DAR File No. 27166

Human Resource Management, Administration

R477-7

Leave

NOTICE OF PROPOSED RULE

DAR File No.: 27166
Filed: 05/14/2004, 03:05
Received by: NL

RULE ANALYSIS

Purpose of the rule or reason for the change:

This proposed amendment implements significant changes in state policy for Leave without Pay, Workers Compensation, Administrative leave, and Family and Medical leave, and make various nonsubstantive changes.

Summary of the rule or change:

In Section R477-7-1, additions are made to this section that will require management approval for the use of compensatory time, annual leave, converted sick leave, and excess leave, and clarify that payout monies transferred to a 401K or 457 account are subject to nondeferred taxes. Management is also given flexibility to grant certain types of leave after the last day worked. This is designed to assist management in negotiated separations from employment. In Section R477-7-3, the sentence removed at Subsection R477-7-3(2) is no longer necessary; the sentence removed at Subsection R477-7-3(4) is moved to the R477-7-1(5). The removal of schedule AA employees at Subsection R477-7-3(7)(a) is necessary because these employees do not qualify for leave benefits. In Section R477-7-4, new language at Subsection R477-7-4(3)(b) clarifies in rule that FMLA purposes qualify for the granting of sick leave. In Section R477-7-5, new language at Subsection R477-7-5(5)(e) places in rule a requirement that is already in code. In Section R477-7-7, the amendment to section places a limit of 40 hours on the amount of administrative leave an employee may receive as an incentive award in one year. In Section R477-7-13, this section is completely rewritten to distinguish between leave without pay for medical and nonmedical reasons. This is an important change given recent developments in the areas of Family and Medical Leave, Workers Compensation, and Long Term Disability. The policy now requires that an employee who cannot return to work at the end of the grant of leave without pay must be separated from state employment. In Section R477-7-15, amendments to this section represent a major policy shift in determining how much Family and Medical Leave an employee may receive at any point. This eligibility will now be calculated on a rolling year rather than the current calendar year. The major impact for an employee is that this shift will prevent stacking of the FMLA entitlement at the end of one calendar year with the beginning of the next calendar year. New language also requires an employee to apply in writing for the use of FMLA or follow up within certain time frames if the request is made orally. In Section R477-7-16, this section is amended to be consistent with amendments to Section R477-7-13. New language requires that the employee be separated from employment if he cannot return to work at the end of workers compensation leave. In Section R477-7-17, amendments to this section clarify in rule that an employee must pay for the employee portion of health insurance premiums for the first two months of Long Term Disability and requires that the employee be separated from state employment if he cannot return to work at the conclusion of long term disability leave.

State statutory or constitutional authorization for this rule:

Sections 49-9-203, 63-13-2, 67-19-6, 67-19-12.9, and 67-19-14.5

Anticipated cost or savings to:

the state budget:

All agencies are managing the various leave programs with their own policies and procedures. These amendments will require no changes to these practices and thus will generate no costs or savings. There are possible "opportunity" savings in two places of this new policy. One is the new Family and Medical Leave Act (FMLA) policy that will prevent employees from stacking FMLA leave. Currently with this practice, an employee can be away from work for 24 weeks (12 weeks at the end of the calendar year and 12 more weeks at the beginning of the new calendar year). Some employees will now be at their work station more frequently. The second potential source of opportunity savings are in the provisions that require an employee to be separated from employment if he cannot return to work at the end of granted Leave Without Pay, Long Term Disability or Workers Compensation. This has the potential to save an agency productive time by eliminating negotiations with an employee or eliminating possible grievances.

local governments:

By law, Section 67-19-15, this rule has no effect beyond the executive branch of state government.

other persons:

By law, Section 67-19-15, this rule has no effect beyond the executive branch of state government.

Compliance costs for affected persons:

By law, Section 67-19-15, the Department of Human Resource Management's (DHRM) rules effect only persons employed by the executive branch of state government. Rule amendments that create a cost for an employee will either impose a fee for a choice which an employee may make or will cancel a monetary benefit that an employee currently enjoys because of rule. Most of the benefits in this rule have monetary value for an employee but the amendments do not eliminate any of these benefits.

Comments by the department head on the fiscal impact the rule may have on businesses:

Rules published by DHRM have no direct effect on businesses or any entity outside state government. DHRM has authority to write rules only to the extent allowed by the Utah Personnel Management Act, Title 67, Chapter 19. Section 67-19-15 limits the provisions of career service and this rule to employees of the executive branch of state government. The only possible impact may be a very slight, indirect effect if an agency passes costs or saving on to businesses through fees. However, no such costs or saving will accrue with this amendment.

