26.1 To Whom Rules Apply

Attendance and Leave Manual

Applicability (Part 26)

Section 26.1 - To Whom Rules Apply

R-1 Purpose

The purpose of this Section is to identify the classes and groups of employees subject to, or specifically exempted from, the Attendance Rules.

Eligibility for Coverage under the Attendance Rules

Only employees compensated on an annual salary, hourly, biweekly or per diem basis and holding positions in the classified service of the Executive Branch of State service are eligible for coverage under the Attendance Rules for Employees in New York State Departments and Institutions. This includes employees holding full- or part-time positions on temporary, permanent, provisional or seasonal bases in the competitive, noncompetitive, exempt or labor classes. (For purposes of this discussion employees compensated on a biweekly basis are equated to hourly employees and are subject to the same requirements and receive the same benefits as hourly employees. Therefore, all references to hourly employees should be considered as including biweekly employees.)

The Attendance Rules do not apply to employees holding positions as described above if they are:

compensated on a per diem or hourly basis and do not work at least 3 3/4 hours a day and five days a week, or do so work but have not been so employed continuously for nine months (see "Employees Who Are Compensated on a Per Diem or Hourly Basis," ~~page 3~~ [R-3] of this Section), or

See related contract provisions C-5, C-8, and in 21.1, C-7

employees of the Department of Taxation and Finance who are employed in Surrogates' offices pursuant to Section 249-dd of the Tax Law, or
employed in positions the principal duty of which is the teaching or instruction of patients or inmates, or the direct supervision of such teaching or instruction, compensated in accordance with Section 136 of the Civil Service Law and subject to agency attendance rules for institution teachers.

Although subject to the Attendance Rules, an employee may not be eligible to earn and accumulate vacation or sick leave or to be credited with personal leave; e.g., annual salaried employees who work on a part-time basis and are not required to...

R-2

...work a fixed number of hours, five days a week, and employees designated as "summer employees" or "summer replacements" in accordance with Section 26.2 of the Attendance Rules. Exemptions from specific provisions of the Rules are set forth in each Rule and in the appropriate sections of this Manual.

See related contract provisions C-1, C-5, C-8

The Attendance Rules do not apply to employees holding positions in the Legislative or Judicial branch or positions in the unclassified service; e.g., department and agency heads, the professional service of State University, State Police, Military and Naval Affairs (excluding Disaster Preparedness Commission), public authorities and other public benefit corporations such as the State University Construction Fund and the Roosevelt Island Operating Corporation.

For the purpose of determining applicability of the Attendance Rules an employee who separates from service and is

reinstated or reemployed within one year of separation,
reinstated or reemployed at any time while eligible for reinstatement from a preferred list, or
reinstated at any time by action of the Civil Service Commission or Department in accordance with Section 5.4 of the Civil Service Rules or Sections 71 and 73 of the Civil Service Law,

is treated as though he/she were on leave without pay during such separation. An employee who separates from service and is not reinstated or reemployed within one year, or reinstated or reemployed as described above, is treated as a "new" employee for the purposes of the Attendance Rules.

Employees Who Are Compensated on An Annual Salary Basis

An eligible employee who is employed on an annual salary basis is entitled to immediate coverage under the Attendance Rules. The employee is, for example, immediately entitled to the holidays provided by the Attendance Rules and is eligible for certain other types of leave, such as leave for Civil Service examinations. Provided a fixed number of hours five days a week is worked, the employee is immediately eligible for personal leave and to earn sick leave. (Reference should be made to the individual Rules and the corresponding sections of this Manual for detailed explanations of eligibility requirements for the provisions of each Rule.)

See related contract provision C-1

R-3

For information concerning coverage under the Attendance Rules for employees who move between annual salaried and per diem or hourly positions see appropriate subdivisions below.

