DAR File No. 32627

Human Resource Management, Administration

R477-7

Leave

NOTICE OF PROPOSED RULE

DAR File No.: 32627
Filed: 04/30/2009, 04:31
Received by: NL

RULE ANALYSIS

Purpose of the rule or reason for the change:

The amendments: clarify those ineligible for leave benefits; place restrictions on how leave shall or may not be accrued or used; removes language in holiday leave to simplify and add clarity; subsections are rearranged for better formatting; some terms are changed and conditons are restated to clarify intent; unnecessary employee requirements are removed; expired provisions are removed; awkward language is corrected; changes are made to leave without pay provisions; furlough is explained more thoroughly; employees on FMLA are prohibited from working second jobs without written consent to prevent abuse; changes are made to make workers compensation provisions and long term disability compliant with law and consistent within rule while reducing potential for abuse.

Summary of the rule or change:

Amendments in Section R477-7-1 clarify those ineligible for leave and articulate how leave shall be or may not be accrued or used. Unnecessary and confusing language is removed from Section R477-7-2. Some of this language is addressed elsewhere in rule or business practices. In Section R477-7-3, leave accrual language is placed together. In Subsection R477-7-4(2) "shall" is changed to "may". Subsection R477-7-4(6) is removed. Amendments in Section R477-7-13 restrict leave without pay to those expected to return and the maximum period is reduced to six months. Authority to grant exceptions is extended to agency heads. Additions are made to Section R477-7-14 explaining furlough. Subsection R477-7-15(13) is added to prohibit employees on Family Medical Leave Act (FMLA) from working a second job without written consent. Section R477-7-16 is rewritten to make changes to workers' compensation provisions. Section R477-7-17 is rewritten.

State statutory or constitutional authorization for this rule:

Sections 34-43-103, 49-9-203, 63G-1-301, 67-19-6, 67-19-12.9, 67-19-14, 67-19-14.2, and 67-19-14.4

Anticipated cost or savings to:

the state budget:

These changes are administrative and do not directly impact state budgets.

local governments:

This rule only affects the executive branch of state government and will have no impact on local governments.

small businesses and persons other than businesses:

This rule only affects the executive branch of state government and will have no impact on other persons.

Compliance costs for affected persons:

This rule only affects agencies of the executive branch of state government.

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

Rules published by the Department of Human Resource Management (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. This act limits the provisions of career service and these rules 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 savings on to business through fees. However, it is anticipated that the minimal costs associated with these changes will be absorbed by agency budgets and will have no effect on business. Jeff Herring, Executive Director

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

Human Resource Management
Administration
Room 2120 STATE OFFICE BLDG
450 N MAIN ST
SALT LAKE CITY UT 84114-1201

Direct questions regarding this rule to:

Michael Tribe or J.J. Acker at the above address, by phone at 801-538-3627 or 801-537-9096, by FAX at 801-538-3081 or 801-538-3081, or by Internet E-mail at miketribe@utah.gov or jacker@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:

06/15/2009

This rule may become effective on:

07/01/2009

Authorized by:

Jeff Herring, Executive Director

R477. Human Resource Management, Administration.

R477-7. Leave.

R477-7-1. Conditions of Leave.

(1) An employee in a position which[who] normally requires working[works] 40 hours or more per pay period shall be eligible for all leave benefits, unless the employee is in a position specifically designated as ineligible for leave benefits. An employee in a position which normally requires working less than 40 hours per pay period is ineligible for leave benefits.[, except those identified as career service exempt in Section R477-4-10, is eligible for leave benefits. An employee receives leave benefits in proportion to the time paid.]

([a]2) An eligible employee [who normally works 40 or more hours per pay period ]shall accrue annual, sick and holiday[sick] leave in proportion to the time paid as determined by DHRM.

([b]3) An employee shall use leave in no less than quarter hour increments.

[(2) A seasonal, temporary, or part-time employee working less than 40 hours per pay period 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, converted sick, compensatory, excess or holiday leave before accrued.

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

(6) An employee transferring from one agency to another is entitled to transfer all accrued annual, sick, and converted sick leave to the new agency.

[(7) An employee on paid leave shall continue to accrue annual, holiday and sick leave.

]([8]7) An employee separating from state service shall be paid in a lump sum for all annual leave and excess hours. An FLSA nonexempt employee shall also be paid in a lump sum for all compensatory hours.

(a)[(i)] An employee separating from state service for reasons other than retirement shall be paid in a lump sum for all converted sick leave.

