TITLE 1 GENERAL
GOVERNMENT ADMINISTRATION
CHAPTER 7 STATE PERSONNEL ADMINISTRATION
PART 7 ABSENCE
AND LEAVE
1.7.7.1 ISSUING AGENCY:
State Personnel Board.
[1.7.7.1 NMAC - Rp,
1 NMAC 7.7.1, 07/07/01]
1.7.7.2 SCOPE: All state
agencies in the classified service.
[1.7.7.2 NMAC - Rp,
1 NMAC 7.7.2, 07/07/01]
1.7.7.3 STATUTORY AUTHORITY: NMSA 1978, Section 10-9-13(G); Section
11: NMSA 1978, Section 10-7-10; Section
13: 29 U.S.C. Sections 201 and 2601 et
seq.: Section 15: NMSA 1978, Section 1-12-42; Section 17: NMSA 1978, Sections 20-4-7, 20-5-14 and
20-7-5 and 38 U.S.C. Section 2024.
[1.7.7.3 NMAC - Rp,
1 NMAC 7.7.3, 07/07/01; A, 11/14/02]
1.7.7.4 DURATION: Permanent.
[1.7.7.4 NMAC - Rp,
1 NMAC 7.7.4, 07/07/01]
1.7.7.5 EFFECTIVE
DATE: 07/07/01 unless a
later date is cited at the end of a section.
[1.7.7.5 NMAC - Rp,
1 NMAC 7.7.5, 07/07/01]
1.7.7.6 OBJECTIVE: The objective of Part 7 of Chapter 7: is to
provide for the accrual and administration of leave available to employees.
[1.7.7.6 NMAC - Rp,
1 NMAC 7.7.6, 07/07/01]
1.7.7.7 DEFINITIONS: [RESERVED]
[1.7.7.7 NMAC - Rp,
1 NMAC 7.7.7, 07/07/01]
1.7.7.8 ANNUAL LEAVE:
A. Employees,
except those on full-time educational leave with pay, absence without leave,
leave without pay, unpaid FMLA leave, or suspension without pay shall accrue
annual leave at the rate of:
(1) 3.08 hours per pay period if less than three years of cumulative
employment,
(2) 3.69 hours per pay period if three years or more but less than seven
years of cumulative employment,
(3) 4.61 hours per pay period if seven years or more but less than eleven
years of cumulative employment,
(4) 5.54 hours per pay period if eleven years or more but less than fifteen
years of cumulative employment; or
(5) 6.15 hours per pay period if fifteen years
or more of cumulative employment.
B. For
purposes of Subsection A of 1.7.7.8. NMAC, any employment in the
classified or exempt service and judicial or legislative branches of New Mexico
state government shall be counted in determining years
of cumulative employment in the classified service.
C. For
purposes of Subsection A of 1.7.7.8. NMAC, employment in programs
transferred into the classified service by legislation or executive order shall
count as cumulative employment.
D. Employees
employed on a part-time basis and employees on furlough who work at least eight
hours in a pay period shall accrue annual leave on a prorated basis.
E. A
maximum of 240 hours of annual leave shall be carried forward after the last
pay period beginning in December.
F. Annual
leave shall not be used before it is accrued and must be authorized before it
is taken in accordance with agency policy.
G. Employees
separating from the classified service, except by a reduction in force, shall
be paid for accrued annual leave, as of the date of separation, up to a maximum
of 240 hours at their current hourly rate. Employees separating from the
classified service as the result of a reduction in force shall be paid for all
accrued annual leave, as of the date of separation, at their current hourly
rate.
H. The
estate of an employee who dies while in the classified service shall be paid
for the employee's total accrued annual leave.
[1.7.7.8 NMAC - Rp,
1 NMAC 7.7.8, 07/07/01; A, 11/14/02]
1.7.7.9 DONATION OF ANNUAL AND/OR
SICK LEAVE:
A. Employees
may donate leave to another employee in the same agency for a medical emergency
with approval of the head of the agency.