Employees Who Are Compensated on A Per Diem Or Hourly Basis

Employees who are compensated on a per diem or hourly basis are not entitled to immediate coverage under the Attendance Rules. Such employees must:

be employed on a regularly scheduled workweek of at least 3 3/4 hours a day and five days a week, and

See related contract provisions C-5, C-8

be so employed continuously for nine months (19 biweekly pay periods) without a break in service exceeding one full biweekly pay period. Employed continuously means the employee was scheduled by management to work a qualifying schedule for 19 consecutive biweekly pay periods. Approved absences which cause an employee to drop below a qualifying schedule do not constitute a break in service so long as management has not directed the employee to work less than a qualifying schedule. An employee's service is broken when management directs an employee not to work for one full payroll period plus one day or more in the following pay period, or for single but recurring pay periods. Service is also broken when management simply reduces an employee's schedule to the point that it is no longer a qualifying schedule (for example below half time) for two or more consecutive pay periods or for single but recurring pay periods.

See related contract provisions C-6, 21.1 C-7

Upon completion of the required 19 biweekly pay periods such an employee is covered by the Attendance Rules on the first day of the following pay period (the first day of the 20th biweekly pay period). The employee's personal leave anniversary date is the first day of the 20th biweekly pay period. The employee is granted retroactive sick leave for each pay period during which he/she was in pay status for seven out of ten days. Provided the individual has completed at least 13 payroll periods in full pay status for seven out of ten days, the employee is also entitled to retroactive vacation credits for those pay periods he/she was in full pay status for seven out of ten days. The employee's vacation anniversary date is the date upon which the individual's qualifying 19 consecutive pay periods began.

R-4

Time spent on military leave counts toward the 19 pay period requirement for a per diem or hourly paid employee to be covered by the Attendance Rules.

For information concerning coverage under the Attendance Rules for employees who move between per diem or hourly positions and annual salaried positions, see the appropriate subdivisions below.

A per diem or hourly paid employee who has attained coverage under the Attendance Rules continues to be covered by the Rules although he/she may not be working at least 3 3/4 hours a day five days a week. Such an employee may not, however, be eligible to earn and accumulate vacation and sick leave credits or be credited with personal leave. (See Sections 21.2, "Vacation," 21.3, "Sick Leave," and 21.6, "Personal Leave," in this Manual.)

See related contract provisions C-5, C-8

Per diem employees who are not covered by the Attendance Rules may be granted sick leave as provided by Section 18(c) of the Labor Law and vacation as provided by Section 71 of the Public Officers Law. (See Section 21.12, "Leaves Required by Law," of the Manual.)

See Appendix E, Seasonal Employment, for information concerning per diem or hourly paid employees who are designated seasonal and who have not attained Attendance Rules coverage.

Movement From Annual Salaried Position to Per Diem or Hourly Paid Position

When an employee moves to a per diem or hourly paid position more than one year following separation from the annual salaried position:

The employee must establish eligibility for coverage under the Attendance Rules as a new per diem or hourly paid employee and is not entitled to restoration of any leave credits earned during the earlier period of employment in the annual salaried position.
When eligibility under the Attendance Rules is established (employed on a regularly scheduled workweek of at least 3 3/4 hours a day and five days a week and so employed continuously for 19 payroll periods without a break in service exceeding one full payroll period), the employee's total State service is counted in determining eligibility for sick leave at half-pay.

See related contract provisions C-5, C-6, C-8

R-5

When an employee moves to a per diem or hourly paid position less than one year, but more than one payroll period, following separation from the annual salaried position:

If the employee had completed 19 payroll periods of service in the annual salaried position, he/she retains eligibility for coverage under the Attendance Rules and is otherwise subject to the Rules as if movement were between two annual salaried positions.
If the employee had completed fewer than 19 payroll periods in the annual salaried position he/she loses eligibility for coverage under the Attendance Rules pending completion of 19 payroll periods in the per diem or hourly paid item.

