No. 30161: R477-7. Leave

DAR File No.: 30161
Filed: 06/29/2007, 01:16
Received by: NL

NOTICE OF REVIEW AND STATEMENT OF CONTINUATION

Concise explanation of the particular statutory provisions under which the rule is enacted and how these provisions authorize or require the rule:

This rule addresses numerous state and federal laws that require implementation through rule or clarification for administrative purposes. These include the federal Family Medical Leave Act (FMLA) and the regulations associated with it in 29 USC 2601, and the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA). Each of these acts require conformance by employers and provide for certain degrees of flexibility that must be addressed in rule. Numerous sections of the Utah Code must also be addressed in rule. These include: Title 34, Chapter 43, that provides for disaster service volunteer leave; Title 34A, Chapter 2, that provides the Workers' Compensation benefit for state employees; Section 39-3-1 that provides for time off for state employees for military purposes; Title 49, Chapter 9, that provides the Long Term Disability benefits for state employees; Section 63-13-2 that provides for official state holidays; Section 67-19-6 that provides broad rulemaking authority for the Department of Human Resource Management (DHRM) and is the legal provision for the annual leave, sick leave, jury leave, funeral leave, and furlough provisions; Section 67-19-12.9 that provides for annual leave conversion to the deferred compensation program; Section 67-19-14.5 that provides for organ donor leave; and Section 67-19-14 that establishes the legal foundation for the converted sick leave and sick leave retirement programs.

Summary of written comments received during and since the last five-year review of the rule from interested persons supporting or opposing the rule:

Almost all comments concerning this section came from the operational agencies that have to administer the rules on leave; only two were received from employees. Their concerns focused on seven areas. Annual Leave: Agency Human Resource (HR) staff had asked for clarification on two points to assist in the administration of this benefit. One was to make clear that the amount of annual leave accrued was in proportion to the number of hours worked in a pay period which was accepted and implemented. The second was to clarify how the personal preference day was to be counted in the recording of annual leave used. This suggestion was also accepted and implemented. Two suggestions were not accepted; one to set the maximum accrual rate at eight hours per pay period, the other was to not pay employees for compensatory time if they were receiving the maximum accrual rate. Sick Leave: Over the previous five-year period, DHRM has received numerous requests from agencies to amend the rule on sick leave in order to clarify eligible dependents for whom an employee may use this benefit. This issue is made more complex by the federal FMLA. DHRM accepted all of this input and either implemented the changes or modified the recommendations before implementing them. FMLA: All input for the FMLA benefit came from agency HR offices. Early in these FMLA discussions, an agency asked that spouses who worked for the state only be granted the 12-week entitlement to be shared between them. Except for this one request, all other input was concerned with the use of the calendar year or a rolling year to calculate eligibility for FMLA benefits. A calendar year approach simply gives 12 weeks of eligibility to an employee in the period of January to December. In the next calendar year, the employee is eligible for 12 weeks again. In this system, an employee could possibly be absent under FMLA entitlement for 24 weeks; the last 12 weeks of one calendar year and the first 12 weeks of the next calendar year. This possibility for abuse is the reason for many requests from agencies to adopt a rolling year. Under this approach the amount of FMLA-entitlement used in the previous 12 months is subtracted from the 12-week entitlement to calculate the amount of entitlement available to an employee. In the initial implementation of FMLA, DHRM used the calendar year. Long Term Disability (LTD): The rule for long term disability benefits had been rewritten in the previous five year period and agencies had asked DHRM to clarify what was meant by the term "reasonable accommodation". DHRM accepted or modified their recommendations and incorporated these into the rule. Leave Bank: The Utah Public Employees' Association (UPEA) asked for a rule amendment to require a report of the status of the leave bank be provided upon request from an employee. They argued that an employee needs this information in order to anticipate and plan for the use of the leave. DHRM did not accept this recommendation. The Department of Human Services (DHS) pushed for many years to include compensatory among the categories of leave that an employee can donate to a leave bank. DHRM resisted this request for many years but in 2006 agreed to accept this recommendation. Funeral Leave: As agencies administered this part, they would encounter unusual situations that would prompt a request to amend the definition of who qualifies for this benefit. DHRM typically accepted this input and with modifications made appropriate amendments. Leave Without Pay (LWOP): The Department of Health requested that DHRM amend this rule to require a written statement from health care professionals specifying when an employee would likely be able to return to work. This would help the agency anticipate the need to fill the position permanently or temporarily. DHRM did not accept this recommendation.

Reasoned justification for continuation of the rule, including reasons why the agency disagrees with comments in opposition to the rule, if any:

This rule sets parameters and limits on the granting of the various kinds of leave offered to employees. Some of the leave is defined in state code and some is defined in rule. Leave is considered a benefit and some, such as annual and holiday leave, are part of the employee compensation system and thus a property right. It is a well established legal precedent that benefits and compensation must be administered consistently or the employer is exposed to considerable liability. This rule is critical and necessary to the proper management of the state HR system as long as leave is offered to employees. Since this is part of employee compensation, cost is also an issue. This rule helps contain the cost of the leave benefit. Therefore, this rule should be continued. Potential liability and cost are the main reasons why DHRM did not accept many of the recommendations for amendments to this rule. Annual Leave: Two suggestions were not accepted. One of these suggestions came from an employee who wanted to set the maximum accrual rate at eight hours per pay period. DHRM had conducted some market research on this matter just a few years prior to this recommendation and discovered that the annual leave benefit was just slightly richer than the market provides in Utah and slightly below average for this benefit on a national comparison. The second was a request from an agency not to pay employees for compensatory time if they were receiving the maximum accrual rate. It was determined that this policy would be in violation of the Federal Fair Labor Standards Act and expose the state to serious legal liability. FMLA: The suggestion that spouses who both work for the state share the 12-week entitlement was not accepted because it is simply a violation of the FMLA. Each employee is entitled to the 12 weeks of FMLA leave. DHRM did initially accept the recommendation to shift to a rolling year from the calendar year and drafted appropriate rules. After a couple of years, agencies began to comment that the rolling year approach was more difficult to monitor and administer. Many of these agencies began to press for a return to the calendar year and DHRM consented and reverted back to the calendar year in 2006. Leave Bank: The recommendation from UPEA to provide a report of the status of a leave bank was not accepted because it was felt that this was covered adequately in the rule and that the Government Records Access Management Act dealt with this issue and therefore, there is no need to place it in DHRM rules. LWOP: DHRM did not accept the request from the Department of Health because the federal Health Insurance Portability and Accountability Act (HIPAA) would make this very difficult to administer and there was not sufficient evidence to show that this is a serious problem of abuse.

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:

Lyle Almond at the above address, by phone at 801-538-3391, by FAX at 801538-3081, or by Internet E-mail at [e-mail]

Authorized by:

Jeff Herring, Executive Director