FMLA to Comply with Federal Law Expanding FMLA to Service Member Families

Adoption of Emergency Administrative Procedures

Section 24-50.3-104, C.R.S., gives the State Personnel Director (Director) the authority to promulgate rules and regulations, and § 24-4-103(6), C.R.S., allows for the adoption of emergency rules if the Director finds that immediate adoption of the rules is imperatively necessary to comply with a state or federal law or federal regulation. (Hereinafter, the term “administrative procedures” shall be used in place of the word “rules,” to distinguish rules adopted by the Director from rules adopted by the State Personnel Board.)

The State Personnel Director finds that emergency adoption of the administrative procedures shown in attachment A is imperatively necessary to comply with § 24-50-104(b), C.R.S., which requires the state personnel director to determine classes of positions for all jobs in the state personnel system. Based on a state teacher system maintenance study, the teacher class series will be eliminated effective July 1, 2008.

The State Personnel Director finds that emergency adoption of the administrative procedures shown in Attachment B is imperatively necessary to comply with federal law expanding the Family and Medical Leave Act (FMLA) to service member families. The state’s family and medical leave program required by FMLA is set up to coincide with the state’s fiscal year, which begins July 1, 2008.

These emergency administrative procedures are hereby adopted this 8th day of May, 2008, and shall become effective the 1st day of July, 2008.

______

Rich Gonzales

State Personnel Director

Attachment A

3-8. Unless authorized by the Director, the rate resulting from multiple actions effective on the same date shall be computed in the following order. The Director may withhold salary adjustments for any employee with a final overall rating of needs improvement, except as provided in 3-4.

1.  System maintenance studies.

2.  Upward, downward, or lateral movements.

3.  Base pay changes for the Teacher I class. REPEALED.

Teacher Plan

3-22. The pay grade for Teacher I is determined by the employee's academic achievement level (not proficiency or level of responsibility) as evidenced by credentials. Base pay shall not be adjusted to a lower pay grade for deficiencies in performance or discipline, except for falsification of credentials. However, base pay may be adjusted downward within the grade for deficiencies in performance or discipline. REPEALED.

3-23. For movement to and from the Teacher Plan, use the maximum of the appropriate level in the teacher class series to compare with the maximum of the non-teacher class to determine if the action is a lateral, upward or downward movement and as the basis for computing base pay. REPEALED.

Attachment B

5-5. Sick leave is provided in the event time off is needed for health reasons. This includes diagnostic and preventative examinations, treatment, and recovery. Accrued sick leave may also be used for the health needs of the employee’s child who is under the age of 18 or an adult child incapable of self care, parent, spouse, legal dependent, or a person in the household for whom the employee is the primary care giver. ACCRUED SICK LEAVE IS ALSO USED DURING FAMILY/MEDICAL LEAVE FOR AN INJURED MILITARY SERVICE MEMBER. The appointing authority may require documentation of the familial relationship. Note that this definition of family is different from family/medical and bereavement leave.

5-24. FML is granted to eligible employees for: (1) birth and care of a child and must be completed within one year of the birth; (2) placement and care of an adopted or foster child and must be completed within one year of the placement; (3) the serious health condition of an employee’s parent, child, or spouse for physical care or psychological comfort; or, (4) an employee’s own serious health condition. Definitions of a serious health condition and health care provider are in the “Definitions” section of the “Organization, Responsibilities, Ethics, and Definitions” chapter.

A. EXPANSION OF FML FOR MILITARY FAMILY LEAVE. FOR PURPOSES OF THIS LEAVE, A CHILD IS ONE WHO IS QUALIFIED FOR MILITARY SERVICE.

1. ACTIVE DUTY FAMILY LEAVE IS GRANTED TO AN ELIGIBLE EMPLOYEE WHEN A PARENT, CHILD, OR SPOUSE IS CALLED TO, OR ON ACTIVE DUTY FOR A CONTINGENCY OPERATION. A CONTINGENCY OPERATION IS A MILITARY ACTION OR OPERATION DURING A DECLARED WAR OR NATIONAL EMERGENCY, AS OPPOSED TO REGULAR ACTIVITIES SUCH AS ANNUAL MILITARY TRAINING. THE LEAVE COVERS NON-MEDICAL EVENTS DIRECTLY RELATED TO PRE-DEPLOYMENT, DEPLOYMENT, AND POST-DEPLOYMENT. MILITARY ORDERS FULFILL THE CERTIFICATION REQUIREMENT. ALL OTHER RULES RELATED TO FML APPLY.

2. MILITARY CAREGIVER LEAVE IS GRANTED TO AN ELIGIBLE EMPLOYEE TO CARE FOR A PARENT, CHILD, SPOUSE, OR NEXT OF KIN (NEAREST BLOOD RELATIVE) WHO SUFFERS A SERIOUS INJURY OR ILLNESS IN THE LINE OF DUTY WHILE ON ACTIVE DUTY IN SUPPORT OF A CONTINGENCY OPERATION. THE CONDITION MAY RENDER THE SERVICE MEMBER MEDICALLY UNFIT TO PERFORM THE DUTIES OF HIS OR HER OFFICE, GRADE, RANK, OR RATING. THE LEAVE COVERS MEDICAL TREATMENT, RECUPERATION, OR THERAPY; OUTPATIENT STATUS IN A MILITARY FACILITY OR UNIT; OR PLACEMENT ON THE TEMPORARY DISABILITY RETIREMENT LIST. ALL OTHER RULES RELATED TO FML APPLY, EXCEPT MEDICAL CERTIFICATION MUST INDICATE THAT THE CONDITION OCCURRED IN THE LINE OF DUTY WHILE ON ACTIVE DUTY. IN ADDITION, A MEDICAL CERTIFICATE ISSUED BY THE DEPARTMENT OF DEFENSE MAY BE ACCEPTED IN LIEU OF THE STATE OF COLORADO MEDICAL CERTIFICATE FORM.

5-25. To be eligible, an employee must have one year of total state service as of the date leave will begin. Such service is time on the payroll, regardless of employee type, and need not be consecutive time. If currently a temporary, the employee must also have worked 1250 hours within the 12 months prior to the date leave will begin. Time worked includes overtime hours and paid leave (excludes any type of unpaid leave). If the employee has worked full time, up to 520 hours per fiscal year will be granted, INCLUDING ACTIVE DUTY FAMILY LEAVE. If part time, the amount of leave is prorated based on the regular appointment or schedule. If a part-time employee works an irregular, variable schedule, the amount of leave is prorated based on the average number of hours worked in the 12 weeks prior to the beginning of the leave (rounded to the nearest 1/100 of an hour). Any extension of leave beyond the amount entitled to is not FML and is subject to other provisions in these chapters. Requiring an employee to use more FML than needed is not permitted.

A. MILITARY CAREGIVER LEAVE IS A ONE-TIME ENTITLEMENT OF UP TO 1040 HOURS (PRORATED FOR PART-TIME) IN A SINGLE 12-MONTH PERIOD STARTING ON THE DATE THE LEAVE BEGINS. WHILE INTERMITTENT LEAVE IS PERMITTED, IT DOES NOT EXTEND BEYOND THE 12-MONTH PERIOD. IN ADDITION, THE COMBINED TOTAL FOR MILITARY CAREGIVER AND ALL OTHER TYPES OF FML SHALL NOT EXCEED 1040 HOURS.

Emergency Administrative Procedures

Adopted May 8, 2008

Effective July 1, 2008