The full text of this rule may be inspected, during regular business hours, at the Division of Administrative Rules, or at:

Direct questions regarding this rule to:

Conroy Whipple at the above address, by phone at 801-538-3067, by FAX at 801-538-3081, or by Internet E-mail at cwhipple@utah.gov

Interested persons may present their views on this rule by submitting written comments to the address above no later than 5:00 p.m. on:

07/01/2004

This rule may become effective on:

07/02/2004

Authorized by:

Kim Christensen, Executive Director

RULE TEXT

R477. Human Resource Management, Administration.

R477-7. Leave.

R477-7-1. Conditions of Leave.

(1) [All employees]An employee who [regularly]normally works 40 hours or more per pay period, except those identified as ["at will"]career service exempt in R477-4-1[1]0, [are]is eligible for leave benefits. [Employees]An employee receives leave benefits in proportion to the time paid.

(a) [Eligible]An eligible employee[s] who works 40 or more hours per pay period shall accrue annual and sick leave in proportion to the time paid.

(b) [Employees]An employee shall use leave in no less than quarter hour increments.

(2) [Seasonal]A seasonal, temporary, or part-time employee[s] working less than 40 hours per pay period [are]is not eligible for paid leave.

(3) Accrual rates for sick, holiday and annual leave are determined on the Annual, Sick and Holiday Leave Accrual table available through DHRM.

(4) An employee may not use annual, sick, excess or holiday leave before [he has ]accrued[ it].

(5) An employee may not use compensatory, annual, converted sick leave used as annual, or excess leave without advance approval by management.

([5]6) [Employees]An employee transferring from one agency [of State service ]to another [are]is entitled to transfer all accrued annual, sick, and converted sick leave to the new agency.

([6]7) [Employees]An employee on paid leave shall continue to accrue annual and sick leave.

([7]8) [Employees]An employee separating [terminating ]from state service shall be paid in a lump sum for all annual leave, excess hours, and converted sick leave. [Employees who are]An FLSA non[]exempt employee shall also be paid in a lump sum for all compensatory hours. A retiring[Retiring] employee[s] shall be paid for all eligible accrued leave.

(a) [Employees]An employee may transfer this pay[]out, minus all nondeferred taxes, to [their]a 401(k) or 457 account up to the amount allowed by IRS regulation.

(b) No leave on leave may accrue or be paid on the cashed out leave.

(c) Leave cannot be used or accrued after the last day worked, except for FMLA or other medical reasons, or administrative leave specifically approved by management to be used after the last day worked.[ No leave on leave may accrue or be paid on the cashed out annual leave. Calculations of all leave paid shall be effective through the last day actually worked.]

([8]9) Contributions to benefits may not be paid on cashed out leave, other than FICA tax, except as it applies to converted sick leave in R477-7-5(2) and the Retirement Benefit in R477-7-6.

R477-7-2. Holiday Leave.

(1) The following dates are designated legal holidays:

(a) New Years Day -- January 1

(b) Dr. Martin Luther King Jr. Day -- third Monday of January

(c) Washington and Lincoln Day -- third Monday of February

(d) Memorial Day -- last Monday of May

(e) Independence Day -- July 4

(f) Pioneer Day -- July 24

(g) Labor Day -- first Monday of September

(h) Columbus Day -- second Monday of October

(i) Veterans' Day -- November 11

(j) Thanksgiving Day -- fourth Thursday of November

(k) Christmas Day -- December 25

(l) The Governor may also designate any other day a legal holiday.

(2) If a holiday falls on a Sunday, the following Monday shall be observed as a holiday. If a holiday falls on a Saturday, the preceding Friday shall be observed as a holiday.

(3) If an employee is required to work on an observed holiday, the employee shall receive appropriate holiday leave, or shall receive compensation for the excess hours worked.

(4) The following employees are eligible to receive holiday leave:

(a) [Full-time]A full-time employee[s] shall accrue eight hours of paid holiday leave on holidays.

(b) [Part-time]A part-time career service employee[s] and a partner[s] in a shared position who works 40 hours or more per pay period shall receive holiday leave in proportion to the hours [they are ]paid in the pay period in which the holiday falls.

(c) [Employees]An employee working flex[-]time, as defined in R477-8-2, shall receive a maximum of 88 hours of holiday leave in each calendar year. If the holiday falls on a regularly scheduled day off, a flex[-]time employee[s] shall receive an equivalent workday off, not to exceed eight hours, or shall receive compensation for the excess hours at the later date.

(5) [Employees]An employee receives holiday leave in proportion to the number of hours [they are ]paid during the pay period in which the holiday falls.

(a) [New]A new hire[s] shall be in a paid status on or before the holiday in order to receive holiday leave.

(b) [Terminating]A separating employee[s] shall be in a paid status on or after the holiday in order to receive holiday leave.

(c) [Employees]An employee in a leave without pay status shall receive holiday leave in proportion to the time paid in the pay period in which the holiday falls.

(6) The first eight hours of annual leave used by an employee in the calendar leave year shall be the employee's personal preference day.

