insurance plan as created by chapter 3-6E;
             (23)      "Plan-eligible employee," a permanent employee who is scheduled to work twenty or more hours a week at least six months of the year or an employee employed by an appointing authority who has worked an average of thirty hours or more per week during a twelve-month standard measurement period, as defined by the Patient Protection and Affordable Care Act of 2010, as amended to January 1, 2019;
             (24)      "Position," a collection of duties and responsibilities assigned by the appointing authority to one person;
             (25)      "Safety-sensitive position," any law enforcement officer authorized to carry firearms and any custody staff employed by any agency responsible for the rehabilitation or treatment of any adjudicated adult or juvenile;
             (26)      "Self-insured," a state-supported benefit plan in which the initial risk for any losses is born by the plan;
             (27)      "Spouse," an employee's husband or wife as a result of marriage that is legally recognized in this state or under the laws of the state where the marriage occurred. The term does not include a spouse as a result of a common-law marriage;
             (28)      "Substance," marijuana as defined in subdivision 22-42-1(7) and any controlled drug or substance as defined in chapter 34-20B.

Source: SL 2012, ch 23, § 12; SL 2019, ch 21, § 1.


     3-6C-2.   Human resources functions of bureau--Delegation. The bureau shall perform human resource functions for the following agencies:
             (1)      Board of Regents;
             (2)      Board of Trustees of the South Dakota Retirement System; and
             (3)      All other state departments, bureaus, divisions, boards, and commissions of the executive branch.
     The bureau may delegate human resource functions to either the Board of Regents or the Board of Trustees of the South Dakota Retirement System through agreements entered into pursuant to chapter 1-24.

Source: SL 2012, ch 23, § 13; SL 2019, ch 21, § 2.


     3-6C-3.   Temporary, patient, and student employees' holiday compensation. A temporary, patient, or student employee, as defined by rules promulgated by the commission pursuant to chapter 1-26, may not receive any compensation for any holiday as defined in § 1-5-1. However, the employee shall be compensated for any hours actually worked on holidays.

Source: SL 2012, ch 23, § 14; SL 2019, ch 21, § 3.


     3-6C-4.   Vacation leave--Accrual and accumulation--Advanced leave. Each permanent employee shall earn up to one hundred twenty hours vacation leave per full year of employment. A permanent employee with more than fifteen years employment shall earn up to one hundred sixty hours vacation leave per full year of employment. Vacation leave shall be accrued on an hourly, biweekly, semimonthly, or monthly basis as determined by the human resources commissioner. Vacation leave may not be used until the employee has served the initial six-month period. Vacation leave is cumulative only to the extent of that which may be earned in a period of time not exceeding two years of regular and continuous state employment. Vacation leave may not be advanced to an employee at any time.

Source: SL 2012, ch 23, § 15; SL 2019, ch 21, § 4.


     3-6C-5.   Employees entitled to vacation leave. A permanent employee, including any state employee exempt from the provisions of chapter 3-6D, who has been employed by the state for a continuous period of six months is entitled to vacation leave.

Source: SL 2012, ch 23, § 16; SL 2019, ch 21, § 5.


     3-6C-6.   Vacation on retirement or resignation--Lump-sum payment option--Payment upon death. An employee who retires or voluntarily resigns may terminate employment at the end of the employee's accrued vacation leave or receive a lump-sum payment for the unused vacation leave which has accrued as of the employee's final day on the payroll. An employee meeting the definition of a participant in subdivision 3-13A-2(7) shall have such lump-sum payment transmitted to the fund pursuant to the provisions of § 3-13A-5. However, if the employee dies, payment for the accumulated vacation leave shall be paid according to §§ 3-8-8 to 3-8-11, inclusive.

Source: SL 2012, ch 23, § 17; SL 2019, ch 21, § 6.


