Can a Mississippi state agency keep granting paid COVID administrative leave to employees who can't come back to work?

Plain-English summary

Mississippi Commissioner of Agriculture Andy Gipson asked the Attorney General whether his department could continue granting paid administrative leave to employees who could not return to work after July 1, 2020 because of COVID-19 illness or quarantine. Earlier in the pandemic, Governor Tate Reeves had issued Executive Order 1458 authorizing agencies to grant paid leave to slow workplace transmission. On June 10, 2020, the Governor issued Executive Order 1495 rescinding that authority effective July 1.

The AG concluded that the question turns on a separate, permanent statute, not on the rescinded executive order. Section 25-3-92(2)(b) of the Mississippi Code lets either the Governor or an "appointing authority" (the agency head) grant paid administrative leave during a "man-made, technological or natural disaster or emergency." That authority did not disappear when Executive Order 1495 took effect. Whether COVID-19 illness or quarantine amounts to an "emergency" under the statute is a factual judgment the appointing authority must make before granting leave. The AG would not make that call for the agency.

The Department may grant paid leave under § 25-3-92(2)(b) if, before doing so, it determines that the illness or quarantine presents an emergency within the statute. The opinion prescribes no formal finding procedure.

Currency note

This opinion was issued in 2020. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Background and statutory framework

When Governor Reeves declared a State of Emergency on March 14, 2020, his March 16 Executive Order 1458 gave state agencies, boards, and commissions explicit authorization to grant administrative leave with pay to employees in order to prevent workplace transmission of COVID-19. The order gave the listed state entities authority to grant paid administrative leave to prevent workplace transmission.

By June 10, 2020, with offices preparing to reopen, the Governor issued Executive Order 1495 rescinding paragraph 4 of EO 1458 effective July 1, 2020 and directing all state offices to resume normal operations. The order also said leave granted after July 1 had to comply with applicable federal and state law and Mississippi State Personnel Board regulations.

The question for the AG was what the rescission left in place. The answer was § 25-3-92(2). It authorizes administrative leave with pay generally, defines it as "discretionary leave with pay, other than personal leave or major medical leave," and in subsection (b) gives both the Governor and an appointing authority the power to grant it "in the event of extreme weather conditions or in the event of a man-made, technological or natural disaster or emergency." That clause is permanent, not tied to any particular emergency declaration.

The opinion identifies the appointing authority and employee definitions in § 25-3-91. An "appointing authority" is the person, agency, or authority authorized by law to employ individuals in state government. An "employee" is anyone appointed to a state-service or nonstate-service position under § 25-9-107 and compensated full-time, provisional, temporary, or part-time. The opinion treats the Department of Agriculture and Commerce as the appointing authority for the employees at issue.

The AG read § 25-3-92(2)(b) as clear and unambiguous: the appointing authority gets to make that emergency determination. The role of the AG's office is to identify the legal framework, not to second-guess the underlying factual judgment.

Common questions

Q: Does this opinion mean every state agency had to keep paying COVID leave after July 1, 2020?
A: No. The opinion confirmed agencies could continue granting paid leave if they made the emergency determination, but it did not require them to. EO 1495 ended the across-the-board authorization. After July 1, paid leave became a discretionary, agency-specific call under § 25-3-92(2)(b).

Q: Who is the "appointing authority" for purposes of granting administrative leave?
A: Section 25-3-91(a), as quoted in the opinion, defines it as the person, agency, or authority authorized by law to employ individuals in state government. The opinion treats the Department of Agriculture and Commerce as the appointing authority for this request.

Q: Does the emergency determination need to be in writing?
A: The opinion does not specify a form. It says the appointing authority must make the factual determination before granting administrative leave.

Q: Does this opinion decide leave for employees who can work from home?
A: No. The request concerned employees unable to return to work because of COVID-19 illness or quarantine who also could not work from home. The AG answered that question subject to an emergency determination by the appointing authority.

Q: Does the statute exclude contract personnel from the definition of employee?
A: The opinion quotes § 25-3-91(c), which covers compensated people appointed to state-service or nonstate-service positions. It also quotes § 25-9-107(c), which includes contract personnel in nonstate service. The opinion does not decide eligibility for a particular contract worker.

