Can a Mississippi school district adopt eligibility limits and caps on donated leave for catastrophic illness?

Plain-English summary

The Jackson Public School District attorney asked whether the school board could tighten its donated-leave policy by importing rules that apply to state employees under Section 25-3-95 (the state employee leave statute). Six specific questions:

1. Require the recipient employee to have at least 12 months of full-time service and 1,250 hours in the past year?
2. Cap the donated leave received in a calendar year at 60 days?
3. Cap total paid leave used (own plus donated) at 90 days?
4. Prohibit retroactive donated leave?
5. Make leave beyond the maximum a no-pay extended leave?
6. Prohibit donating leave after notice of separation or after separation?

The AG worked through Section 37-7-307(10), the school district donated-leave statute. The statute lists what the school district may require: same-district employer, recipient employee suffering a catastrophic injury or illness or has an immediate family member with one, exhaustion of the recipient's own leave, supervisor approval, physician's statement, and a review committee. The statute does not impose minimum-service requirements, does not cap how much donated leave a recipient can receive, and does not bar donating after a notice of separation. Where Section 25-3-95 (for state employees) does have those constraints, the school district statute does not.

The AG's framework: a local school board policy that is "merely supplementary" to state law is not preempted, but a policy that prohibits what the statute allows is preempted. Citing Delphi Oil, Inc. v. Forrest Cnty Bd. of Sup'rs, 114 So. 3d 719 (Miss. 2013).

Applying that framework:

1. No. Section 37-7-307 has no minimum-service prerequisite. Imposing one would prohibit what the statute allows.
2. No. The statute caps how much a donor can give but not how much a recipient can receive.
3. No. Same reasoning.
4. The board can prohibit retroactive donated leave to the extent the policy comports with Section 96 of the constitution and Section 37-7-307. Section 96 prohibits granting extra compensation after services are rendered. The AG flagged a practical caveat: paperwork takes time, so a recipient cannot be required to have everything approved before the catastrophic event begins. Talk to the State Auditor or PERS for specific guidance.
5. Cannot impose a maximum number of donated leave days for catastrophic illness or injury (same as 2 and 3). For leave unrelated to a catastrophic event, the board may adopt no-pay extended leave rules consistent with Sections 37-7-307(2), 37-7-307(6), and other applicable laws.
6. No. Section 37-7-307(10)(b) says any school district employee may donate leave; a policy that prohibits donating after notice of separation contradicts the statute. But once the person is no longer an employee, they cannot donate, because they are not "any school district employee" anymore.

What this means for you

For school boards drafting donated-leave policies

If your existing policy looks like the state-employee donated-leave statute (Section 25-3-95), you may have unenforceable provisions. The school district statute (Section 37-7-307) is structurally different. Audit your policy against Section 37-7-307 line by line. Provisions that are stricter than the statute are likely preempted.

What your policy can do: implement the statute's procedural requirements (review committee, physician's statement, supervisor approval), define what counts as a "catastrophic injury or illness" within the statutory definition, and set clear documentation standards. Those are supplementary.

What your policy cannot do: add minimum-service prerequisites to receive donated leave, cap how much donated leave a recipient can receive, or bar donations after a notice of separation.

For school district attorneys

Walk the Delphi Oil framework when reviewing donated-leave policy: is the local rule supplementary to state law, or does it prohibit what the state statute allows? If the latter, the rule is preempted regardless of how reasonable it sounds in a board meeting.

For the retroactive-leave question, build a policy that allows good-faith retroactive recognition for the time between the onset of catastrophic illness and the completion of administrative steps. The constitution bars granting extra compensation after services are rendered, but it does not require the recipient to have all paperwork approved before the catastrophe happens. PERS and the State Auditor have guidance on the line.

For teachers and other school district employees

If you are facing a catastrophic illness or injury (yours or an immediate family member's), you may be eligible for donated leave from coworkers in the same district once you have exhausted your own leave. Section 37-7-307(10) does not require you to have worked any minimum number of months or hours to qualify. Your district's HR office handles the process: physician's statement, review committee approval, and the donated leave is added to your account.