R477-7-3. Annual Leave.

(1) [Employees]An employee eligible for annual leave shall accrue leave based on the following years of state service:

(a) zero through five years -- four hours per pay period;

(b) beginning of sixth year through ten years -- five hours per pay period;

(c) beginning of eleventh year through twenty years --six hours per pay period;

(d) beginning of the twenty-first year or more -- seven hours per pay period.

(2) The accrual rate for an employee[s] rehired to a position which receives leave benefits shall be based on all state employment in which the employee was eligible to accrue leave.[ Any adjustments to the accrual rate shall be prospective from July 1, 2003.]

(3) [Eligible]An eligible employee[s] may begin to use annual leave [time ]after completing the equivalent of two full pay periods of employment.

(4) Agency management shall allow every employee the option to use annual leave each year for at least the amount accrued in the year.[ However, annual leave granted shall be approved in advance by management.]

(5) An employee may elect to convert unused annual leave to a 401(k) or 457 deferred compensation program sponsored by the Utah State Retirement Board.

(a) Only hours accrued in excess of 320 hours after the end of the last pay period of the leave year are eligible for conversion.

(b) The election to convert may only be made after the end of the last pay period of the leave year as determined by the Division of Finance.

(c) The conversion shall be in whole hour increments.

(d) An employee may convert up to 20 hours or $250 in value, whichever is less.

(e) The value of the converted leave may not cause the contribution to the 401(k) or 457 account to exceed the maximum authorized by the Internal Revenue Code.

(6) After the conversion in R477-7-3(5), unused accrued annual leave time in excess of 320 hours shall be forfeited at the beginning of the first full pay period of each calendar year.

(7) The maximum annual leave accrual rate shall be granted to a certain employee[s] under the following conditions:

(a) an employee[s] on the Executive Pay Plan, as described in 67-22-2, an employee[s] in schedule[s AA and] AB, and [department]agency deputy directors and division directors appointed to career service exempt positions.

(b) an employee[s] who [have]has a direct reporting relationship[s] to an elected official[s], executive director[s], or deputy director[s] who [are]is schedule A and FLSA exempt.

(c) The maximum accrual rate shall be effective from the day the employee is appointed through the duration of the appointment. Employees in these positions on July 1, 2003, shall have [their]the leave accrual rate adjusted prospectively.

(d) [They shall]The employee may not be eligible for any transfer of leave from other jurisdictions.

(e) Other provisions of leave shall apply as defined in R477-7-[3]1.

R477-7-4. Sick Leave.

(1) [Employees]An employee shall accrue sick leave with pay at the rate of four hours each pay period. Sick leave shall accrue without limit.

(2) [Employees]An employee may begin to use accrued sick leave after completing the equivalent of at least two full pay periods of employment.

(3) Sick leave shall be granted for:

(a) preventive health and dental care, maternity[/], paternity, and adoption care, or for absence from duty because of illness, injury or temporary disability of the employee, a spouse or dependents living in the employee's home;[. Exceptions may be granted for other unique medical situations.]

(b) FMLA purposes under R477-7-15; or

(c) exceptions for other unique medical situations.

(4) [Employees]An employee shall arrange for a telephone report to supervisors at the beginning of the scheduled workday [they are]the employee is absent due to illness or injury. Management may require reports for serious illnesses or injuries.

(5) Any application for a grant of sick leave to cover an absence that exceeds four successive working days shall be supported by administratively acceptable evidence. If there is reason to believe that an employee is abusing sick leave, a supervisor may require an employee to produce evidence regardless of the number of sick hours used.

(6) Any absence for illness beyond the accrued sick leave credit may continue under the following provisions:

(a) an approved leave[-]without[-]pay status, not to exceed 12 months;

(b) an approved Family Medical Leave Status; or

(c) in an annual or other accrued leave status.

(7) After filing a [termination]resignation notice, an employee[s] must support a sick leave request[s] with a doctor's certificate.

(8) [Employees]An employee separating from [S]state service may not receive compensation for accrued unused sick leave unless [they are ]retiring.

(a) [Employees]An employee who [are]is rehired within 12 months of separation to a position that receives sick leave benefits shall have [their ]previously accrued unused sick leave credit reinstated.

(b) [Employees]An employee who retires from [S]state service and [are then]is rehired may not reinstate [their ]unused sick leave credit.

R477-7-5. Converted Sick Leave.

As an incentive to reduce sick leave abuse, an employee may convert sick leave hours to converted sick leave after the end of the last pay period of the calendar year in which the employee is eligible.

(1) To be eligible, an employee's sick leave account must have accrued a minimum total of 144 hours at the beginning of the first pay period of the calendar year.