     3-6C-7.   Sick leave--Accrual and accumulation--Medical certificate--Vacation leave used for sickness--Personal emergency leave. Each permanent employee shall earn up to one hundred twelve hours sick leave per full year of employment. Sick leave shall be accrued on an hourly, biweekly, semimonthly, or monthly basis as determined by the human resources commissioner and shall accumulate without limit as to the number of hours of such accumulation. The use of sick leave shall be supported by a medical certificate upon the request of the human resources commissioner. An employee is not entitled to more than the employee's accrued sick leave without first using all of the employee's accumulated vacation leave.
     An employee may use up to forty hours of the employee's accrued sick leave annually for personal emergency reasons. Leave for personal emergencies may not be accumulated from year to year. The commission, pursuant to chapter 1-26, shall promulgate rules to implement this provision.
     Adoption of a child by an employee is treated as natural childbirth for leave purposes.

Source: SL 2012, ch 23, § 18; SL 2019, ch 21, § 7.


     3-6C-8.   Accrual of leave while receiving workers' compensation. A permanent employee may accrue vacation leave, but not sick leave, while receiving workers' compensation under § 62-4-3.

Source: SL 2012, ch 23, § 19; SL 2019, ch 21, § 8.


     3-6C-9.   Advanced sick leave. Sick leave may be advanced to a permanent employee who has been in regular continuous employment of the state for at least one full year if the employee has used all of the employee's accrued vacation and sick leave. If an employee receives advanced sick leave, any subsequent sick leave accrued by the employee shall be credited against the employee's negative sick leave balance until the advanced sick leave is repaid. The employee's advanced negative sick leave balance may not exceed two hundred twenty-eight hours. Advanced sick leave is within the discretion of the bureau under rules promulgated by the commission pursuant to chapter 1-26, and is authorized only if the bureau's consent has first been obtained.

Source: SL 2012, ch 23, § 20; SL 2019, ch 21, § 9.


     3-6C-10.   Workers' compensation not payable while on vacation or sick leave. An employee may not be compensated under § 62-4-3 for a period for which the employee has also received sick pay authorized by § 3-6C-7 or 3-6C-9 or vacation pay authorized by § 3-6C-4. Nothing in this section limits any other compensation or benefits due to an employee under Title 62.

Source: SL 2012, ch 23, § 21; SL 2019, ch 21, § 10.


     3-6C-11.   Use of sick pay or vacation pay to supplement workers' compensation. If an injured permanent employee's workers' compensation benefits are not equal to the employee's salary, the employee may, notwithstanding any provision in § 3-6C-10, use paid sick or vacation leave in an amount necessary to make up the difference between the employee's salary and the workers' compensation benefits.

Source: SL 2012, ch 23, § 22; SL 2019, ch 21, § 11.


     3-6C-12.   Payment for accrued unused sick leave on termination of employment. A permanent employee, who has been continuously employed in a permanent position for at least seven years prior to the date of the employee's retirement, voluntary resignation, layoff, termination for inability to perform job functions due to physical disability, or death, shall receive payment for one-fourth of the unused sick leave which has accrued as of the employee's final day on payroll. The payment may not exceed the sum of four hundred eighty hours. Payment shall be made in a lump sum with the employee's last payroll warrant. An employee meeting the definition of a participant in subdivision 3-13A-2(7) shall have the lump-sum payment transmitted to the fund pursuant to the provisions of § 3-13A-5. However, if the employee dies, payment for the accumulated sick leave shall be paid in accordance with §§ 3-8-8 to 3-8-11, inclusive.

Source: SL 2012, ch 23, § 23; SL 2019, ch 21, § 12.


