Civil Service Rule Flexibilities

for Emergency Response Planning

The State Civil Service Commission has full rule-making authority. If the need arose, the Commission could adopt, amend, suspend, or repeal any rule on an emergency basis on short notice. Many human resource matters are governed by policies issued by the Civil Service Director. These policies could be changed as quickly as the need arose.

Teleworking

Rule 23.11 allows an appointing authority to change an employee’s work location. This rule can be used to allow or require an employee to work virtually anywhere – at home or some place other than his regular office (such as an office with a lower population density), or in a different part of the state (such as in an office/facility where staff shortages are acute). A sample telecommuting policy is attached.

Hiring and Staffing Flexibilities

Rule 23.6 allows an appointing authority to hire any applicant who meets the minimum qualifications on a restricted appointment for up to six months. The employee may be paid any amount in the pay range.

Rule 23.7 allows an appointing authority to use the Westaff contract to hire office/clerical, trades/maintenance, custodial, and food service employees to work up to 680 hours in a twelve-month period. The contract sets the pay rates.

Rule 4.1(d)1 allows the Civil Service Director to place temporary positions in the unclassified service. Unclassified positions do not have to be posted and have no minimum qualifications. An employee hired into an unclassified position may be paid any amount.

Rule 4.1(d)2 allows the State Civil Service Commission to add positions to the unclassified service. Under this rule, the Commission has established unclassified health care professional pools for all the LSU HCSD medical centers. These employees may be paid any amount. They do not earn leave or participate in the state retirement system or the group benefits program. The number of unclassified pool positions cannot exceed 10% FTE in any category, but this percent can be increased with the approval of the Civil Service Director and AFSCME No. 17. [See LSA-R.S.17:1519.16.]

Rule 23.10(a) allows an appointing authority to (temporarily or permanently) reassign an employee to any position in the department with the same pay range maximum as long as the employee meets the minimum qualifications and Civil Service’s testing and competition requirements.

Rule 23.10(b) allows an appointing authority to (temporarily or permanently) assign an employee to a different position number with the same job title.

Rule 23.12(a) allows an appointing authority to assign an employee to a different position for up to a month without changing the employee’s classification or pay. The same rule also allows an appointing authority to detail an employee to another position (with promotional pay, if applicable) for up to a year and for a longer period with the Civil Service Director’s approval. Rule 6.11 allows an appointing authority to detail an employee to a lower position without reducing the employee’s pay.

Rule 23.9 allows an employee to be assigned to a position in another department for up to one year (or for a longer period with the Civil Service Director’s approval) as long as the two departments agree to the assignment and the employee meets the minimum qualifications.

An appointing authority may change an employee’s duties so long as the remaining duties support the employee’s classification. In the past, Civil Service has allowed employees to be worked out of class for extended periods of time during emergencies.

Rule 6.5 allows the Civil Service Director to grant special hiring and retention rates within the pay range for positions where employment conditions are unusual. Pre-approved special hiring rates exist for all jobs.

Rule 6.16(a) allows the State Civil Service Commission to authorize special pay rates either within or above the pay range for positions where employment conditions are unusual.

Rule 6.16(c) allows the State Civil Service Commission to authorize special pay rates within the pay range for individuals.

Rule 6.16.2 allows an appointing authority to establish an optional pay policy under which it could increase an employee’s pay by up to 10% in a fiscal year for performing additional duties.

Work Schedules

Rule 11.1(c) allows an appointing authority to schedule an employee’s work week. Under this rule, an appointing authority could divide the workforce into shifts to reduce population density or could close an office one day a week and work the available staff 4 ten-hour days or could establish any 40-hour per week combination that meets the agency’s needs. For FLSA-exempt employees, an appointing authority could establish any 80-hour per two week combination that meets the agency’s needs.

Rule 21.1 allows an appointing authority to require an employee to work overtime. Rules 21.3 and 21.8 require an appointing authority to compensate (in cash or compensatory leave) non-exempt employees at the time and one-half rate for FLSA overtime (hours actually worked in excess of 40 in a week) and at the straight-time rate for “state” overtime (hours worked in excess of the employee’s scheduled work day or work period or on a holiday). Rules 21.3 and 21.9 allow, but do not require, an appointing authority to compensate (in cash or compensatory leave) FLSA-exempt employees at the straight-time rate for “state” overtime. With State Civil Service Commission approval, any “state” overtime can be compensated at the time and one-half rate. NOTE: An appointing authority cannot change the amount of overtime compensation retroactively – i.e., after the hours have already been worked.