(a) At the end of the last pay period of a calendar year in which an employee is eligible, all unused hours accrued that year in excess of 64 shall be converted to converted sick leave. [Employees]An employee who does not wish to have [their]the sick leave converted shall notify [their ]agency management no later than the end of February. The converted sick leave hours will then be returned to the sick leave account.

(b) Upon [termination]separation, an eligible employee may convert any unused hours accrued in the current calendar leave year in excess of 64 to converted sick. In the event the employee has the maximum accrued in converted sick these hours will be added to [his]the annual leave account balance.

(c) The maximum hours of converted sick leave an employee may accrue is 320.

(2) Converted sick leave may be used as annual leave, regular sick leave, or as paid[-up] health and life insurance at the time of retirement for employees under age 65. If an employee is 65 years of age or older at the time of retirement, converted sick leave may be used to purchase a Medicare supplement.

(a) Payment for health and life insurance is the responsibility of the employing agency.

(b) The purchase rate shall be eight hours of converted sick leave for the state paid portion of the premium for one month's coverage for health and life insurance.

(c) [The participation rate on premium payments for health and life insurance shall be the same as the participation rate for current employees on the same plan]The retiree shall pay the same percentage of the premium as a current employee on the same plan.

R477-7-6. Sick Leave Retirement Benefit.

[Employees]Upon retirement from active employment, an employee may be offered a retirement benefit program, according to Section 67-19-14(2).

(1) This program is optional for each [department]agency. However, any decision whether or not to participate shall be agency[-]wide and shall be consistent through an entire fiscal year.

(a) If an agency decides to withdraw for the next fiscal year after initially deciding to participate, the agency must notify all employees at least 60 days before the new fiscal year begins.

(b) The employing [department]agency shall provide the same health and life insurance benefits as provided to current employees for five years or until the employee reaches the age eligible for Medicare, whichever comes first.

(i) Health insurance provided shall be the same coverage carried by the employee at the time of retirement; i.e., family, two-party, or single. If the employee has no health coverage in place upon retirement, none shall be offered or provided.

(ii) Life insurance provided shall be the minimum authorized coverage provided for all state employees at the time the employee retires.

(iii) The retiree [participation rate on premium payments shall be the same as the employee participation rate for]shall pay the same percentage of the premium as a current employee[s] on the same plan.

(2) Employee participation in any part of this incentive program shall be voluntary, but the decision to participate shall be made at retirement.

(3) An employee may elect to receive a cash payment, or transfer to an approved 401(k) or 457[(k)] account, up to 25 percent of his accrued unused sick leave at his current rate of pay.

(4) After the election for cash out is made, 480 hours shall be deducted from the employees remaining sick leave balance.

(5) The employee may use remaining sick leave hours to participate in the following incentive program.

(a) The retiree may purchase PEHP health insurance, or a state approved program, and life insurance coverage for himself until he reaches the age eligible for Medicare.

(i) Health insurance shall be the same coverage carried by the employee at the time of retirement; i.e., family, two-party, or single.

(ii) Life insurance provided shall be the minimum authorized coverage provided for [all ]state employees at the time the employee retires.

(iii) The purchase rate shall be eight hours of sick leave or converted sick leave for the state paid portion of one month's premium.

(iv) The employee shall pay the same percentage of the premium as a[participation rate on premium payments shall be the same as the employee participation rate for] current employee[s] on the same plan.

(b) After the employee reaches the age eligible for Medicare, he may purchase PEHP Preferred Care health insurance, or a state approved cost equivalent program for a spouse until the spouse reaches the age eligible for Medicare.

(i) The purchase rate shall be eight hours of sick leave or converted sick leave for one month's premium.

(c) When the employee reaches the age eligible for Medicare, he may purchase a high option Medicare supplement policy for himself at the rate of eight hours of sick leave or converted sick leave for one month's premium.

(d) When the spouse reaches the age eligible for Medicare, the employee may purchase a high option Medicare supplement policy for the spouse at the rate of eight hours of sick leave or converted sick leave for one month's premium.

(e) In the event an employee is killed in the line of duty, the employee's spouse shall be eligible to use the employee's available sick leave hours for the purchase of health and dental insurance as provided in R477-7-6.

R477-7-7. Administrative Leave.

(1) Administrative leave may be granted consistent with agency policy for the following reasons:

(a) administrative;

(i) governor approved holiday leave;

(ii) during management decisions that benefit the organization;

(iii) when no work is available due to unavoidable conditions or influences; or

(iv) other reasons consistent with agency policy.

(b) protected;

(i) suspension with pay pending hearing results;

(ii) personal decision making prior to discipline;

(iii) removal from adverse or hostile work environment situations;

(iv) fitness for duty or employee assistance; or

(v) other reasons consistent with agency policy.

(c) reward in lieu of cash;

(i) the agency head or designee may grant paid administrative leave up to eight hours per occurrence;

(ii) administrative leave in excess of eight hours may be granted with written approval by the agency head.