If your district policy says you have to have worked 12 months or 1,250 hours to receive donated leave, that limit is preempted by state law. Push back through HR or your union representative.

For HR directors

Plan around the statutory minimums and the practical realities. The review committee structure under Section 37-7-307(10)(b)(v) requires the superintendent to appoint a committee for each donation. Build a standing protocol so that catastrophic events do not stall waiting for committee assembly. Document the process well; an audit later will look for the physician's statement, the committee approval, and proper allocation.

For the State Auditor and Public Employees' Retirement System (PERS)

The retroactive-leave issue is where this opinion leaves room for further guidance. Districts will be looking for a clear marker on when paperwork has to be in place to support payment. If your office can issue practical guidance on that boundary, it would help districts avoid both audit findings (for retroactive compensation) and unfair denial of leave to employees mid-catastrophe.

Common questions

What counts as "catastrophic" injury or illness?
Section 37-7-307 sets the catastrophic criteria. The statute uses a physician's-statement model: the physician documents that the illness meets the criteria. The review committee then approves on that basis. Your district policy can elaborate but cannot replace the physician's role.

Can the school board still cap how much a single donor can give?
The statute itself caps how much a donor can give. Personal leave cannot be donated below seven days remaining for the donor; sick leave cannot be donated above 50% of accumulated sick leave. Section 37-7-307(10)(b)(ii). Districts are bound by those caps but cannot tighten them either.

Does the prohibition on policy caps mean a recipient could receive an unlimited amount of donated leave?
Yes, in principle. The statute does not cap the recipient. As a practical matter, the catastrophic illness has to continue to meet the criteria for the recipient to keep using donated leave. Once the catastrophe ends, the eligibility ends.

What about leave beyond what donated leave covers, for non-catastrophic absences?
For leave unrelated to a catastrophic illness or injury, the board can adopt extended-leave-without-pay rules consistent with Sections 37-7-307(2), 37-7-307(6), and any state or federal laws (FMLA, etc.). The bar against caps applies to catastrophic-illness donated leave specifically.

What happens if I donate leave the day before I quit?
You can. As long as you are still a school district employee at the moment of donation, the statute allows it. Once you separate, you are not a school district employee anymore, so you cannot donate.

Background and statutory framework

Section 37-7-307(10)(b) is the school district donated-leave statute:

Any school district employee may donate a portion of his or her unused accumulated personal leave or sick leave to another employee of the same school district who is suffering from a catastrophic injury or illness or who has a member of his or her immediate family suffering from a catastrophic injury or illness . . . .

The subsection then sets out procedure: donor designation, donor leave caps, exhaustion of recipient's own leave, physician's statement, review committee approval, pro-rata return of unused donated leave, and a bar on donated leave being used in lieu of disability retirement.

Section 25-3-95(8) is the parallel state employee donated-leave statute. It contains additional restrictions not present in Section 37-7-307: a maximum period for using donated leave without resuming work (subsection (f)), a bar on donating after notice of separation (subsection (j)), and a 12-month/1,250-hour eligibility floor (subsection (l)). The school district donated-leave statute does not have those restrictions, and the AG concluded a school board cannot import them.

Section 37-7-301.1 gives school boards general home-rule authority to adopt orders, resolutions, or ordinances on school district affairs, property, and finances when not inconsistent with state law. The Delphi Oil framework determines preemption: a local rule that is supplementary is allowed; one that prohibits what state law allows is preempted.

Section 96 of the Mississippi Constitution prohibits the legislature from granting extra compensation, fee, or allowance after service rendered or contract made. The AG read this to support a policy bar on retroactive donated leave, but with practical accommodation for the time gap between the onset of catastrophe and completion of administrative steps.

Section 7-5-25 limits the AG's opinion authority to prospective state-law questions and excludes interpretation of federal law (such as the FLSA) and local school board policies.

