The issue of restoring previously unused sick leave to former employees who return in acting capacity appointments is occasionally raised. As is pointed out elsewhere, it is well understood that an employee in an acting capacity assignment cannot accrue sick or vacation time for the first 90 days, but a recurring question has been whether the acting capacity employee can utilize previously unused sick leave.
The Civil Service Rules (CSR) only permit the restoration of sick leave when a former employee is reappointed to a status-granting position. Hence, if a former employee is reemployed in an acting capacity assignment he or she is not entitled to have any previously unused sick leave restored. A former employee who is employed in an acting capacity assignment may begin to accrue sick and vacation time after 90 days and only has access to the time accrued at that time. If the employee is subsequently reappointed within the allowable time frame to a status-granting position, the unused sick leave may be restored at that time.
CSR, Chapter 11, Section 2, C (Sick leave)
1. Eligibility and Rate of Accrual
a. Sick leave shall be earned by each employee in the classified service, except temporary, emergency or project employees, at the rate of one (1) working day for each completed full month of service.
6. Special Provisions
A former state employee who is reappointed within four years of his separation from the service under the provisions of the Civil Service Law and these rules, with probationary or permanent status, may have his previously accumulated and unused balance of sick leave revived and placed to his credit upon approval of the new appointing authority.
Layoff presents an entirely different situation. Employees who are on layoff (but not recalled within 3 years from the date of layoff) are not “former” employees within the meaning of the CSR – he or she is an employee who is on layoff. Hence, previously accrued sick leave may be restored effective the date the acting capacity appointment is made. In addition, the CSR specifically permits employees who are on layoff to resume the accrual of leave credits (and other benefits) effective the date the acting appointment is made.
CSR, Chapter 8, Section 3, A, 5 (Rights)
e. Persons appointed to acting capacity assignment who are on layoff registers shall resume accrual of leave credits, eligibility for holidays and other benefits, effective the date acting capacity appointment is made.