See related contract provision C-6
1. Vacation and sick leave credits accumulated and unliquidated at time of separation from the annual salaried position are restored when the employee completes the 19 payroll periods, at which time he/she is also credited with vacation and sick leave for those payroll periods of service in the per diem or hourly paid item during which the individual was in full-pay status for seven of ten workdays.
2. Personal leave credits outstanding at time of separation from the annual salaried position are not restored. On the first day of the payroll period following completion of the 19 payroll periods of service in the per diem or hourly paid item the employee is credited with personal leave and this becomes the new personal leave anniversary date.
3. The employee's vacation anniversary date as of the date of separation from the annual salaried position is retained unless the break in service following separation from the annual salaried position exceeds six months, in which case such date is adjusted in accordance with Attendance Rule 21.2(d)(1). (See "Anniversary Date for Vacation Purposes," Section 21.2 of this Manual.)

R-6

NOTE: If an employee separates prior to completion of the 19 payroll periods of service in the per diem or hourly paid item, he/she is entitled to a lump sum payment for any vacation accruals for which compensation was not paid at the time of separation from the annual salaried position, such payment to be made by the current employing agency.

When an employee moves to a per diem or hourly paid position within one payroll period following separation from the annual salaried position:

If 19 payroll periods of service had been completed in the annual salaried position, the employee retains eligibility for coverage under the Attendance Rules and is otherwise subject to the Rules as if the movement was between two annual salaried positions.
If fewer than 19 payroll periods had been completed in the annual salaried position, the employee loses eligibility for coverage under the Attendance Rules pending completion of an additional number of pay periods of service in the per diem or hourly paid position which when added to the former will total 19.
1. Vacation and sick leave credits accumulated and unliquidated at time of separation from the annual salaried position are restored to the employee upon completion of the total of 19 payroll periods at which time he/she is also credited with vacation and sick leave for those payroll periods of service in the per diem or hourly paid item during which the individual was in full-pay status for seven of ten workdays. If the employee had completed fewer than 13 payroll periods in the annual salaried position, he/she should be credited with vacation for that period of service upon completion of the total of 19 payroll periods of service.
2. Personal leave credits outstanding at time of separation from the annual salaried position are not transferred or restored to the employee. On the first day following completion of the total of 19 payroll periods of service (annual salaried service plus per diem or hourly paid service), the employee is credited with personal leave and this date becomes the new personal leave anniversary date.

R-7

The employee's vacation anniversary date as of the date of separation from the annual salaried position is retained.

NOTE: An employee who separates prior to completion of the total of 19 payroll periods, is entitled to a lump sum payment for any vacation accruals for which compensation was not paid at time of separation from the annual salaried position, such payment to be made by the current employing agency.

Movement from Per Diem or Hourly Paid Position to Annual Salaried Position

When an employee moves to an annual salaried position more than one year following separation from the per diem or hourly paid position:

The employee is entitled to immediate coverage under the Attendance Rules as an annual salaried employee; but is not entitled to restoration of any leave credits earned during the earlier period of employment in the per diem or hourly paid position. Total State service is counted in determining eligibility for sick leave at half-pay.
The employee must complete 13 payroll periods of service without a break in service of more than one year, and be in full-pay status seven of the ten workdays in each of these payroll periods, to be eligible to earn vacation. The date of appointment to the annual salaried position is the anniversary date for vacation purposes.

When an employee moves to an annual salaried position less than one year, but more than one payroll period following separation from the per diem or hourly paid position:

The employee is entitled to immediate coverage under the Attendance Rules as an annual salaried employee.
If the 19 payroll periods of qualifying service in the per diem or hourly paid position have been completed, all vacation, sick leave and personal leave credits accumulated and unliquidated at the time of separation from the per diem or hourly paid position...

R-8

... are transferred, and the employee continues to earn and accrue vacation and sick leave credits beginning on the date of employment in the annual salaried position. The anniversary date for vacation purposes is the date of appointment to the per diem or hourly paid position unless the break in service following separation from the per diem or hourly paid position exceeds six months, in which case such date is adjusted in accordance with Attendance Rule 21.2(d)(1). (See "Anniversary Date for Vacation Purposes," Section 21.2 of this Manual.) The anniversary date for personal leave purposes remains the same as when the employee separated from the per diem or hourly paid position provided the movement takes place within one year of the date he/she was last credited with personal leave. (See "Personal Leave Anniversary Date," in Section 21.6 of this Manual.)