Citations

• Miss. Code Ann. § 7-5-25 (scope of AG opinions)
• Miss. Code Ann. § 37-7-307 (school district leave provisions)
• Miss. Code Ann. § 37-7-307(10) (donated leave for school district employees)
• Miss. Code Ann. § 37-7-307(10)(b)(i)-(vii) (donated leave procedure)
• Miss. Code Ann. § 25-3-95 (state employee leave provisions)
• Miss. Code Ann. § 25-3-95(8)(f), (j), (l) (state-employee restrictions not in school district statute)
• Miss. Code Ann. § 37-7-301.1 (school board home rule)
• Miss. Const. art. IV, § 96 (no retroactive compensation)
• Delphi Oil, Inc. v. Forrest Cnty Bd. of Sup'rs, 114 So. 3d 719 (Miss. 2013) (preemption framework)

Source

• Landing page: https://attorneygenerallynnfitch.com/divisions/opinions-and-policy/recent-opinions/
• Original PDF: https://attorneygenerallynnfitch.com/wp-content/uploads/2025/03/D.-Turner-March-5-2025-Donated-Leave.pdf

Original opinion text

March 5, 2025

Dorian E. Turner, Esq.
Attorney, Jackson Public School District
1880 Lakeland Drive, Suite D
Jackson, Mississippi 39216

Re: Donated Leave

Dear Ms. Turner:

The Office of the Attorney General has received your request for an official opinion.

Questions Presented

1. May the Jackson Public School District Board of Trustees ("School Board") adopt a policy requiring that in order to receive donated leave, an employee must have been employed by the Jackson Public School District ("District") on a full-time basis, for at least twelve months, and must have worked at least 1,250 hours during the twelve months immediately preceding his or her leave of absence?
2. May the School Board adopt a policy requiring that the maximum amount of donated leave that an employee may receive in a calendar year is sixty days?
3. May the School Board adopt a policy requiring that the maximum amount of paid leave that an employee may use in a calendar year is ninety days (inclusive of the employee's own accrued leave and donated leave)?
4. May the School Board adopt a policy requiring that recipient employees, as defined in Mississippi Code Annotated Section 37-7-307(10)(a)(i), shall not receive donated leave on a retroactive basis?
5. May the School Board adopt a policy requiring that any leave days beyond the maximum allowed under the District's policy be considered an extended leave of absence, without pay, subject to the District's policy and superintendent approval?
6. May the School Board adopt a policy requiring that an employee may not donate leave after tendering or receiving a notice of separation, for any reason, or after separation from employment?

Brief Response

1. No. The School Board may not adopt a policy more restrictive than what is permitted by statute. The only statutory limitations on who may receive donated leave are that the recipient employee must work in the same district as the donor employee and must be suffering from a catastrophic injury or illness or have an immediate family member suffering from a catastrophic injury or illness. A school board policy requiring that in order to receive donated leave, the employee must have been employed by the District, on a full-time basis, for at least twelve months, and must have worked at least 1,250 hours during the twelve months immediately preceding his or her leave of absence would prohibit what is otherwise allowed by statute and thus would be preempted by state law.
2. The School Board may not adopt a policy requiring the maximum amount of donated leave received in a calendar year be limited to sixty days. Because the statute allows the recipient employee to receive donated leave upon the determination that the illness meets the statutory catastrophic criteria and does not provide a maximum number of days that the recipient employee may receive, it is the opinion of this office that the School Board cannot limit the maximum amount of donated leave that an employee may receive.
3. No. See response 2.
4. The School Board may adopt a policy that prohibits recipient employees from receiving donated leave on a retroactive basis as long so the policy comports with Section 96 of the Mississippi Constitution and Section 37-7-307(10).
5. The School Board may not impose a maximum number of days of donated leave that an employee can use for catastrophic illness or injury.
6. A policy prohibiting an employee from donating leave after tendering or receiving a notice of separation would contradict the statute that allows any school district employee to donate leave, and is, thus, preempted by state law. If, however, an individual is no longer employed by the district or has separated from employment, he or she would no longer be considered a school district employee and could not donate his or her leave under Section 37-7-307(10).