([ii]b) Converted sick leave for a retiring employee shall be subject to Section R477-7-5.

([b]c) Annual, sick and holiday leave may not be used or accrued after the last day worked.[An employee may transfer this payout, minus all nondeferred taxes, to a 401(k) or 457 account up to the amount allowed by IRS regulation.]

([c]i) No leave on leave may accrue or be paid on the cashed out leave.

(ii) Only leave without pay or administrative leave may be used after the last day worked.

[(d) 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.

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

 

R477-7-2. Holiday Leave.

(1) The following dates are paid holidays for eligible employees:

(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) Veterans' Day -- November 11

(i) Thanksgiving Day -- fourth Thursday of November

(j) Christmas Day -- December 25

(k) Any other day designated as a paid holiday by the Governor.

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

(a) A full-time employee shall accrue ten hours of paid holiday leave on holidays.

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

]([3]2) If a holiday falls or is observed on a regularly scheduled day off, an eligible employee shall receive equivalent time off, not to exceed ten hours, or shall accrue excess hours.

(a) If a holiday falls on a Sunday, [and an employee is regularly scheduled to work on the following Monday, ]the following Monday shall be observed as a holiday.

(b) If a holiday falls on a Saturday, [and an employee is regularly scheduled to work on the preceding Friday, ]the preceding Friday shall be observed as a holiday.

([4]3) If an employee is required to work on an observed holiday, the employee shall receive appropriate holiday leave, or shall accrue excess hours.

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

]([a]4) A new hire shall be in a paid status on or before the holiday in order to receive holiday leave.

([b]5) A separating employee shall be in a paid status on or after the holiday in order to receive holiday leave.[

(c) 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.]

 

R477-7-3. Annual Leave.

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

(a) less than 5 years -- four hours per pay period;

(b) at least 5 and less than 10 years -- five hours per pay period;

(c) at least 10 and less than 20 years --six hours per pay period;

(d) 20 years or more -- seven hours per pay period.

(2) The maximum annual leave accrual rate shall be granted to an employee under the following conditions:

(a) an employee described in Section 67-22-2, an employee in schedule AB, and agency deputy directors and division directors appointed to career service exempt positions.

(b) an employee who is schedule A, FLSA exempt and who has a direct reporting relationship to an elected official, executive director, deputy director, commissioner or board.

(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 the leave accrual rate adjusted prospectively.

([2]3) The accrual rate for an employee rehired to a position which receives leave benefits shall be based on all [state]eligible employment in which the employee [was eligible to ]accrued leave.

([3]4) The first ten hours of annual leave used by an employee in the calendar leave year shall be the employee's personal preference day.

([4]5) Agency management shall allow every employee the option to use annual leave each year for at least the amount accrued in the year.

([5]6) Unused accrued annual leave time in excess of 320 hours shall be forfeited during year end processing for each calendar year.[

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

(a) an employee described in Section 67-22-2, an employee in schedule AB, and agency deputy directors and division directors appointed to career service exempt positions.

(b) an employee who is schedule A, FLSA exempt and who has a direct reporting relationship to an elected official, executive director, deputy director, commissioner or board.

(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 the leave accrual rate adjusted prospectively.

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

(e) Other provisions of leave shall apply under Section R477-7-1.]

 

R477-7-4. Sick Leave.

(1) An eligible employee shall accrue sick leave[ with pay in proportion to the time paid each pay period], not to exceed four hours per pay period. Sick leave shall accrue without limit.

(2) Sick leave [shall]may 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, children or parents living in the employee's home; or qualifying FMLA purposes.

[(b) FMLA purposes under Section R477-7-15.

](3) Agency management may grant exceptions for other unique medical situations.

(4) An employee shall [arrange for a telephone report to supervisors at]contact management prior to the beginning of the scheduled workday 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.

(6) 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) After filing a resignation notice, an employee must support a sick leave request with a health care provider's certificate.

](7) Unless retiring, an employee separating from state employment shall forfeit any unused sick leave without compensation.

(a) An employee rehired within one year of separation shall have forfeited sick leave reinstated as Program II sick leave.

(b) An employee who retires from state service and is rehired may not reinstate forfeited sick leave.

 

R477-7-5. Converted Sick Leave.

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)(a) Converted sick leave hours accrued prior to January 1, 2006 shall be Program I converted sick leave hours.

(b) Converted sick leave hours accrued after January 1, 2006 shall be Program II converted sick leave hours.

