Rule 55:09:04:01 Vacation leave.

CHAPTER 55:09:04

LEAVES OF ABSENCE

Section

55:09:04:01 Vacation leave.

55:09:04:02 Sick leave.

55:09:04:03 Minimum charge for sick leave.

55:09:04:04 Reinstatement of sick leave.

55:09:04:04.01 Paid family leave.

55:09:04:05 Military service leave.

55:09:04:06 Fire suppression or ambulance service.

55:09:04:07 Advanced sick leave.

55:09:04:08 Military training leave.

55:09:04:09 Court and jury leave.

55:09:04:10 Leave of absence without pay.

55:09:04:11 Reporting absences or absence without leave.

55:09:04:12 Family and medical leave.

55:09:04:13 Administrative leave.

55:09:04:14 Donation of leave -- Recipient requirements.

55:09:04:15 Donation of leave for care of spouse, child, or parent -- Recipient requirements.

55:09:04:16 Donation of leave -- Donor requirements.

55:09:04:17 Donation of leave -- Procedure.

55:09:04:18 Contagious disease -- Procedure.

55:09:04:19 Emergency furlough.

55:09:04:01. Vacation leave. Each permanent employee is entitled to vacation leave with pay. Vacation leave accruals start with the date of employment but may not be paid out upon separation unless six months of continuous service have been completed. Any request for vacation leave shall be approved by an employee's immediate supervisor before the time of departure. A leave request may not exceed the amount accumulated.

Vacation leave shall be accrued each semimonthly pay period and is accrued in equal increments to the maximum specified in SDCL 3-6C-4. An employee with less than 15 years of service who is paid monthly may accrue no more than 10 hours of vacation leave a month. An employee with 15 years or more of service who is paid monthly may not accrue more than 13.334 hours of vacation leave a month. The 15 years of service does not have to be consecutive. A permanent employee who works less than full time accrues prorated vacation leave based on the number of hours paid in the pay period.

An employee whose appointment has expired or who has been laid off or terminated for cause shall take earned vacation in a lump sum. If an employee who is terminating employment is on vacation leave, no other type of leave may be used.

If an employee transfers, all accumulated leave shall be transferred to the new department.

Source: 39 SDR 99, effective December 3, 2012; 41 SDR 58, effective October 14, 2014; 46 SDR 146, effective July 1, 2020.

General Authority: SDCL 3-6C-18.

Law Implemented: SDCL 3-6C-4, 3-6C-18.

55:09:04:02. Sick leave. Sick leave with pay shall be accrued each semimonthly pay period in equal increments to the maximum specified in SDCL 3-6C-7. An employee paid monthly shall accumulate sick leave at a rate of 9.334 hours per month. An employee who works less than full time shall accrue prorated sick leave based on the number of hours paid in the pay period.

Sick leave may be granted for the illness, health care needs, or temporary care of the employee, the employee's immediate family, or a person for whom the employee is the legal guardian. An employee may use up to five days of sick leave, as bereavement leave, for the loss of an immediate family member. An employee who is on approved leave, except terminal vacation leave, and becomes injured or ill may use sick leave.

The appointing authority may, with the approval of the commissioner, require the employee to produce a doctor's statement to support a request for sick leave.

Source: 39 SDR 99, effective December 3, 2012; 44 SDR 99, effective December 11, 2017; 46 SDR 146, effective July 1, 2020.

General Authority: SDCL 3-6C-7, 3-6C-18.

Law Implemented: SDCL 3-6C-7, 3-6C-18.

55:09:04:03. Minimum charge for sick leave. If an appointing authority arranges a replacement worker or employs a temporary worker due to an employee's absence, the appointing authority may require a minimum charge of up to four hours of sick leave for the employee's absence.

Source: 39 SDR 99, effective December 3, 2012.

General Authority: SDCL 3-6C-7, 3-6C-18.

Law Implemented: SDCL 3-6C-7, 3-6C-18.

55:09:04:04. Reinstatement of sick leave. If a civil service employee was laid off, is rehired within one year after the employee's termination date, and has not received payment for unused sick leave pursuant to SDCL 3-6C-12, the employee is entitled to reinstatement of the sick leave that the employee had accrued at the time of termination. A person who voluntarily terminates employment is not entitled to a reinstatement of unused sick leave.

Source: 39 SDR 99, effective December 3, 2012.

General Authority: SDCL 3-6C-7, 3-6C-18.

Law Implemented: SDCL 3-6C-7, 3-6C-18.

55:09:04:05. Military service leave. An employee may use up to 40 hours of accumulated sick leave annually for any military-related service as a member of the military reserve or national guard.