B. Employees may
donate annual leave to the full amount of their accumulated hours.
C. In accordance
with the provisions of NMSA 1978, Section 10-7-10, the
donation of sick leave is governed by the following restrictions:
(1) employees
who have accumulated more than six hundred hours of sick leave can transfer the
additional amounts over 600 hours to another employee;
(2) the
dollar value of the transferred leave shall equal 50% of the monetary value of
the total hours transferred by the donor employee;
(3) no more than 120
hours of sick leave may be transferred by the donor in any one fiscal year,
with the exception of the year in which an employee retires, when an employee
may transfer up to 400 hours of sick leave;
(4) donations of sick
leave may be made only once per fiscal year on either the pay date immediately
following the first full pay period in January or the first full pay period in
July, unless the employee is retiring.
D. An
agency shall maintain the following documentation:
(1) the name, position title, and hourly rate of pay of the proposed leave
recipient;
(2) a licensed health care provider’s description of the nature, severity,
and anticipated duration of the emergency involved which has been provided by
the employee or legally authorized representative and a statement that the
recipient is unable to work all or a portion of their work hours; and
(3) any other information which the employing agency may
reasonably require.
E. Supporting
documentation for the request to donate leave shall be kept confidential and
not subject to public inspection without the written consent of the employee.
F. The
agency shall transfer the leave to the leave account of the employee converting
the dollar value of the donor's leave based on the donor's hourly rate of pay
to hours of leave based on the recipient's hourly rate of pay.
G. The
recipient of donated leave may not use such leave until first exhausting all
accrued annual and sick leave, compensatory time and personal leave day.
H. Donated
leave shall revert to the employees who donated the leave on a prorated basis
when the medical emergency ends or the employee separates from the agency.
[1.7.7.9 NMAC - Rp,
1 NMAC 7.7.9, 07/07/01; A, 11/14/02; A, 7-15-05]
1.7.7.10 SICK LEAVE:
A. Employees,
except those on full-time educational leave with pay, absence without leave,
leave without pay, unpaid FMLA leave, or suspension without pay, shall accrue
sick leave at the rate of 3.69 hours per pay period.
B. Employees
employed on a part-time basis and employees on furlough who work at least eight
hours in a pay period shall accrue sick leave on a prorated basis.
C. Sick
leave may not be used before it is accrued and must be authorized or denied
according to agency policy.
D. An
employee may use sick leave for personal medical treatment or illness or for
medical treatment or illness of a relation by blood or marriage within the
third degree, or of a person residing in the employee's household. Employees affected by pregnancy, childbirth,
and related medical conditions must be treated the same as persons affected by
other medical conditions.
E. There
is no limit to the amount of sick leave that may be accrued.
F. No
payment shall be made for accrued sick leave at the time of separation from the
classified service except as provided by law.
G. Former
employees who were laid off and are returned to work in accordance with the
provisions of 1.7.10.10 NMAC, shall have
restored the sick leave they had accrued as of the date of layoff.
H. An
agency may authorize an employee to use accrued sick leave to attend the
funeral of a relation by blood or marriage within the third degree, or of a
person residing in the employee's household.
I. Payment for Accumulated Sick Leave:
(1) In accordance with the provisions of NMSA 1978, Section 10-7-10, employees who have accumulated 600 hours of unused sick
leave are entitled to be paid for unused sick leave in excess of 600 hours at a
rate equal to fifty percent (50%) of their hourly rate of pay for up to 120
hours of sick leave. Payment for unused sick leave may be made only once per
fiscal year on either the payday immediately following the first full pay
period in January or the first full pay period in
July.
(2) Immediately prior to retirement from the classified service, employees
who have accumulated 600 hours of unused sick leave are entitled to be paid for
unused sick leave in excess of 600 hours at a rate equal to fifty percent (50%)
of their hourly rate for up to 400 hours of sick leave.