(2) To be eligible, an employee must have accrued a total of 144 hours or more of sick leave in Program I and Program II combined 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 sick leave hours accrued that year in excess of 64 shall be converted to Program II converted sick leave.

(b) The maximum hours of converted sick leave an employee may accrue in Program I and Program II combined is 320.

(c) If the employee has the maximum accrued in converted sick leave, these hours will be added to the annual leave account balance.

(d) In order to prevent or reverse the conversion, an employee shall:

(i) notify agency management no later than the last day of the last pay period of the calendar year in order to prevent the conversion; or

(ii) notify agency management no later than the end of February in order to reverse the conversion.

(e) Upon separation, an eligible employee may convert any unused sick leave hours accrued in the current calendar leave year in excess of 64 to converted sick leave hours in Program II.

(3) An employee may use converted sick leave as annual leave or as regular sick leave.

(4) Upon retirement, 25%[ percent] of the value of the unused converted sick leave, but not to exceed Internal Revenue Service limitations, shall be placed in the employee's 401(k) account as an employer contribution.

(a) Converted sick leave hours from Program II shall be placed in the 401(k) account before hours from Program I.

(b) The remainder shall be used for:

(i) the purchase of health care insurance and life insurance under Subsection R477-7-6(3)(c) if the converted sick leave was accrued in Program I ; or

(ii) a contribution into the employees PEHP health reimbursement account under Subsection R477-7-6(4)(b) if the converted sick leave was accrued in Program II.

 

R477-7-6. Sick Leave Retirement Benefit.

Upon retirement from active employment, an employee shall receive an unused sick leave retirement benefit under Sections 67-19-14.2 and 67-19-14.4.

(1)(a) Sick leave hours accrued prior to January 1, 2006 shall be Program I sick leave hours.

(b) Sick leave hours accrued after January 1, 2006 shall be Program II sick leave hours.

(2) An agency may offer the Unused Sick Leave Retirement Option Program I to an employee who is eligible to receive retirement benefits. However, any decision whether or not to participate in this program 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.

(3) An employee in a participating agency shall receive the following benefit provided by the Unused Sick Leave Retirement Options Program I.

(a) Continuing health and life insurance.

(i) The employing agency shall provide the same health and life insurance benefits as provided to current employees until the employee reaches the age eligible for Medicare or up to the following number of years, whichever comes first.

[(A) three years if the employee retires during calendar year 2008:

]([B]A) two years if the employee retires during calendar year 2009[:];

([C]B) one year if the employee retires during calendar year 2010; or

([D]C) zero years if the employee retires after calendar year 2010.

(ii) 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.

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

(iv) The retiree shall pay the same percentage of the premium as a current employee on the same plan. The premium amount shall be determined from the approved PEHP retiree rate and not the active employee rates.

(b) [Twenty five percent]25% of the value of the unused sick leave, but not to exceed Internal Revenue Service limitations, shall be placed in the employees 401(k) account as an employer contribution.

(i) Sick leave hours from Program II shall be placed in the 401(k) account before hours from Program I.

(ii) After the 401(k) contribution is made, an additional amount shall be deducted from the employees remaining Program I sick leave balance as follows.

(A) [288 hours if the employee retires during calendar year 2008;

(B) ]192 hours if the employee retires during calendar year 2009;

([C]B) 96 hours if the employee retires during calendar year 2010; or

([D]C) zero hours if the employee retires after calendar year 2010.

([c]D) The remaining Program I sick leave hours and converted sick leave hours from Subsection R477-7-5(4)(b)(i) shall be used to provide the following benefit.

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

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

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

(C) The employee shall pay the same percentage of the premium as a current employee on the same plan. The premium amount shall be determined from the approved PEHP retiree rate and not the active employee rates.

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

(ii) When the employee [reaches the age]becomes eligible for Medicare, [he may purchase ]a Medicare supplement policy provided by PEHP may be purchased[for himself] at the rate of eight hours of sick leave or converted sick leave for one month's premium.

(iii) [After]When the employee [reaches the age]becomes eligible for Medicare, [he may purchase]a PEHP health insurance policy, or another state approved policy[program], may be purchased for a spouse until the spouse [reaches the age]is eligible for Medicare.

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

(B) The employee shall pay the same percentage of the premium as a current employee on the same plan. The premium amount shall be determined from the approved PEHP retiree rate and not the active employee rates.

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

(v) 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 under Section 67-19-14.3.

(4) An employee shall receive the following benefit provided by the Unused Sick Leave Retirement Option Program II.