Source: 39 SDR 99, effective December 3, 2012; 46 SDR 146, effective July 1, 2020; 47 SDR 68, effective December 8, 2020.

General Authority: SDCL 3-6C-18.

Law Implemented: SDCL 3-6C-18.

55:09:04:06. Fire suppression or ambulance service. An employee who is a member of a volunteer fire department or ambulance service is not required to use leave for fire suppression or ambulance service if the service is performed within the volunteer's established normal response area or mutual aid response area as defined locally. Volunteer service outside of this area shall have prior approval of the appointing authority and the commissioner. The absence is considered administrative leave for payroll purposes.

Source: 39 SDR 99, effective December 3, 2012.

General Authority: SDCL 3-6C-18.

Law Implemented: SDCL 3-6C-18.

55:09:04:07. Advanced sick leave. An employee who has been employed by the state in a permanent position for one year or more may request advanced sick leave for not more than 28 days once all other leave is exhausted. An employee requesting advanced sick leave shall submit a signed request supported by a statement from the employee's doctor. An employee who is a Christian Scientist may submit a statement from a Christian Scientist practitioner. The request shall be approved by the appointing authority and the commissioner before the advance is granted. An employee who terminates employment before advanced sick leave has been repaid shall repay the remaining advanced hours at the employee's current rate of pay.

Source: 39 SDR 99, effective December 3, 2012.

General Authority: SDCL 3-6C-7, 3-6C-9, 3-6C-18.

Law Implemented: SDCL 3-6C-7, 3-6C-9, 3-6C-18.

55:09:04:08. Military training leave. Military leave for training may not be granted to an employee who is on vacation leave and terminating employment. Military leave for training may not be accumulated. A temporary employee is not entitled to military leave for training. A new employee on six months probationary status is not considered a temporary employee. The appointing authority shall maintain a record of military leave taken with the regular vacation and sick leave account of each state employee. An employee requesting military leave for training shall obtain a written order or letter from the commander of the employee's reserve or national guard unit showing the dates of the training period. This notice shall be submitted to the appointing authority 15 days before the date of the employee's departure for training.

Source: 39 SDR 99, effective December 3, 2012.

General Authority: SDCL 3-6C-18.

Law Implemented: SDCL 3-6C-18.

Note: Employers and employees should note the difference between units called for military training up to 15 working days with pay and units called for active duty.

55:09:04:09. Court and jury leave. If an employee is subpoenaed to testify in any civil or criminal proceeding because of the employee's official capacity, the employee shall receive the employee's regular salary without loss of leave credits and may receive actual expenses according to state rates, but may not receive witness fees. If an employee is a party to or a witness in private litigation not related to his or her official capacity, the employee shall use vacation leave or leave without pay. If an employee is summoned to serve on a jury, the employee shall receive the employee's regular salary without loss of leave credits and the per diem and mileage provided for by SDCL 16-13-46. An employee summoned either as a witness or a juror shall notify the employee's supervisor at once.

Source: 39 SDR 99, effective December 3, 2012.

General Authority: SDCL 3-6C-18.

Law Implemented: SDCL 3-6C-18.

55:09:04:10. Leave of absence without pay. Leave of absence without pay means approved absence from duty for which the employee is not paid. The leave is available to any permanent employee, may not exceed twelve weeks, and shall be approved by the appointing authority. The appointing authority may submit a written request with justification for an extension of an employee's leave to the commissioner. The appointing authority for an employee of the board of regents who is exempt from the civil service act may submit a written request with justification for an extension of the employee's leave to the Board of Regents. Leave of absence without pay may be granted to an employee even though all of the employee's accrued vacation leave has not been used. No leave credits may be earned during the authorized leave of absence without pay.

Source: 39 SDR 99, effective December 3, 2012.

General Authority: SDCL 3-6C-17, 3-6C-18.

Law Implemented: SDCL 3-6C-18.

55:09:04:11. Reporting absences or absence without leave. An employee who is absent from duty shall report the reason for the absence to the employee's supervisor as soon as possible. Unauthorized or unreported absences are considered absence without leave, and a deduction of pay shall be made for the period of absence. An unauthorized or unreported absence may be cause for disciplinary action.

Source: 39 SDR 99, effective December 3, 2012.

General Authority: SDCL 3-6C-17, 3-6C-18.

Law Implemented: SDCL 3-6C-17, 3-6C-18.