     3-6C-13.   Donation of accrued vested leave to another employee--Approval by bureau. A permanent employee may donate accrued vested leave to another permanent employee who has exhausted all accrued vacation and sick leave and who meets one of the following criteria:
             (1)      The recipient employee is terminally ill and the employee's condition does not allow a return to work; or
             (2)      The recipient employee is suffering from an acutely life threatening illness or injury which has been certified by a licensed physician as having a significant likelihood of terminating fatally and the employee's physical condition does not allow a return to work for a period of at least ninety consecutive days.
     The recipient employee may not receive donated leave once the employee is able to return to work or is approved for disability benefits provided for in § 3-12C-803 or any other public disability benefits.
     The donation of accrued vested leave may not exceed two thousand eighty hours per recipient employee as defined in subdivision (1) of this section or one thousand forty hours per illness or injury for a recipient employee as defined in subdivision (2) of this section, not to exceed two thousand eighty hours per recipient. The donation shall be approved by the bureau under rules promulgated by the commission pursuant to chapter 1-26, including number of hours to be donated, confidentiality of a donation, definition of terminally ill, definition of life threatening illness or injury, criteria for determining employee eligibility to receive or donate leave, coordination of leave donation with disability and other public benefits and in compliance with the provisions of § 3-6C-12, and procedures for approval of the donation.

Source: SL 2012, ch 23, § 24; SL 2019, ch 21, § 13.


     3-6C-14.   Restrictions on donation of leave. Any donation of leave pursuant to § 3-6C-13 or 3-6C-15 may be restricted as follows:
             (1)      The donating employee may only donate leave to an employee who is at the same or lower pay grade as the donating employee; and
             (2)      The donation may be denied based upon funding considerations within the agency, at the discretion of the human resources commissioner.

Source: SL 2012, ch 23, § 25; SL 2019, ch 21, § 14.


     3-6C-15.   Donation of vacation leave to recipient caring for terminally ill family member--Approval by bureau. A permanent employee may donate accrued vested vacation leave to another permanent employee who meets all of the following criteria:
             (1)      The recipient employee will use the donated leave to care for the recipient employee's spouse, child, or parent who is terminally ill;
             (2)      The recipient employee's spouse, child, or parent is suffering from an acutely life threatening illness or injury which has been certified by a licensed physician as having a significant likelihood of terminating fatally; and
             (3)      The recipient employee has exhausted all accrued vacation and personal emergency leave.
     The total paid leave, including the donated vacation leave pursuant to this section, may not exceed twelve weeks annually per recipient employee. The donation shall be approved by the bureau under rules promulgated pursuant to chapter 1-26 by the commission, including number of hours to be donated, confidentiality of a donation, definition of terminally ill, definition of life threatening illness or injury, criteria for determining employee eligibility to receive or donate leave and for prorating donated leave for part-time employees, and procedures for approval of the donation. Any donation shall be in compliance with the provisions of §§ 3-6C-4 and 3-6C-5.

Source: SL 2012, ch 23, § 26; SL 2019, ch 21, § 15.


     3-6C-16.   Accrued leave transferred when employee transferred between agencies. If a permanent employee transfers from one state department, institution, agency, or office to another state department, institution, agency, or office, the employee may transfer all unused accrued vacation and sick leave as was allowed the employee under the provisions of §§ 3-6C-4 and 3-6C-7.

Source: SL 2012, ch 23, § 27; SL 2019, ch 21, § 16.


     3-6C-17.   Leave of absence without pay. The provisions of §§ 3-6C-4 to 3-6C-16, inclusive, do not prohibit the taking of leave of absence for vacation or sickness without pay if the leave of absence is authorized and approved by the board, commission, agency, department, office, or officer employing the employee, pursuant to rules promulgated pursuant to chapter 1-26 by the human resources commissioner.

Source: SL 2012, ch 23, § 28; SL 2019, ch 21, § 17.


     3-6C-18.   Promulgation of rules governing leave and other benefits. The commission may, pursuant to chapter 1-26, promulgate rules to further define the types of leave permitted to be taken as sick leave, vacation leave, and leave of absence, including the following: child care, jury duty, military service, maternity, and education and other fringe benefits.

Source: SL 2012, ch 23, § 29; SL 2019, ch 21, § 18.