Applicable Law and Discussion

As an initial matter, opinions of this office are issued on prospective questions of state law pursuant to Section 7-5-25. We cannot opine on any federal law or regulation. Whether the Fair Labor Standards Act or any other federal law or regulation applies to your questions is outside the scope of this opinion. We also cannot opine on, approve, or interpret local school board policies. To the extent that a state statute and a local school board policy conflict, the state statute would prevail.

"[T]he relevant inquiry [is] whether the state statute prohibit[s] the local ordinance, or whether the local ordinance [is] an additional regulation not inconsistent with state law." Delphi Oil, Inc. v. Forrest Cnty Bd. of Sup'rs, 114 So. 3d 719, 72 (Miss. 2013) (internal citation omitted). A local ordinance, here a local school board policy, that is "merely supplementary" to the state statute is not preempted by state law. Id.

Notably, many of your questions appear to be based on Section 25-3-95(8), which provides a similar procedure for donated leave for state employees, as opposed to school district employees, but with noticeable differences. Specifically, Section 25-3-95(8)(f) provides a maximum period of time an employee may use donated leave without resuming work; Section 25-3-95(8)(j) provides that an employee cannot donate leave after tendering a notice of separation or after termination; and Section 25-3-95(8)(l) provides that an employee is only eligible to receive donated leave if he or she has been employed for at least a total of twelve months and for at least 1,250 hours during the previous twelve month period. There are no corresponding subsections in Section 37-7-307 for school district employees. We understand you are asking whether a school board may adopt policies that would, in effect, apply these additional provisions of Section 25-3-95(8), pertaining to state employees, to school districts.

Section 37-7-307(10)(b) provides as follows:

Any school district employee may donate a portion of his or her unused accumulated personal leave or sick leave to another employee of the same school district who is suffering from a catastrophic injury or illness or who has a member of his or her immediate family suffering from a catastrophic injury or illness, in accordance with the following:

(i) The employee donating the leave (the "donor employee") shall designate the employee who is to receive the leave (the "recipient employee") and the amount of unused accumulated personal leave and sick leave that is to be donated, and shall notify the school district superintendent or his designee of his or her designation.

(ii) The maximum amount of unused accumulated personal leave that an employee may donate to any other employee may not exceed a number of days that would leave the donor employee with fewer than seven (7) days of personal leave remaining, and the maximum amount of unused accumulated sick leave that an employee may donate to any other employee may not exceed fifty percent (50%) of the unused accumulated sick leave of the donor employee.

(iii) An employee must have exhausted all of his or her available leave before he or she will be eligible to receive any leave donated by another employee. Eligibility for donated leave shall be based upon review and approval by the donor employee's supervisor.

(iv) Before an employee may receive donated leave, he or she must provide the school district superintendent or his designee with a physician's statement that states that the illness meets the catastrophic criteria established under this section, the beginning date of the catastrophic injury or illness, a description of the injury or illness, and a prognosis for recovery and the anticipated date that the recipient employee will be able to return to work.

(v) Before an employee may receive donated leave, the superintendent of education of the school district shall appoint a review committee to approve or disapprove the said donations of leave, including the determination that the illness is catastrophic within the meaning of this section.

(vi) If the total amount of leave that is donated to any employee is not used by the recipient employee, the whole days of donated leave shall be returned to the donor employees on a pro rata basis, based on the ratio of the number of days of leave donated by each donor employee to the total number of days of leave donated by all donor employees.

(vii) Donated leave shall not be used in lieu of disability retirement.

With respect to your first question, according to the plain language of the statute, the only statutory limitations on who may receive donated leave are that the employee must work in the same district as the donor employee and must be suffering from a catastrophic injury or illness or have an immediate family member suffering from a catastrophic injury or illness. There is no statutory minimum amount of time the recipient employee must work for the district to qualify. To restrict this to only those full-time employees who have worked for the district for at least twelve months and for at least 1,250 hours during the twelve months immediately preceding his or her leave of absence would prohibit what the statute allows, namely by restricting who may donate leave beyond what is otherwise allowed by state law, and is, thus, preempted by state law.