[1.7.7.10 NMAC - Rp,
1 NMAC 7.7.10, 07/07/01; A, 11/14/02]
1.7.7.11 LEAVE
WITHOUT PAY:
A. Leave
without pay may be approved when:
(1) the agency can assure a position of like status and pay, at the same geographic
location, upon the return of the employee from leave without pay; or
(2) the employee agrees in writing to waive that requirement.
B. Leave
without pay shall not exceed 30 consecutive calendar days for employees in
emergency or temporary status.
C. Leave
without pay may not exceed 30 consecutive calendar days for probationers or
employees in term status with less than one year of employment without the
prior approval of the agency. Any leave without pay in excess of 30 consecutive
calendar days shall not be credited toward the probationary period unless the
employee was called to active military duty.
D. Leave
without pay for employees in career status and term status with more than one
year of employment shall not exceed 12 consecutive months without the prior
written approval of the agency.
E. Employees
may be authorized leave without pay for up to one year to temporarily accept a
position in the exempt service. Such leave without pay may be extended with the
approval of the board.
[1.7.7.11 NMAC - Rp,
1 NMAC 7.7.11, 07/07/01]
1.7.7.12 FAMILY AND MEDICAL LEAVE:
A. In
addition to other leave provided for in 1.7.7 NMAC eligible
employees are entitled to leave in accordance with the Family and Medical
Leave Act (FMLA) of 1993 [29 U.S.C. Section 2601 et seq.].
Employees who have been in the classified service for at least 12 months (which
need not be consecutive) and who have worked, as defined by Section 7 of
the Fair Labor Standards Act [29 U.S.C. Section 201 et seq.],
at least 1250 hours during the 12 month period immediately preceding the start
of FMLA leave are eligible employees. In addition, employment in the exempt
service, legislative or judicial branch, shall count as classified employment
for purposes of this rule.
B. Eligible
employees are entitled to a total of 12 weeks of unpaid FMLA leave in a
12-month period, at the time of a birth or placement of a child or at the time
of a serious health condition for the employee, or family members, or any
qualifying exigency arising out of the fact that the spouse, son, daughter or
parent of the employee is on active duty, or has been notified of an impending
call to active duty status, in support of a contingency operation as defined in
the FMLA. The 12-month period is calculated forward from the date an employee’s
first FMLA leave begins.
C. An eligible
employee who is the spouse, son, daughter, parent, or next of kin of a covered
servicemember who is recovering from a serious illness or injury sustained in
the line of duty on active duty is entitled to up to 26 weeks of unpaid FMLA
leave in a single 12-month period to care for the servicemember. This military
caregiver leave is available during a single 12-month period during which an
eligible employee is entitled to a combined total of 26 weeks of all types of
FMLA leave. The 12 month period is calculated forward from the date an
employee’s first FMLA leave begins.
D. An employee may elect, or an agency may require the
employee, to substitute any of the employee’s accrued annual leave, accrued
sick leave, personal leave day, accrued compensatory time, or donated leave for any part of unpaid FMLA leave.
E. If a paid holiday occurs within a
week of FMLA leave, the holiday is counted towards the FMLA entitlement. However,
if an employee is using FMLA in increments less than one week, the holiday does
not count against the employee’s
FMLA entitlement unless the employee was otherwise scheduled and expected to
work during the holiday.
F. Employees
shall not accrue annual and sick leave while on unpaid FMLA leave.
G. Agencies
shall post the required FMLA notices, maintain the required employee records,
and implement agency policies in accordance with the FMLA. All medical records
and correspondence relating to employees and/or their families shall be
considered confidential in accordance with 1.7.1.12 NMAC.
H. Disputes
over the administration of this rule shall be forwarded to the director for
resolution.
[1.7.7.12 NMAC - Rp,
1 NMAC 7.7.12, 07/07/01; A, 11/14/02; A, 6-30-06; A, 10-15-08; A/E, 1/27/09; A,
5-14-09]
1.7.7.13 ABSENCE WITHOUT LEAVE:
A. Employees
who fail to appear for work without authorized leave or who appear for work but
are in violation of agency policy governing their readiness for work shall be
considered to be absent without leave.