Leave and Benefits

Rule 11.13 allows an employee to use sick leave when his own illness or injury prevents him from performing his duties or for his own medical, dental or optical consultation or treatment. If the absence is for one of these reasons, an appointing authority cannot deny sick leave unless the employee fails to follow department policy for obtaining approved sick leave. Rule 11.13 does not allow an employee to use sick leave to care for others who are sick or to accompany others while seeking medical consultation or treatment.

Rule 11.13.1 allows an appointing authority to place an employee on enforced sick leave when the employee asserts that he needs to be absent from work due to his own illness or injury.

Rule 11.14 allows an appointing authority to require an employee to provide medical certification that he was ill and unable to report to work. However, appointing authorities should consider that during a pandemic, healthcare resources may be overwhelmed and it may be difficult for employees to get appointments with health care providers.

Rules 11.7 (a) and 21.6(a) allow an appointing authority to grant annual and compensatory leave, respectively, to an employee for any reason including to substitute for sick leave if the employee has run out, to care for others who are ill, to accompany others while seeking medical treatment, or to care for children whose schools or day care facilities are closed.

Rule 11.34 allows an appointing authority to establish a crisis leave pool, under which a permanent employee who lacks the appropriate leave can receive 75% of his pay for up to 240 work hours from a pool of annual leave donated by employees.

Rule 11.27(a) allows an appointing authority to grant an employee leave without pay.

Rule 11.23(g) allows an appointing authority to close an office when local conditions make it impracticable for the employees to work in that office. Rule 21.8 requires non-exempt employees who work during official closures to be compensated at the straight- time rate and allows these employees to be compensated at the time and one-half rate. Rule 21.9 allows FLSA-exempt employees who work during official closures to be compensated at the straight-time rate or the time and one-half rate.

Rule 11.23(d) allows an appointing authority to grant special leave to an employee when an act of God prevents him from performing his duties.

Anticipated Questions

Q: What if an employee appears for work exhibiting flu-like symptoms?

A: Rule 11.9 allows an appointing authority to place an employee on enforced annual leave. The employee’s annual leave balance cannot be reduced below 240 hours unless the absence is for a FMLA-qualifying condition. Rule 21.6(b) allows an appointing authority to place an employee on enforced compensatory leave. These rules can be used to send an obviously ill employee home. Rule 11.13.1 allows an appointing authority to place an employee on enforced sick leave when the employee asserts the need to be absent from the work place due to illness or injury. This rule can also be used to send an employee home when he reports to work with a medical release that has so many restrictions that he cannot perform his essential functions or when the employee asserts that he cannot perform an essential function due to a medical reason. Rules 11.13.1 and 12.10 might provide additional solutions.

Q: What if an employee who is capable of working refuses to come to work for fear of being exposed?

A: An appointing authority can order/direct an employee to do anything that is job-related as long as it is not illegal, immoral, unethical, or in dereliction of duty and may discipline an employee who does not comply. However, additional optional pay might minimize the need for such drastic action.

Q: Can an employee who runs out of sick leave and cannot return to work be terminated?

A: Rule 12.6(a)1 allows the non-disciplinary removal of employees in this situation (after they have exhausted any FMLA entitlement). However, depending on the severity of the pandemic, an employee may be work-ready before an agency can hire a replacement. Therefore, an appointing authority may be better served by waiting for the employee to return to work.

Q: What about FMLA?
 
A: Ordinarily, unless complications arise, the common cold, the flu, ear aches, upset stomach, and headaches other than migraine are examples of conditions that do not meet the definition of a serious health condition and do not
qualify for FMLA leave. For FMLA, a ``serious health condition'' means an illness, injury, impairment, or physical or mental condition that involves inpatient care (i.e., an overnight stay) in a hospital, hospice, or residential medical
care facility, including any period of incapacity or any subsequent treatment in connection with such inpatient care or continuing treatment by a health care provider. Treatment does not include routine physical examinations. A regimen
of continuing treatment that includes the taking of over-the-counter medications such as aspirin, antihistamines, or salves; or bed-rest, drinking fluids, exercise, and other similar activities that can be initiated without a visit to a health care
provider, is not, by itself, sufficient to constitute a regimen of continuing treatment for purposes of FMLA leave. If the pandemic is moderate, only 1% of the people who become population are expected to require hospitalization; if the
pandemic is severe, the projection increases to 10%. Therefore, most flu cases will not be FMLA-qualifying.
 
Q: What about appointing authority?
 
A: Rule 1.4.1 allows appointing authority to be delegated. Because it is impossible during a pandemic or any other emergency to predict who will and who will not be able to work, an appointing authority should develop an order of
succession plan. A sample delegation is attached.
 
Q: If an employee is on leave without pay as a result of a pandemic, can the State pay both the employer and the employee share of retirement and benefits?
 
Retirement and benefits are not governed by Civil Service. The decision would likely be one jointly made by the Division of Administration and the legislature.