(iii) administrative leave given as a reward in lieu of cash may not exceed 40 hours in a fiscal year.

(d) student educational assistance[;].

(2) With the exception of administrative leave used as a reward, as described in R477-7(1)(c), the agency head or designee may grant paid administrative leave up to ten consecutive working days per occurrence. Administrative leave in excess of ten consecutive working days per occurrence may be granted by the agency head.

(3) Administrative leave taken must be documented in the employee's leave record.

R477-7-8. Jury Leave.

(1) [Employees]An employee [are]is entitled to a leave of absence with full pay when, in obedience to a subpoena or direction by proper authority, [they are]the employee is required to:

(a) appear as a witness as part of [their]the employee's position for the federal government, the State of Utah, or a political subdivision of the state; or

(b) serve as a witness in a grievance hearing as provided in Section 67-19-31 and Title 67, Chapter 19a; or

(c) serve on a jury.

(2) [Employees]An employee who [are]is absent in order to litigate in matters unrelated to [their ]state employment shall use eligible accrued leave or leave without pay.

(3) [Employees]An employee choosing to use paid leave while on jury duty shall be entitled to keep juror's fees; otherwise, juror's fees received shall be returned to agency payroll clerks for deposit with the State Treasurer. The fees shall be deposited as a refund of expenditure in the low org. where the salary is recorded.

R477-7-9. Funeral Leave.

[Employees]An employee may receive a maximum of [twenty-four]24 hours funeral leave per occurrence with pay, at management's discretion, to attend the funeral of a member of the employee's immediate family. Funeral leave may not be charged against accrued sick or annual leave.

(1) The "immediate family" means: wife, husband, children, daughter-in-law, son-in-law, parents, grandchildren, mother-in-law, father-in-law, brother-in-law, sister-in-law, grandparents, step-grandparents, spouse's grandparents, spouse's step-grandparents, step-children, step-parents, brothers and sisters, and step-brothers and step-sisters of the employee.

R477-7-10. Military Leave.

One day of military leave is the equivalent to the employee's normal workday but not to exceed eight hours.

(1) [Employees]An employee who [are]is a member[s] of the National Guard or Military Reserves [are]is entitled to military leave not to exceed 15 days per calendar year without loss of pay, annual leave or sick leave. [Employees]An employee shall be on official military orders and may not claim salary for non[-]working days spent in military training or for traditional weekend training.

(2) After the first 15 days, officers and employees of the state shall be granted military leave without pay for the period of active service or duty, including travel time, Section 39-3-1.

(a) [Employees]An employee may use accrued leave while on active duty.

(3) [Employees]An employee shall give notice of active military service as soon as [they are ]notified.

(4) Upon [termination]separation from active military service under honorable conditions, an employee[s] shall be placed in [their]the original position or one of like seniority, status and pay. The cumulative length of time allowed for reemployment may not exceed five years. [Employees]An employee [are]is entitled to reemployment rights and benefits including increased pension and leave accrual. [Persons]An employee entering military leave may elect to have payment for annual leave deferred. In order to be reemployed, an employee[s] shall present evidence of military service and leave without pay status, and:

(a) for service less than 31 days, return at the beginning of the next regularly scheduled work period on the first full day after release from service, taking into account safe travel home plus an eight hour rest period;

(b) for service of more than 31 days but less than 181 days, submit an application for reemployment within 14 days of release from service; or

(c) for service of more than 180 days, submit an application for reemployment within 90 days of release from service.

R477-7-11. Disaster Relief Volunteer Leave.

(1) An employee may be granted an aggregate of 15 working days or 120 work hours in any 12 month period to participate in disaster relief services for the American Red Cross. To request this leave an employee must be a certified disaster relief volunteer and file a written request with the employing agency. The request shall include:

(a) a copy of a written request for the employee's services from an official of the American Red Cross;

(b) the anticipated duration of the absence;

(c) the type of service the employee is to provide for the American Red Cross; and

(d) the nature and location of the disaster where the employee's services will be provided.

R477-7-12. Organ Donor Leave.

[Employees]An employee who serves as a bone marrow or human organ donor[s] shall be granted paid leave for the donation and recovery.

(1) [Employees]An employee who donates bone marrow shall be granted up to seven days of paid leave.

(2) [Employees]An employee who donates a human organ shall be granted up to 30 days of paid leave.

R477-7-13. Leave of Absence Without Pay.

[Employees may be granted continuous leave of absence without pay for up to 12 months. Employees shall apply in writing to agency management for approval. If absence is due to FMLA, workers compensation or long-term disability, R477-7-15, R477-7-16 or R477-7-17 applies.

(1) Medical leave without pay may be granted for no more than 12 months. Medical leave may be approved if a registered health practitioner certifies that an employee is temporarily disabled.