B. Employees
shall not be paid for any periods of absence without leave and shall not accrue
annual or sick leave.
[1.7.7.13 NMAC - Rp,
1 NMAC 7.7.13, 07/07/01]
1.7.7.14 ADMINISTRATIVE LEAVE:
A. An
agency may authorize employees leave with pay for up to five consecutive work
days when it is in the best interests of the agency to do so. Administrative
leave in excess of five consecutive work days must have the prior written
approval of the director except for administrative leave granted in accordance
with the provisions of Paragraph (2) of Subsection B of 1.7.8.19
NMAC or Paragraph (2) of Subsection D of 1.7.8.19
NMAC or 1.7.11.12 NMAC.
B. Employees
who are members of a state board or commission may be entitled to leave with
pay to attend meetings or transact business of the board or commission.
C. Employees
who are registered voters may absent themselves from work for two hours for the
purpose of voting between the time of the opening and the time of the closing
of the polls. The employer may specify
the hours during the period in which the voter may be absent. This leave is not available to employees
whose work day begins more than two hours subsequent to the time of opening the
polls or ends more than three hours prior to the time of closing the polls.
D. Employees
shall be entitled to administrative leave when appearing during regularly
scheduled work hours in obedience to a subpoena as a witness before a grand
jury or court or before a federal or state agency. Fees received as a witness,
excluding reimbursement for travel, shall be remitted to the employee's agency.
E. Employees
shall be entitled to leave with pay for serving on a grand or petit jury during
regularly scheduled work hours. Fees received as a juror, excluding
reimbursement for travel, shall be remitted to the employee's agency.
[1.7.7.14 NMAC - Rp,
1 NMAC 7.7.14, 07/07/01; A, 11/14/02; A, 7-15-05]
1.7.7.15 EDUCATIONAL LEAVE:
A. An
agency may grant employees educational leave with or without pay to pursue
special training related to their employment.
B. Employees
on full-time educational leave with pay shall not accrue annual or sick leave.
C. Employees
who are working part-time while on educational leave shall accrue annual and
sick leave in accordance with the provisions of Subsection D of 1.7.7.8
NMAC and Subsection B of 1.7.7.10 NMAC.
D. Employees
who are granted paid educational leave for training in excess of 100 work hours
in a calendar year shall agree in writing to continue with the agency for a
period of time equal to three times the period of the training.
[1.7.7.15 NMAC - Rp,
1 NMAC 7.7.15, 07/07/01]
1.7.7.16 MILITARY LEAVE:
A. Members
of organized reserve units or the national guard
ordered to active duty training shall be given up to 15 workdays of paid
military leave per federal fiscal year. These 15 workdays are in addition to
other authorized leave.
B. The
governor may grant members of the national guard paid
military leave for active duty training, in addition to that already given by
law. Such additional leave must not exceed 15 workdays per federal fiscal year.
C. Members
of the state defense force shall be granted paid military leave to attend
officially authorized training or instruction courses. Such leave applies only to
full-time employees and must not exceed 15 workdays per federal fiscal year.
D. Members
of the civil air patrol shall be granted military leave not to exceed 15
workdays per calendar year for search and rescue missions.
E. Employees
on military leave with pay shall accrue annual and sick leave.
F. Employees
who are members of a reserve component of the United States armed forces shall,
upon request, be granted unpaid leave for the period
required to perform active duty for training or inactive duty training in the
United States armed forces.
G. This rule does
not apply to employees in temporary or emergency status.
[1.7.7.16 NMAC - Rp,
1 NMAC 7.7.16, 07/07/01; A, 11/14/02; A, 7-15-05]
1.7.7.17 PERSONAL LEAVE
DAY:
A. Employees
in career status are entitled to 1 personal leave day each calendar year. The
personal leave day will be consistent with the employee's normal workday. Such
leave must be requested and approved in advance.