Citations and references

Statutes:

• Miss. Code Ann. § 25-3-91 (definitions of appointing authority and employee)
• Miss. Code Ann. § 25-3-92 (administrative leave with pay)
• Miss. Code Ann. § 25-9-107 (state service and nonstate service classifications)

Executive orders:

• Executive Order 1458 (March 16, 2020), authorizing pandemic administrative leave
• Executive Order 1495 (June 10, 2020), rescinding paragraph 4 of EO 1458 effective July 1, 2020

Source

• Landing page: https://attorneygenerallynnfitch.com/divisions/opinions-and-policy/recent-opinions/
• Original PDF: https://attorneygenerallynnfitch.com/wp-content/uploads/2020/08/A.Gipson_August-10-2020-Interpretation-of-Mississippi-Code-Annotated-Section-49-17-293f.pdf

Original opinion text

August 10, 2020

The Honorable Andy Gipson
Commissioner of Agriculture and Commerce
Post Office Box 1609
Jackson, Mississippi 39215-1609

Re: Interpretation of Mississippi Code Annotated Section 49-17-29(3)(f)

Dear Commissioner Gipson:

The Office of the Attorney General is in receipt of your request for the issuance of an official opinion.

Question Presented

May the Department of Agriculture and Commerce, as an "appointing authority," pursuant to Mississippi Code Annotated Section 25-3-92, grant continued administrative leave to employees who, because of COVID-19 illness or quarantine, are unable to return to work after June 30, 2020, and are unable to work from home?

Background

On March 14, 2020, Governor Tate Reeves issued a Proclamation declaring a State of Emergency for the State of Mississippi as a result of the COVID-19 outbreak. On March 16, 2020, Governor Reeves issued Executive Order 1458, giving authority to state agencies, boards, commissions and other state entities to grant administrative leave with pay to their employees in order to prevent COVID-19 transmission within the workplace.

On June 10, 2020, Governor Reeves issued Executive Order 1495, which provides, in part:

> Effective July 1, 2020, the administrative leave provisions in paragraph 4 of Executive Order 1458 are rescinded, and the Appointing Authorities of agencies, boards, commissions and other state entities shall ensure that all offices have resumed normal operations no later than that date. All leave granted to employees after the normal resumption of business operations on or before July 1, 2020, shall be in accordance with applicable federal and state laws and Mississippi State Personnel Board regulations.

Since Executive Order 1495 was issued, the level of confirmed and suspected COVID-19 cases has consistently increased. The State of Emergency remains in place at this time.

Brief Response

Pursuant to Section 25-3-92(2), the Department of Agriculture and Commerce, as the appointing authority, may grant administrative leave with pay to its state employees in the event of extreme weather conditions or in the event of a man-made, technological or natural disaster or emergency. Whether COVID-19 constitutes an emergency, as contemplated by Section 25-3-92(2), is a factual determination that must be made by the appointing authority.

Applicable Law and Discussion

Section 25-3-92(2) states, in relevant part:

> State employees may be granted administrative leave with pay. For the purposes of this section, "administrative leave" means discretionary leave with pay, other than personal leave or major medical leave.
>
> *
>
> (b) The Governor or the appointing authority may grant administrative leave with pay to state employees on a local or statewide basis in the event of extreme weather conditions or in the event of a man-made, technological or natural disaster or emergency. Any employee on a previously approved leave during the affected period shall be eligible for such administrative leave granted by the Governor or appointing authority, and shall not be charged for his previously approved leave during the affected period.

Miss. Code Ann. § 25-3-92(2). An "appointing authority" is defined by Mississippi Code Annotated Section 25-3-91(a) as "such person, agency or authority authorized by law to employ individuals in state government, . . . ."

An "employee" is defined as "a person appointed to a position in the state service or nonstate service as defined in Section 25-9-107, for which he is compensated on a full-time permanent or provisional basis, a temporary basis, or a part-time basis." Miss. Code Ann. § 25-3-91(c). "State service" employees include all those of state departments, agencies and institutions as defined by Section 25-9-107(d), except those excluded as nonstate service employees, as defined by Section 25-9-107(c). Miss. Code Ann. § 25-9-107(b). "Nonstate service" employees include officers and officials elected by popular vote and contract personnel. Miss. Code Ann. § 25-9-107(c).

It is our opinion that the provisions of Section 25-3-92(2)(b) are clear and unambiguous. The plain language of this statute empowers an appointing authority to grant administrative leave, with pay, to state employees in the event of extreme weather conditions or in the event of a man-made, technological or natural disaster or emergency. However, whether illness and/or quarantine related to COVID-19 constitutes an emergency contemplated by Section 25-3-92(2) is a factual determination that must be made by the appointing authority prior to granting its employees administrative leave.

If this office may be of any further assistance to you, please do not hesitate to contact us.

Sincerely,

LYNN FITCH, ATTORNEY GENERAL

By: /s/ Kim P. Turner
Kim P. Turner
Assistant Attorney General