If 19 payroll periods of qualifying service have not been completed in the per diem or hourly paid position, the employee must complete the 13 required payroll periods in the annual salaried position before being eligible to earn and accrue vacation credits. The anniversary date for vacation purposes will be the date of appointment to the annual salaried position. This date is also the anniversary date for personal leave purposes.

When an employee moves to an annual salaried position within one payroll period following separation from the per diem or hourly paid position:

The employee is entitled to immediate coverage under the Attendance Rules as an annual salaried employee.
If the 19 payroll periods of qualifying service have already been completed in the per diem or hourly paid position, the vacation, sick leave and personal leave credits are transferred with the employee, and he/she continues to earn and accrue credits in the same manner as was done in the per diem or hourly paid position. The anniversary dates for vacation and personal leave purposes remain the same.

R-9

If the employee has completed more than 13, but fewer than 19 payroll periods in the per diem or hourly paid position, having been in full-pay status for seven of the ten workdays in 13 payroll periods without a break in service of more than one complete payroll period, the employee is entitled to earn and accrue vacation and sick leave credits immediately and to be credited with vacation and sick leave for the completed payroll periods in the per diem or hourly paid position. The anniversary date for vacation purposes is the date of appointment to the per diem or hourly paid position. The anniversary date for personal leave purposes is the date of appointment to the annual salaried position.
If the employee has completed fewer than 13 payroll periods in the per diem or hourly paid position the employee is not credited with vacation until completion of the number of payroll periods in the annual salaried position which, when added to the completed payroll periods in the per diem or hourly paid position, total 13 payroll periods in which the employee was in full-pay status for seven of the ten workdays. At that time he/she is credited with vacation for these 13 pay periods. The anniversary date for vacation purposes is the date of appointment to the per diem or hourly paid position. When appointed to the annual salaried position, the employee is credited with sick leave for the payroll periods in which he/she was in full-pay status for seven of ten workdays while employed in the per diem or hourly paid position. The employee is credited with personal leave when appointed to the annual salaried position and that date is the personal leave anniversary date.

Status of Employees on Educational Leave With Pay

The Attendance Rules contain no reference to education leave with pay; such leaves are authorized by enabling legislation, regulations and policies of the various agencies which have such programs.

The underlying premise in the application of the Rules to employees on education leave as discussed below is that it is reasonable that there be a relationship between the earning of leave accruals and the requirement to charge accruals.

R-10

Employees granted leave with pay to attend professional or technical schools or schools at the college or university level as full-time students in accordance with agency educational leave programs, or for professional development purposes (e.g., sabbatical leaves), who are not required to charge absences to accruals or to report to work when school is not in session should not earn leave accruals during the period of education leave.

Overtime, sick leave and vacation accruals as of the effective date of the educational leave with pay, and vacation bonus days which would have been credited during the period of leave, should be recredited to the employee upon termination of the leave and return to duty. Personal leave should also be restored unless the employee's personal leave anniversary date falls during the period of leave in which case he/she should be credited with personal leave upon return to duty but retains the original anniversary date.

Employees granted leave with pay to attend training institutes or seminars on a full-time basis for less than a school semester or on a part-time basis continue to be subject to the Attendance Rules without modification. Such employees who are required to charge all absences to leave credits and to report to work when school is not in session would appropriately earn full credits during the period of their education leave. Such leaves for training purposes should be considered as assignments to duty for purposes of applying the Attendance Rules.

An employee granted education leave with pay to attend college on a part-time basis; e.g., half-time for a semester or more while continuing to work half-time who is not required to charge absences from school to leave credits or to report to work for additional hours when school is not in session, should be credited with leave credits as a half-time employee each payroll period and would charge accruals only for absences from work in accordance with his/her half-time schedule.

Agencies are free to adopt policies that are more restrictive so long as employees are apprised in advance of the terms and conditions of the leave.

Revision History

TM-6 - January 1991

R-2, 5 thru 8 No Substantive Changes

R-1, 3, 4, 9, and 10 New or Revised Material

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