     3-6C-19.   Freedom of speech of officers and employees--Restrictive rules prohibited. It is the policy of the State of South Dakota that citizens of this state and of the United States may not be deprived of their freedom of speech guaranteed them by the constitutions of the United States of America and of the State of South Dakota, by reason of the fact that they are state officers and employees. No state agency may pass a rule restricting or prohibiting the constitutionally guaranteed right of its employees and officers to express their opinions.

Source: SL 2012, ch 23, § 30.


     3-6C-20.   Holiday benefit eligibility. Holidays, other than Sundays, enumerated in § 1-5-1, are a benefit for permanent employees including those who are not scheduled to work the day on which a holiday falls. A permanent employee shall receive holiday pay if the employee works at least one shift or is on approved paid leave during the calendar week in which the holiday falls. Part-time permanent employees shall receive prorated holiday pay. For payroll and leave purposes, a holiday is no more than eight hours long.

Source: SL 2012, ch 23, § 31; SL 2019, ch 21, § 19.


     3-6C-21.   Leave from work for American Red Cross disaster service volunteers. A permanent employee who is a certified disaster service volunteer of the American Red Cross may be granted leave from work with pay not to exceed ten days in any one calendar year to participate in disaster relief services for the American Red Cross during a State of South Dakota declared disaster, upon the request of the American Red Cross for the services of the employee and upon approval of that employee's appointing authority. However, an employee who is needed by the employee's appointing authority to perform job-related disaster services may not be granted this leave. The appointing authority shall compensate an employee granted leave under this section at the employee's regular rate of pay for regular work hours during which the employee is absent from work.

Source: SL 2012, ch 23, § 32; SL 2019, ch 21, § 20.


     3-6C-22.   Disaster service not to affect other benefits. Any absence approved pursuant to § 3-6C-21 for disaster service volunteers does not affect a permanent employee's right to receive normal vacation and sick leave, bonus, advancement, and other advantages of employment.

Source: SL 2012, ch 23, § 33; SL 2019, ch 21, § 21.


     3-6C-23.   Appointing authority to have exclusive authority over final selection of employees. Each appointing authority shall have exclusive authority to make the final selection of employees in the authority's respective department, bureau, division, and institution.

Source: SL 2012, ch 23, § 34.


     3-6C-24.   Personnel records. The human resources commissioner shall establish and maintain appropriate records on all employees relating to the several provisions of this chapter. The commission may promulgate rules, pursuant to chapter 1-26, to regulate the records maintained by the bureau. Any records required or maintained by the bureau, including performance appraisals, that pertain to an employee shall be available and open to inspection by the employee during normal business hours.

Source: SL 2012, ch 23, § 35; SL 2019, ch 21, § 22.


     3-6C-25.   Student intern preference to South Dakota residents or students. Preference in the selection of student interns shall be given to those students who are residents of South Dakota or attending an institution of higher education within this state.

Source: SL 2012, ch 23, § 36.


     3-6C-26.   Criminal background checks for certain executive branch employees. Each current or new executive branch employee, whose duties include access to confidential information obtained from the United States Internal Revenue Service or from an authorized secondary source, shall submit to and successfully pass a state and federal criminal background investigation. The employee shall submit to a fingerprint check by the Division of Criminal Investigation and the Federal Bureau of Investigation before being granted access to any confidential information. The appointing authority shall submit the completed fingerprint card to the Division of Criminal Investigation. In addition to the initial criminal background investigation, each employee shall submit to a criminal background investigation every ten years thereafter. The human resources commissioner may promulgate rules, pursuant to chapter 1-26, to establish policies for exempt employees concerning the procedure for submitting fingerprints and completing the criminal background investigation. The commission may promulgate rules, pursuant to chapter 1-26, to establish policies for civil service employees concerning the procedure for submitting fingerprints and completing the criminal background investigation.
     The appointing authority may pay any fee charged for the cost of fingerprinting or the criminal background investigation for any person whose employment is subject to the requirements of this section.

Source: SL 2017, ch 24, § 1.


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