(2) Agency management may approve leave without pay for employees even though annual or sick leave balances exist. Employees may take up to ten consecutive working days of leave without pay without affecting the leave accrual rate.

(a) Employees who receive no compensation for a complete pay period shall be responsible for payment of state provided benefit premiums, unless they are covered by the provisions under the federal Family and Medical Leave Act, in R477-7-15.

(3) Employees who return to work on or before the expiration of leave without pay, shall be placed in a position with comparable pay and seniority to their previously held position, provided the same or comparable level of duties can be performed with or without reasonable accommodation. The employee shall also be entitled to previously accrued annual and sick leave.

(4) Leave without pay for non-disability reasons may be granted only when there is an expectation that the employee will return to work.

(5) Health insurance benefits shall continue for employees on leave without pay because of work related injuries or illnesses. Except as provided under the family and medical leave provisions, employees on leave without pay must personally continue the premiums to receive health insurance benefits.]An employee shall apply in writing to agency management for approval of a leave of absence without pay. Approval may be granted for continuous leave for up to 12 months from the last day worked. If unable to return to work within the time period granted, the employee shall be separated from state employment.

(1) Nonmedical Reasons

(a) Leave without pay may be granted only when there is an expectation that the employee will return to work. This section does not apply for military leave.

(b) Agency management may approve leave without pay for an employee even though annual or sick leave balances exist. An employee may take up to ten consecutive working days of leave without pay without affecting the leave accrual rate.

(c) An employee who receives no compensation for a complete pay period shall be responsible for payment of the full premium of state provided benefits.

(d) An employee who returns to work on or before the expiration of leave without pay shall be placed in a position with comparable pay and seniority to the previously held position. The employee shall also be entitled to previously accrued annual and sick leave.

(2) Medical Reasons

(a) An employee who is ineligible for FMLA, Workers Compensation, or Long Term Disability may be granted leave without pay for medical reasons.

(b) Medical leave without pay may be granted for no more than 12 months. Medical leave may be approved if a registered health practitioner certifies that an employee is temporarily disabled.

(c) An employee who is granted this leave shall provide a monthly status update to the employee's supervisor.

R477-7-14. Furlough.

(1) Agency management may furlough employees as a means of saving salary costs in lieu of or in addition to a reduction in force. Furlough plans are subject to the approval of the agency head and the following conditions:

(a) [Employees]An employee shall accrue annual and sick leave.

(b) Full payment of all fringe benefits shall continue at the agency's expense.

(c) [Employees]An employee shall return to [their]the current position[s].

(d) Furlough is applied equitably; e.g., to all persons in a given class, all program staff, or all staff in an organization.

R477-7-15. Family and Medical Leave.

(1) This section, R477-7-15(1), is effective until January 1, 2005. This rule conforms to the federal Family and Medical Leave Act, 29 USC 2601. Employees eligible under this rule shall continue to receive medical insurance benefits provided the employee was entitled to medical insurance benefits prior to the commencement of FMLA leave.

(a) Agency management shall authorize up to 12 weeks of leave each calendar year to employees for any of the following reasons:

(i) birth of a child;

(ii) adoption of a child;

(iii) placement of a foster child;

(iv) a serious health condition of the employee; or

(v) care of a spouse, dependent child, or parent with a serious medical condition.

This paragraph and section, R477-7-15(1), are effective on January 1, 2005. This rule parallels the federal Family and Medical Leave Act, 29 USC 2601. Family and medical leave (FMLA) may be authorized when appropriate. This provision does not authorize FMLA leave in excess of that provided for by federal statutes and regulations.

(1) An employee is entitled to 12 weeks of family and medical leave in a 12 month period.

(a) The amount of FMLA leave available to an employee shall be 12 weeks minus any FMLA leave used in the immediately preceding 12 month period.

(b) Agency management shall approve FMLA leave for any of the following reasons:

(i) birth of a child;

(ii) adoption of a child;

(iii) placement of a foster child;

(iv) a serious health condition of the employee; or

(v) care of a spouse, dependent child, or parent with a serious medical condition.

(c) An employee on FMLA leave shall continue to receive the same health insurance benefits the employee was receiving prior to the commencement of FMLA leave.

(2) To be eligible for [the 12 weeks of ]family medical leave, the employee must[ be]:

(a) be employed by the state for at least 12 months;[ and]

(b) be employed by the state for a minimum of 1250 compensable work hours as determined under FMLA during the 12 month period immediately preceding the commencement of leave[.]; and

(c) apply in writing to the agency when the reason for requesting family medical leave changes in the course of a year.

(3) [Employees]An employee, or an appropriate spokesperson, shall submit a leave request:

(a) thirty days in advance for foreseeable needs; or

(b) as soon as possible in emergencies.