(a) [Twenty five percent]25% of the value of the unused sick leave, but not to exceed Internal Revenue Service limitations, shall be placed in the employee's 401(k) account as an employer contribution.

(b) After the 401(k) contribution the remaining sick leave hours and the converted sick leave hours from Subsection R477-7-5(4)(b)(ii) shall be deposited in the employees PEHP health reimbursement account at the greater of:

(i) the employees rate of pay at retirement, or

(ii) the average rate of pay of state employees who retired in the same retirement system in the previous calendar year.

 

R477-7-8. Jury Leave.

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

(a) appear as a witness as part of 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 under Section 67-19-31 and Title 67, Chapter 19a; or

(c) serve on a jury.

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

(3) 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.]unit where the salary is recorded.

 

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

(1) An employee shall apply in writing to agency management for approval of a leave of absence without pay.

(a) Leave without pay may be granted only when there is an expectation that the employee will return to work.

([a]b) The employee shall be entitled to previously accrued annual and sick leave.

([b]c) If unable to return to work within the time period granted, the employee shall be separated from state employment unless prohibited by state or federal law[ to include but not limited to the Americans with Disabilities Act].

(2) Nonmedical Reasons

(a) Approval may be granted for continuous leave for up to [one year]six months from the last day worked in the employee's regular position. Exceptions may be granted by the agency head.

[(b) 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.

](c) 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.]

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

(e) 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.

(3) Medical Reasons

(a) An employee who is ineligible for FMLA, Workers Compensation, or Long Term Disability may be granted block[ continuous], reduced schedule, or intermittent leave without pay for medical reasons.

(b) Medical leave without pay may be granted for no more than [one year]six months from the last day worked in the employee's regular position. Medical leave may be approved if a registered health practitioner certifies that an employee is temporarily disabled. Exceptions may be granted by the agency head.

(c) Except as otherwise provided under the Family Medical Leave Act, an employee who receives no compensation for a complete pay period shall be responsible for payment of the full premium of state provided benefits.

[(c)](d) Upon request, [A]an employee who is granted this leave shall provide a monthly return to work 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) Furlough hours shall be counted for purposes of annual, sick and holiday leave accrual[ An employee shall accrue annual and sick leave].

(b) [Full p]Payment of all [fringe]state paid benefits shall continue at the agency's expense.

(i) Benefits that have fixed costs shall be paid at the full rate regardless of how many days an employee is furloughed.

(ii) Benefits that are paid as a percentage of actual wages shall continue to be paid as percentage of actual wages if the furlough is less than one pay period. Employees who are furloughed for a full pay period shall have no percentage based benefits paid.

(c) An employee who is furloughed shall continue to pay the employee portion of all benefits. Voluntary benefits shall remain entitrely at the employee's expense.

(d) An employee shall return to the current position.

([d]e) 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) An employee is entitled to 12 weeks of family and medical leave each calendar year for any of the following reasons:

(a) birth of a child;

(b) adoption of a child;

(c) placement of a foster child;

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

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

(f) A qualifying exigency arising as a result of a spouse, son, daughter or parent being on active duty or having been notified of an impending call or order to active duty in the Armed Forces.

(2) An employee is entitled to 26 weeks of family and medical leave during a [calendar year]12 month periodto care for a spouse, son, daughter, parent or next of kin who is a recovering service member as defined by the National Defense Authorization Act.

(3) 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 provided the employee pays the employee share of the health insurance premium.

(4) An employee on FMLA leave shall receive any administrative leave given for non-performance based reasons if the leave would have been given had the employee been in a working status.

(5) To be eligible for family and medical leave, the employee must:

(a) be employed by the state for at least one year;

(b) be employed by the state for a minimum of 1250 hours worked, as determined under FMLA, during the 12 month period immediately preceding the commencement of leave.

(6) [When an employee chooses to use]To request FMLA leave, the employee or an appropriate spokesperson, shall apply in writing for the initial leave and when the reason for requesting family medical leave changes:

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

(b) as soon as [possible]practicable in emergencies.

(7) An employee may use accrued annual leave, sick leave, converted sick leave, excess hours and compensatory time prior to going into leave without pay status for the family and medical leave period.

(8) An employee who chooses to use FMLA leave shall use FMLA leave for all absences related to that qualifying event.

(9) Any period of leave without pay for an employee with a serious health condition who is determined by a health care provider to be incapable of applying for Family and Medical Leave and has no agent or designee shall be designated as FMLA leave.