55:09:04:12. Family and medical leave. Family and medical leave is available to an employee who has worked for twelve months or more and who has worked 1,250 hours or more. Up to 12 weeks of sick leave, paid family leave, vacation leave, leave without pay, or any combination of these leaves may be taken as family and medical leave. An employee may request family and medical leave for any of the following purposes:

(1) The birth of a child of the employee or the placement of a child with the employee for adoption or foster care;

(2) To bond with a child so long as the leave is taken within one year of the child's birth or placement;

(3) The need to care for the spouse, child, or parent of the employee if the spouse, child, or parent has a serious health condition;

(4) A serious health condition; or

(5) A qualifying exigency arising out of the fact that the employee's spouse, son, daughter, or parent is on active duty or called to active duty status as a member of the National Guard or another reserve component of the armed forces of the United States in support of a contingency operation. A qualifying exigency includes attending certain military events, arranging for alternative childcare, addressing certain financial and legal arrangements, attending certain counseling sessions, and attending post-deployment reintegration briefings.

An employee who has worked for twelve months or more and who has worked 1,250 hours may also request family and medical leave to care for a spouse, son, daughter, parent, or the employee's next of kin of a covered servicemember with a serious injury or illness. A covered servicemember is anyone who is currently a member of the regular armed forces, a reserve component of the armed forces, or the National Guard. A serious injury or illness is an injury or illness incurred by a covered servicemember in the line of duty on active duty that may render the servicemember medically unfit to perform the duties of the servicemember's office, grade, rank or rating and for which the servicemember is undergoing medical treatment, recuperation, therapy, or outpatient treatment or is on the temporary disability retired list. An employee may also take military caregiver leave to care for a family member who sustained a qualifying injury for up to five years after the member has been discharged from military service. Up to 26 weeks of sick leave, vacation leave, leave without pay, or any combination of these leaves may be taken as family and medical leave for military caregiver leave during a single 12-month period.

If sick leave is used for any part of the family and medical leave, the employee may be required to support the request with a statement from a medical doctor certifying the nature of the serious health condition.

Source: 39 SDR 99, effective December 3, 2012; 44 SDR 99, effective December 11, 2017; 46 SDR 146, effective July 1, 2020.

General Authority: SDCL 3-6C-18.

Law Implemented: SDCL 3-6C-18.

55:09:04:13. Administrative leave. Administrative leave shall be granted in the following situations, allowing an employee to receive compensation for the hours that the employee would normally have worked with no loss of leave:

(1) An office is closed by a department secretary, bureau commissioner, institutional administrator, or the Governor;

(2) An employee is a member of a volunteer fire department, reserve law enforcement unit, emergency search and rescue squad, or ambulance service and is called to emergency duty during working hours;

(3) An investigation of charges made against an employee upon which disciplinary action could be taken; and

(4) For any other purpose that has been requested in writing and approved by the commissioner.

An appointing authority shall inform the commissioner of any office closing.

Source: 39 SDR 99, effective December 3, 2012.

General Authority: SDCL 3-6C-18.

Law Implemented: SDCL 3-6C-18.

55:09:04:14. Donation of leave -- Recipient requirements. An employee may receive donated vested leave if the following requirements are met:

(1) The employee is employed in a permanent position for at least one year and is eligible for the accumulation of leave under SDCL 3-6C-4 and 3-6C-7;

(2) The employee has been certified by a physician as:

(a) Terminally ill and unable to return to work; or

(b) Suffering from life-threatening illness or injury which prevents the employee from working for at least 90 consecutive days;

(3) The employee has made a written request for and obtained the approval of the commissioner to receive donated vested leave;

(4) The employee has applied for any other public disability programs for which the employee may be eligible including any benefits available through Social Security or the South Dakota Retirement System; and

(5) The employee has exhausted all of the employee's leave benefits.

Donated leave benefits cease after 2,080 hours of donated leave have been used by an employee who is terminally ill, after 1,040 hours of donated leave have been used by an employee who is suffering from a life-threatening illness or injury, if other public disability benefits have been approved, if the employee recovers from the terminal illness or life-threatening illness or injury, or upon the death of the recipient employee. The rate of payment of donated leave is the recipient's current base pay. Sick and vacation leave may not be accrued by a recipient employee on donated leave.

For every four hours of sick leave donated by an employee, the recipient employee receives one hour of sick leave. For every one hour of vacation leave donated by an employee, the recipient employee receives one hour of vacation leave.

Source: 39 SDR 99, effective December 3, 2012.

General Authority: SDCL 3-6C-13, 3-6C-15, 3-6C-18.

Law Implemented: SDCL 3-6C-13, 3-6C-15, 3-6C-18.