(4) Agency Responsibility

(a) Agency management shall be responsible for:

(i) documenting employee leave requests which qualify as FMLA leave; and

(ii) designating any qualifying leave taken by an employee[s] as FMLA leave. All leave requests which qualify as FMLA leave shall be designated as such and shall be subject to all provisions of this rule; and

(iii) notifying an employee[s] orally or in writing of the designation within two business days, or as soon as a determination can be made that the leave request qualifies as FMLA leave if the agency does not initially have sufficient information to make a determination.

(A) An oral notice must be confirmed in writing no later than the following payday.

(B) If the payday is less than one week after the oral notice, then written notice must be issued by the subsequent payday.

(b) Written notification to an employee[s] shall include the following information:

(i) that the leave will be counted against the employee's annual FMLA entitlement;

(ii) any requirements for the employee to furnish medical certification of a serious health condition and the consequences of failing to do so;

(iii) a statement explaining [that]which types of leave the employee will be required to exhaust [unused annual, converted, and sick leave, ]before going into a LWOP status;

(iv) [any]the requirement for the employee to make [any ]premium payments to maintain health benefits, the arrangements for making such payments, and the possible consequences of failure to make such payments on a timely basis;

(v) the employee's potential liability for payment of health insurance premiums paid by the employer during the employee's unpaid FMLA leave if the employee fails to return to work after taking FMLA leave;

(vi) any requirement for the employee to present a fitness for duty certificate to be restored to employment; and

(vii) the employee's rights to restoration to the same or an equivalent job upon return from leave.

(c) Agencies may designate FMLA leave after the fact only:

(i) if the reason for leave was previously unknown, provided the reason for leave is made known within two business days after the employee's return to work; or

(ii) the agency has preliminarily designated the leave as FMLA leave and is awaiting medical certification.

(d) Agencies shall allow the employee[s] at least 15 calendar days to provide medical certification if FMLA leave is not foreseeable.

(e) Agencies shall inform Group Insurance that an employee is approved for FMLA leave.

(5) An employee shall be required to use accrued annual and converted sick leave and excess hours prior to the use of leave without pay for the family and medical leave period. [Employees]An employee shall be required to use accrued sick leave only in situations considered eligible under R477-7-4(3). [Employees]An employee who takes family and medical leave in a leave without pay status must comply with R477-7-13.

(a) [Employees]An employee may choose to use compensatory time for an FMLA reason. Any period of leave paid from the employee's accrued compensatory time account may not be counted against the employee's FMLA leave entitlement.

(6) [Employees]An employee shall be eligible to return to work under R477-7-13.

(a) If an employee has gone into leave without pay status and fails to return to work after [unpaid ]FMLA leave has ended, an agency may recover, with certain exceptions, the health insurance premiums paid by the agency on the employee's behalf. An employee is considered to have returned to work if [he or she]the employee returns for at least 30 calendar days.

(b) Exceptions to this provision include:

(i) an FLSA exempt and schedule AB, AD and AR employee[s] who [have]has been denied restoration upon expiration of their leave time;

(ii) an employee[s] whose circumstances change unexpectedly beyond [their]the employee's control during the leave period preventing [and he or she cannot]the return to work at the end of 12 weeks.[

(7) For maternity and child placement leave, time must be taken in no less than eight hour increments.]

([8]7) Leave taken for purposes of childbirth, adoption, placement for adoption or foster care shall not be taken intermittently or on a reduced leave schedule unless the employee and employer mutually agree.

([9]8) Leave required for certified medical reasons may be taken intermittently.

([10]9) Leave taken for a serious health condition covered under workers' compensation may be counted towards an employee's FMLA entitlement. Use of accrued paid leave shall not be required for FMLA leave at the same time the employee is collecting a workers' compensation benefit.

([11]10) Medical records created for purposes of FMLA and the Americans with Disabilities Act must be maintained in accordance with confidentiality requirements of R477-2-5(6).

R477-7-16. Workers Compensation Leave.

(1) An employee may use accrued leave benefits to supplement the workers compensation benefit.

(a) The combination of leave benefit and workers compensation benefit shall not exceed the employee's gross salary. Leave benefits shall only be used in increments of one hour in making up any difference.

(b) The use of accrued leave to supplement the worker compensation benefit shall be terminated if:

(i) the employee is declared medically stable by licensed medical authority;

(ii) the workers compensation fund terminates the benefit;

(iii) the employee has been absent from work for one year;

(iv) the employee refuses to accept appropriate employment offered by the state; or

(v) the employee receives Long Term Disability or Social Security Disability benefits.

(c) The employee shall refund to the state any accrued leave paid which exceeds the employee's gross salary for the period for which the benefit was received.

(2) [Employees]An employee will continue to accrue state paid benefits and leave benefits while receiving a workers compensation time loss benefit for up to one year.

(3) Health insurance benefits shall continue for an employee on leave without pay while receiving workers compensation benefits. The employee is responsible for the payment of the employee share of the premium.

