SUMMARY AND RECOMMENDATION INTRODUCTION AND FINAL ADOPTION AMENDED NDUS HR POLICIES 6.4 AND 22.7

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1 SUMMARY AND RECOMMENDATION INTRODUCTION AND FINAL ADOPTION AMENDED NDUS HR POLICIES 6.4 AND 22.7 Summary HR Policy 6.4 addresses the accrual of annual leave for certain employees. In order to clarify its language, the NDUS Human Resource Council (HRC) recommends addition of the word accrue, as shown on the attached draft, so that it is clear that annual leave is on an accrual basis. HR Policy 22.7 requires employees to use specified accrued paid leave before seeking Family Medical Leave Act ( FMLA ) leave. The HRC recommends addition of compensatory time to the types of accrued leave to be used by an employee prior to accessing leave permitted by FMLA. This will more closely align the policy with the equivalent OMB policy for other state employees. HR Policy 22.7 also references additional paid leave which may be granted to employees under HR policy 7.1 and NDCC section to care for family members with a serious health condition. This state law was changed by the 2011 legislature to permit employees to take up to 80 hours, formerly 40 hours, of paid leave to care for family members with a serious health condition. The state law became effective April 26, 2011, pursuant to an emergency clause. Upon recommendation of the HRC, the SBHE changed HR Policy 7.1, effective July 1, 2011, to also provide 80 hours of paid leave to care for family members with a serious health condition. For consistency in the two policy sections, the HRC recommends the same change, overlooked earlier, in HR Policy The chancellor s cabinet concurs with these recommendations. I recommend the SBHE adopt the following motion: Recommendation That the second meeting requirement is waived according to SBHE Policy 330 and amended NDUS HR Policies 6.4 and 22.7 as shown on the attached drafts are approved on introduction and final adoption, effective immediately. Date of Meeting: April 12, 2012 William Goetz, Chancellor

2 NORTH DAKOTA UNIVERSITY SYSTEM HUMAN RESOURCES POLICY MANUAL 6. ANNUAL LEAVE Annual leave with pay is earned by staff employees. Institutional operations govern annual leave periods. Consideration is given first to the convenience of the administration, departmental needs, then the employee's departmental seniority and finally to employee's preference Annual leave with pay for benefited full-time employees accrues based on rate per hour and is earned on the basis of continuous service from date of employment as follows: First through third year - the equivalent of 12 days per year Fourth through seventh year - the equivalent of 15 days per year Eighth through twelfth year - the equivalent of 18 days per year Thirteenth through eighteenth year - the equivalent of 21 days per year Over eighteen years - the equivalent of 24 days per year Years of service shall be computed from employment anniversary date Annual leave for benefited part time employees is earned on a prorated basis Accumulated annual leave, up to 240 hours (or the equivalent on a prorated basis for benefited part-time employees) shall be carried forward on January 1 of each year Presidents, executive deans, provosts, vice presidents, positions excluded from the broadbanding system, and other positions approved by the president or chancellor at the time of hire are entitled to accrue a minimum of twelve working days and a maximum of twentyfour working days of annual leave each year to be taken at the convenience of the administration. Accrual rates for these employees are determined by the institution president or chancellor Benefited staff employees eligible to accumulate annual leave must take forty hours (or the equivalent on a prorated basis for benefited part-time employees) of annual leave per year except for the year during which they are hired When a holiday occurs during annual leave, the holiday is not considered a day of annual leave Benefited staff employees terminating employment, or transferring to a position wherein annual leave accrual benefits do not apply, must be paid for earned unused annual leave at the hourly rate applicable at the time of termination or transfer subject to all approved payroll matched reductions/deductions. Unused annual leave shall include any leave carried over from the previous year and all accrued leave up to the date of termination.

3 Section 6. Annual Leave, Cont d In case of death, all earned, unused annual leave shall be paid according to Sec of the North Dakota Century Code Accrued annual leave for employees previously employed with other North Dakota institutions or agencies may be transferred to institutions under the State Board of Higher Education according to agreements between the employee and institution. If re-employment occurs within one calendar year, the re-employing institution shall credit the employee with prior years of service from any state agency in computing the annual leave accrual rate At the discretion of the department head and the concurrence of the appropriate administrative officer, an employee may be granted annual leave in advance of the accumulation thereof. If an employee terminates employment, any annual leave taken in advance of accumulation may be deducted from the employee's last paycheck provided the employee has signed an agreement authorizing the deduction. History: (Replaces Staff Personnel Handbook (Old Manual) as revised March 26, 1976). Amend. Sec. 6.1, 6.3, 6.3.1, 6.4, 6.5, 6.6, 6.7, 6.8, 6.9, 6.10, SBHE Minutes, June 20, 1991, pg 6143., also refer to exhibit H June 20, 1991 Amend. Sec. 6.1, 6.1, 6.2, 6.3, 6.4, 6.5, 6.6, 6.7, 6.8, 6.9, 6.10, 6.11, SBHE Minutes, March 20, 1997, pg Amend Sec. 6.4, SBHE Minutes, May 12, 1999, pg Amend. Sec. 6.2, 6.3, 6.5, 6.7, 6.10, SBHE Minutes April 26-27, Amend. Sec. 6.3, SBHE Minutes, September 26, Amend. Sec. 6.2 and 6.4, SBHE Minutes, May 8, Amend. Sec. 6.7, 6.10, SBHE Minutes, May 3, Amend. Sec. 6.1, SBHE Minutes, December 20, Amend. Sec , SBHE Minutes, May 14, (P:NDUS Human Resources Policies folder/hrp- 06.)