55:09:04:15. Donation of leave for care of spouse, child, or parent -- Recipient requirements. Pursuant to SDCL 3-6C-15, an employee may receive donated vested vacation leave if the following requirements are met:

(1) The employee is employed in a permanent position for at least one year and is eligible for the accumulation of leave under SDCL 3-6C-4 and 3-6C-7.

(2) The employee's spouse, child, or parent has been certified by a physician as:

(a) Terminally ill; or

(b) Suffering from life-threatening illness or injury;

(3) The employee has made a written request for and obtained the approval of the commissioner to receive donated vested leave; and

(4) The employee has exhausted all of the employee's leave benefits that the employee is entitled to use.

Donated leave ceases when the donated vested vacation leave received plus any other leave taken by the employee pursuant to the Family and Medical Leave Act exceeds twelve weeks annually, when the spouse, child, or parent recovers from the terminal illness or life threatening illness or injury, or five days after the death of the spouse, child, or parent. The rate of payment of donated leave is the recipient's current base pay. Sick and vacation leave may not be accrued by a recipient employee on donated leave.

For every one hour of vacation leave donated by an employee, the recipient employee receives one hour of vacation leave.

Source: 39 SDR 99, effective December 3, 2012.

General Authority: SDCL 3-6C-13, 3-6C-15, 3-6C-18.

Law Implemented: SDCL 3-6C-13, 3-6C-15, 3-6C-18.

55:09:04:16. Donation of leave -- Donor requirements. An employee is eligible to donate vested leave if the employee is employed in a position eligible for the accumulation of leave under SDCL 3-6C-4 and 3-6C-7 and has accumulated more than 80 hours of vacation leave or 120 hours of sick leave.

The donating employee may donate vacation leave in excess of 80 hours or sick leave in excess of 120 hours. The minimum donation of vested vacation leave is one hour. The minimum donation of vested sick leave is four hours. Sick leave shall be donated in increments of four hours. The donating employee may donate leave to an employee who is at the same paygrade as the donating employee or who is at a lower paygrade than the donating employee. If an employee does not have a pay grade that has been established by the Bureau of Human Resources, the employee may donate leave to an employee who is at the same rate of pay as the donating employee or who is at a lower rate of pay than the donating employee.

Source: 39 SDR 99, effective December 3, 2012; 41 SDR 58, effective October 14, 2014.

General Authority: SDCL 3-6C-18.

Law Implemented: SDCL 3-6C-14, 3-6C-18.

55:09:04:17. Donation of leave -- Procedure. An employee donating leave shall give written notice of the amount and type of leave being donated and the name of the recipient of the leave and the recipient's place of employment, if known. The commissioner shall maintain a register including the name of each donating and recipient employee, the total hours and type of leave donated, and the date the donation was made. If a recipient receives a donation of leave from more than one donor, the leave shall be distributed in the order received.

Source: 39 SDR 99, effective December 3, 2012.

General Authority: SDCL 3-6C-13, 3-6C-15, 3-6C-18.

Law Implemented: SDCL 3-6C-13, 3-6C-15, 3-6C-18.

55:09:04:18. Contagious disease -- Procedure. If the appointing authority has a reasonable belief that an employee has been exposed to a contagious disease that would endanger the health of fellow employees or the public, the appointing authority may request that the employee leave the worksite. If the employee refuses to leave, the appointing authority may require the employee to provide medical certification that the illness is not a threat to the employee or others. The appointing authority shall be responsible for the cost of the examination. If the employee refuses to submit to the examination or if the examination indicates that the employee has a contagious disease, the employee may be required to take leave. If the employee leaves work pursuant to this rule, the employee may use accrued sick or vacation leave for the purpose; otherwise the leave shall be without pay. Before returning to work the employee may be required to provide medical certification that the illness is not a threat to the employee or others.

An employee who is required to take leave under this section may appeal the decision to the commissioner if the appeal is made in writing within 14 days of the appointing authority's decision to require leave.

Source: 39 SDR 99, effective December 3, 2012.

General Authority: SDCL 3-6D-14.

Law Implemented: SDCL 3-6D-14.

55:09:04:19. Emergency furlough. An appointing authority may place any employee on furlough because of a shortage of funds or work due to an emergency. During the furlough, the employee may use accrued vacation leave; otherwise, the furlough shall be without pay. The furloughed employee shall remain eligible for state health insurance plan benefits during the furlough. An emergency furlough does not require prior notice to the employee.

At the conclusion of the emergency, the furloughed employee shall be returned to his or her job without reduction in classification, pay, or benefits.

A furloughed employee may be laid off pursuant to § 55:10:09:01.

Source: 39 SDR 99, effective December 3, 2012.

General Authority: SDCL 3-6D-14.

Law Implemented: SDCL 3-6D-14.