(4) If the employee is unable to return to work within one year of the last day worked, the agency shall place the employee in the previously held position or a similar position at a comparable salary range.

(5) If the employee is unable to return to work within 12 months, the employee shall be separate from state employment.

([3]6) [Employees]An employee who files a fraudulent workers compensation claim[s] shall be disciplined according to the provisions of R477-11.

R477-7-17. Long Term Disability Leave.

(1) [Employees]An employee who [are]is determined eligible for the Long Term Disability Program (LTD) shall be granted up to one year of medical leave, if warranted by a medical condition.

(a) The [one year ]medical leave begins on the last day the employee worked. LTD requires a three month waiting period before benefit payments begin. During this period, an employee[s] may use available sick and converted sick leave. When those balances are exhausted, an employee[s] may use other leave balances available.

(b) [Employees]An employee determined eligible for Long Term Disability benefits, after the three month waiting period, shall be eligible for health insurance benefits beginning two months after the last day worked. The employee is responsible for the employee share of the premium during the two months following the last day worked. The health insurance benefit shall continue without premium payment for up to 22 months or until [they are eligible]eligibility for Medicare or Medicaid, whichever occurs first. After 22 months, the health insurance may be continued with premiums being paid in accordance with LTD policy and practice.

Upon approval of the LTD claim:

(i) Biweekly salary payments that the employee may be receiving shall cease. If the employee received any salary payments after the three month waiting period, the LTD benefit shall be offset by the amount received.

(ii) The employee shall be paid for remaining balances of annual leave, compensatory hours and excess hours in a lump sum payment. This payment shall be made at the time LTD is approved unless the employee requests in writing to receive it upon [termination]separation from state employment. No reduction of the LTD payment shall be made to offset this payment. If the employee returns to work prior to one year after the last day worked, the employee has the option of buying back annual leave at the current hourly rate.

(iii) An employee with a converted sick leave balance at the time of LTD eligibility shall have the option to receive a lump sum payout of all or part of the balance or to keep the balance intact to pay for health and life insurance upon retirement. The payout shall be at the rate at the time of LTD eligibility.

(iv) An employee who retires from state government directly from LTD may be eligible for up to five years health and life insurance as provided in Subsection 67-19-14(2)(b)(ii).

(v) Unused sick leave balance shall remain intact until the employee retires. At retirement, the employee shall be eligible for the cash payout and the purchase of health and life insurance as provided in Subsection 67-19-14(2)(c)(i).

(2) [Employees]An employee shall continue to accrue service credit for retirement purposes while receiving long term disability benefits.

(3) Conditions for return from leave without pay shall include:

(a) If an employee is able to return to work within one year of the last day worked, the agency shall place the employee in [his]the previously held position or similar position in a comparable salary range provided [they are]the employee is able to perform the essential functions of the job with or without a reasonable accommodation.

(b) If an employee is unable to perform the essential functions of the position because of a permanent disability that qualifies as a disability under the ADA, the agency shall place the employee in the best available, vacant position for which [he is]the employee qualifies[d] and is able to perform the essential functions of the position with or without reasonable accommodation.

(c) [The agency head may extend the medical leave beyond one year if the employee's illness or injury results in disability prohibiting the employee from performing the essential functions of the position, as defined by ADA]If an employee is unable to return to work within one year after the last day worked, the employee shall be separated from state employment.

(4) [Employees]An employee who files a fraudulent long term disability claim[s] shall be disciplined according to the provisions of R477-11.

R477-7-18. Leave Bank.

With the approval of the agency [director]head, agencies may establish a leave bank program as follows:

(1) Only annual leave, excess hours, compensatory time earned by an FLSA nonexempt employee, and converted sick leave hours may be donated to a leave bank.

(2) Only employees of agencies with approved leave bank programs may donate leave hours to another agency with a leave bank program, if mutually agreed on by both agencies.

(3) [Employees]An employee [shall]may not receive donated leave until [they use ]all [of their ]individually accrued leave is used.

(4) Leave shall be accrued if an employee is on sick leave donated from an approved leave bank program.

R477-7-19. Policy Exceptions.

The Executive Director, DHRM, may authorize exceptions to the provisions of this rule consistent with R477-2-3(1).

KEY: holidays, leave benefits, vacations

[July 1, 2003]2004

49-9-203

63-13-2

67-19-6

67-19-12.9

67-19-14.5

ADDITIONAL INFORMATION

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For questions regarding the content or application of this rule, please contact Conroy Whipple at the above address, by phone at 801-538-3067, by FAX at 801-538-3081, or by Internet E-mail at cwhipple@utah.gov

For questions about the rulemaking process, please contact the Division of Administrative Rules (801-538-3764). Please Note: The Division of Administrative Rules is NOT able to answer questions about the content or application of these administrative rules.