(10) An employee with a serious health condition covered under workers' compensation may use FMLA leave concurrently with the workers' compensation benefit.

(11) [An employee shall be eligible to return to work under Section R477-7-13.

(a) ]If an employee has gone into leave without pay status and fails to return to work after 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 the employee returns for at least 30 calendar days.

([b]a) Exceptions to this provision include:

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

(ii) an employee whose circumstances change unexpectedly beyond the employee's control during the leave period preventing the return to work at the end of 12 weeks.

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

(13) Employees on FMLA may not work a second job without written consent of the agency head.

(14) Medical records created for purposes of FMLA and the Americans with Disabilities Act must be maintained in accordance with confidentiality requirements of Subsection R477-2-5(7).

 

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 may 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 the:

(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]six months;

(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) Workers compensation hours shall be counted for purposes of annual, sick and holiday leave accrual [An employee will continue to accrue state paid benefits and leave benefits ]while the employee is receiving a workers compensation time loss benefit for up to [one year]six months from the last day worked in the regular position.

(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.

(a) If an employee has applied for LTD and is determined eligible, and the employee elects to continue health insurance coverage, the employee shall be responsible to pay health insurance pursuant to R477-7-17(1)(b)(i).

(4) If the employee is able to return to work within [one year]six months of the last day worked in the employee's regular position, 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 [one year]six months of the last day worked in the employee's regular position, or if documentation from one or more qualified health care providers clearly establishes that the employee has a permanent condition preventing the employee from returning to the last held regular position, the employee shall be separated from state employment unless prohibited by state or federal law[ to include but not limited to the Americans with Disabilities Act].

(6) An employee who files a fraudulent workers compensation claim shall be disciplined under Rule R477-11.

(7) An employee covered under 67-19-27 who is injured in the course of employment shall be given a leave of absence with full pay during the period the employee is temporarily disabled.

(a) the employee shall be placed on administrative leave; and

(b) any compensation received from the state's workers compensation administrator shall be returned to the agency payroll clerks for deposit with the State Treasurer as a refund of expenditure in the unit number where the salary is recorded.

 

R477-7-17. Long Term Disability Leave.

(1) An employee who is determined eligible for the Long Term Disability Program (LTD) shall be granted up to [one year]six months of medical leave without pay, [if warranted by a medical condition]unless documentation from one or more qualified health care providers clearly establishes that the employee has a permanent condition preventing the employee from returning to the last-held regular position.

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

(b) An employee determined eligible for Long Term Disability benefits shall be eligible for health insurance benefits the day after the last day worked.

(i) If the employee elects to continue health insurance coverage, the health insurance premiums shall be equal to 102% of the regular active premium beginning on the day after the last day worked. The employee is responsible for 10% of the health insurance premium during the first year of disability, 20% during the second year of disability, and 30% thereafter until the employee is no longer covered by the long term disability program. If the employee has a lapse of creditable coverage for more than 62 days, pre-existing condition exclusions shall apply.

(c) 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 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]six months after the last day worked in the employee's regular position, 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 health and life insurance under 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 401(k) contribution and the purchase of health and life insurance under Subsection 67-19-14(2)(c)(i).

(2) 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 provides an administratively acceptable medical release allowing [him to]a return to work within [one year]six months of the last day worked in the employee's regular position, the agency shall place the employee in the previously held position or similar position in a comparable salary range provided 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 return to work within [one year]six months after the last day worked in the employee's regular position, the employee shall be separated from state employment unless prohibited by state or federal law[ to include but not limited to the Americans with Disabilities Act].

(4) An employee who files a fraudulent long term disability claim shall be disciplined under Rule R477-11.

 

R477-7-18. Leave Bank.

With the approval of the agency 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) An employee may not receive donated leave until all individually accrued leave is used.

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

(5) Employees on FMLA may not work a second job without written consent of the agency head.

 

R477-7-19. Policy Exceptions.

The Executive Director, DHRM, may authorize exceptions to this rule consistent with Subsection R477-2-[3]2(1).

 

KEY: holidays, leave benefits, vacations

Date of Enactment or Last Substantive Amendment: [September 22, 2008]July 1, 2009

Notice of Continuation: June 29, 2007

Authorizing, and Implemented or Interpreted Law: 34-43-103; 49-9-203; [63-13-2;]63G-1-301; 67-19-6; 67-19-12.9; 67-19-14; 67-19-14.2; 67-19-14.4