Your second question asks whether the School Board can limit the maximum amount of donated leave that an employee may receive in a calendar year to sixty days. Section 37-7-307(10)(b)(ii) provides a maximum amount of personal leave that an employee may donate; however, there is no corresponding statutory maximum amount of personal leave that the recipient employee may receive. Because the statute allows for the recipient employee to receive donated leave upon the determination that the illness meets the statutory catastrophic criteria and does not provide a maximum number of days that the recipient employee may receive, it is the opinion of this office that a school board policy limiting the maximum amount of donated leave an employee may receive is not merely supplementary but, rather, contradicts what is allowed by state law. See also Miss. Code Ann. § 37-7-301.1 ("The school board of a school district may adopt any orders, resolutions or ordinances with respect to school district affairs, property and finances which are not inconsistent with the Mississippi Constitution of 1890, the Mississippi Code of 1972, or any other statute or law of the State of Mississippi."). Accordingly, the School Board cannot limit the maximum amount of donated leave that an employee may receive. For the same reasons and in response to your third question, the School Board may not limit the maximum amount of combined paid accrued leave and donated leave that an employee may use in a calendar year to ninety days. Notably, the illness or injury must continue to meet the statutory catastrophic criteria for the recipient employee to continue to use donated leave.

Your fourth question asks whether the School Board may adopt a policy prohibiting recipient employees from receiving donated leave on a retroactive basis. We understand your question to reference a potential situation where an employee has returned to work after an extended absence for which he or she had insufficient leave and receiving donated leave after the fact to apply to the preceding period of absence. Section 96 of the Mississippi Constitution provides:

The Legislature shall never grant extra compensation, fee, or allowance, to any public officer, agent, servant, or contractor, after service rendered or contract made, nor authorize payment, or part payment, of any claim under any contract not authorized by law; but appropriations may be made for expenditures in repelling invasion, preventing or suppressing insurrections.

Accordingly, the School Board may adopt a policy that prohibits recipient employees from receiving donated leave on a retroactive basis so long as the policy comports with Section 96 of the Mississippi Constitution and Section 37-7-307(10). As a practical matter, we understand that there may be a period of time between the onset of a catastrophic illness or injuries and when all of the administrative steps, such as submission of a physician's statement and approval of the donations of leave, are completed. Thus, while the School Board cannot grant retroactive compensation, a recipient employee may not be required to have all of the administrative steps completed and paperwork approved prior to the catastrophic injury or illness in order to receive donated leave. We suggest that you contact the Technical Assistance Division of the Office of the State Auditor or Public Employees' Retirement System of Mississippi for specific questions with respect to this issue.

Your fifth question asks whether the School Board may adopt a policy requiring that any leave days beyond the maximum allowed under the District's policy be considered an extended leave of absence, without pay, subject to the district's policy and superintendent approval. To the extent that your question is specific to donated leave for catastrophic illness or injury, for the same reasons as questions 2 and 3, supra, the School Board cannot impose a maximum number of days of donated leave that an employee may use. With respect to leave unrelated to a catastrophic injury or illness, the school board may adopt a policy that provides for a leave of absence without pay after a maximum allowable number of leave days a policy as long as such policy accords with Sections 37-7-307(2) and 37-7-307(6) and any other state or federal laws or regulations that may apply.

Your sixth question asks whether the School Board may adopt a policy that an employee may not donate leave after tendering or receiving a notice of separation, for any reason, or after separation from employment. Section 37-7-307(10)(b) provides that "[a]ny school district employee may donate a portion of his or her unused accumulated personal leave or sick leave . . . ." (emphasis added). Thus, a policy prohibiting an employee from donating leave after tendering or receiving a notice of separation would contradict the statute and is, thus, preempted by state law. If, however, an individual is no longer employed by the district or has separated from employment, he or she would no longer be considered a school district employee and could not donate his or her leave under Section 37-7-307(10).

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/ Beebe Garrard
Beebe Garrard
Special Assistant Attorney General