B. The
personal leave day must be taken during consecutive hours.
C. The
personal leave day must be taken by December 31 or it will be lost.
D. Employees
who do not take the personal leave day shall not be paid for it upon separation
from the classified service.
[1.7.7.17 NMAC - Rp,
1 NMAC 7.7.17, 07/07/01; A, 11/14/02; A, 10-15-08]
1.7.7.18 TRANSFER OF LEAVE:
A. Employees
who transfer from one agency to another shall retain all accrued annual,
personal and sick leave.
B. All accrued annual and sick leave shall be transferred
when persons change status from a position in the exempt service to a position
in the classified service without a break in employment.
C. Agencies
shall accept all accrued sick leave from persons who separate from the judicial
or legislative branches of state government and are employed in the classified
service without a break in employment of such separation.
[1.7.7.18 NMAC - Rp,
1 NMAC 7.7.18, 07/07/01; A, 11/14/02]
1.7.7.19 DONATING
AN ORGAN OR BONE MARROW:
A. In accordance
with the provisions of NMSA 1978, Section 24-28-3, an
agency head may authorize a leave of absence, not to exceed twenty workdays, to
an employee for the purpose of donating an organ or bone marrow.
B. In accordance
with the provisions of 1.7.7.9 NMAC, an employee may
request and use donated annual or sick leave for the purpose of donating an
organ or bone marrow.
C. If an employee
requests donations of annual leave or sick leave but does not receive the full
amount of leave needed for the donation of an organ or bone marrow, the agency
head may grant paid administrative leave for the remainder of the needed leave
up to the maximum total of twenty workdays.
D. An agency head
may require verification by a physician regarding the purpose of the leave
requested and information from the physician regarding the length of the leave
requested.
E. Any paid leave
of absence granted pursuant to this provision shall not result in a loss of
compensation, seniority, annual leave, sick leave or accrued overtime for which
the employee is otherwise eligible.
[1.7.7.19 NMAC - N,
12/1/10]
HISTORY OF 1.7.7 NMAC:
Pre-NMAC History:
Material in this
part was derived from that previously filed with the Commission of Public
Records - State Records Center and Archives as:
SPB Rule 13, Leaves
of Absence, filed 05-22-80;
SPB Rule 13, Leaves
of Absence, filed 09-01-81;
SPB Rule 13, Leaves
of Absence, filed 09-04-81;
SPB Rule 13, Leaves
of Absence, filed 07-22-82;
SPB Rule 13, Leaves
of Absence, filed 10-21-82;
SPB Rule 13, Leaves
of Absence, filed 03-07-86;
SPB Rule 13, Leaves
of Absence, filed 10-17-86;
SPB Rule 13, Leaves
of Absence, filed 01-13-89;
SPB-15, Absence and
Leave, filed 04-04-90;
SPB-15, Absence and
Leave, filed 12-13-90;
SPB 10, Absence and
Leave, filed 12-15-92;
SPB 10, Absence and
Leave, filed 08-03-93;
SPB 10, Absence and
Leave, filed 12-02-93;
SPB 10, Absence and
Leave, filed 03-18-94;
SPB 10, Absence and
Leave, filed 12-01-94;
SPB 10, Absence and
Leave, filed 12-29-94;
SPB 10, Absence and
Leave, filed 01-27-95;
SPB 10, Absence and
Leave, filed 03-20-95;
SPB
10, Absence and Leave, filed 09-01-95.
History of Repealed Material:
1 NMAC 7.7, Absence and Leave, filed
06-13-97.
Other History:
1 NMAC 7.9, Absence
and Leave, filed 01-12-96 replaced
SPB 10, filed 09-01-95;
1 NMAC 7.7, Absence
and Leave, filed 06-13-97 replaced 1
NMAC 7.9, Absence and Leave, filed 01-12-96;
1 NMAC 7.7, Absence
and Leave, filed 06-13-97 replaced by
1.7.7 NMAC, Absence and Leave, effective 07/07/01.