4 NORTH DAKOTA UNIVERSITY SYSTEM HUMAN RESOURCES POLICY MANUAL 22. FAMILY (FMLA) LEAVE Family leave (FMLA leave) is an unpaid leave of absence of up to 12 weeks available to all eligible employees: For incapacity due to pregnancy, prenatal medical care or child birth; To care for the employee s child after birth, or placement for adoption or foster care; To care for the employee s spouse, child, or parent, who has a serious health condition; or For a serious health condition that makes the employee unable to perform the employee s job. Consistent with applicable law and upon notice to the employee by the employing entity or election by the employee, family leave may be concurrent with paid sick or annual leave. FMLA leave also includes military family leave as provided under the 2008 National Defense Authorization Act and section of this policy, including a special leave entitlement that permits eligible employees to take up to 26 weeks of leave to care for a covered servicemember during a single 12 month period An eligible employee means an individual employed by the state for at least twelve months, and who has worked at least one thousand two hundred fifty hours for the state over the previous 12 months. Eligibility is determined as of the date FMLA leave commences FMLA leave used for the birth, adoption, or foster care placement of a child must begin within 12 months of the event Certification may be required by the institution to verify the existence of a serious health condition. A serious health condition is an illness, injury, impairment, or physical or mental condition that involves either an overnight stay in a medical care facility, or continuing treatment by a health care provider for a condition that either prevents the employee from performing the functions of the employee s job, or prevents the qualified family member from participating in school or other daily activities. Generally, the continuing treatment requirement may be met by a period of incapacity of more than 3 consecutive calendar days combined with at least two visits to a health care provider or one visit and a regimen of continuing treatment, or incapacity due to pregnancy or chronic condition. Other conditions may meet the definition of continuing treatment. Certification information that may be requested is defined and limited by implementing FMLA regulations (appendix A and B) The maximum length of available FMLA leave for eligible employees is 12 weeks in a 12- month period that begins with the first day of leave. The maximum length of all types of FMLA leave available during a 12-month period is 26 weeks. An employee is not required to use the FMLA leave in one block or at one time. Leave can be taken intermittently or on a reduced schedule, provided that for a serious health condition of the employee or to care for someone (P.NDUS Human Resources Policies folder/hrp 22.)

5 Section X. Qualifications for Employment, Cont d. with a serious health condition, it is medically necessary. Employees must make reasonable efforts to schedule leave for planned medical treatment so as not to unduly disrupt the employer s operations. A married couple is not limited to a total of 12 weeks if both are employed by the state; each is entitled to 12 weeks. However, the aggregated total number of workweeks to which both husband and wife may be entitled is limited to 26 weeks during a single 12-month period. Reasonable and practical notice must be provided to the agency If an employee requests intermittent leave or leave on a reduced schedule, in order to care for a spouse, son, daughter, parent, service member, or their own serious health condition that is foreseeable based on planned medical treatment, the employer may require the employee to transfer temporarily to an available alternative position. The employee must be qualified for the alternate position and the position must have equivalent pay and benefits and better accommodate recurring periods of leave than the regular position of the employee An employee is required to use accrued paid and donated leave and compensatory time before authorized unpaid FMLA leave. For any reason other than an employee s own serious health condition, employees must first use any available paid family leave (the 40 hours of paid leave granted under NDCC section and NDUS HR Policy 7.1), then accrued annual leave and donated leave and compensatory time for any of the 26 weeks. An employee who has exhausted all types of paid leave shall be provided unpaid leave to fulfill the authorized period of family leave Employees must provide 30 days advance written notice of the need to take FMLA leave when the need is foreseeable. When 30 days notice is not possible, the employee must provide notice as soon as practicable and generally must comply with the normal call-in procedure. Employees must provide sufficient information for the employer to determine if the leave may qualify for FMLA protection and the anticipated timing and duration of the leave. Sufficient information may include that the employee is unable to perform job functions, the family member is unable to perform daily activities, the need for hospitalization or continuing treatment by a health care provider, or circumstances supporting the need for military family leave. An employee seeking leave to care for a family member is not required to demonstrate that the employee is the only family member available to provide care. Employees must inform the employer if the requested leave is for which FMLA leave was previously taken or certified. Employees also may be required to provide a certification and periodic recertification supporting the need for leave NDUS entities must post and distribute FMLA employee rights notices to all employees. Notice may be distributed in employee handbooks or at hiring. Electronic notice may be used if all employees in the unit have computer access Employees are entitled to eligibility notice within 5 business days of leave request, or the day the employer acquires knowledge that the employee leave may be FMLA qualifying leave. If an employee is ineligible, notice must identify at least one reason to explain the basis of the ineligibility determination. Employees are entitled to Designation Notice, or notice that leave is FMLA-qualifying, within 5 business days. The employer may provide eligibility and designation 2 (P:NDUS Human Resources Policies folder/hrp- X.)

6 Section X. Qualifications for Employment, Cont d. notices simultaneously if the employer has sufficient information to do so at the time of the leave request When leave is completed, the employee must be returned to the same position, or a position with equivalent compensation and benefits. If a reduction in force would have caused the position to be eliminated, this reinstatement does not apply Employees utilizing family leave will be provided health benefits at the same level and coverage as if the employee had not taken leave Military Family Leave A covered service member means a member of the Armed Forces, including a member of the National Guard or Reserves, who is undergoing medical treatment, recuperation, or therapy, is otherwise in outpatient status, or is otherwise on the temporary disability retired list for a serious injury or illness Outpatient status means the status of a member of the Armed Forces assigned to a military medical treatment facility as an outpatient; or a unit established to provide command and control of members of the Armed Forces receiving medical care as outpatients Serious injury or illness means an injury to or illness incurred by the service member in the line of duty or active duty in the Armed Forces that may render the member medically unfit to perform the duties of the member s office, grade, rank or rating Qualifying exigency includes: (1) making arrangements for childcare required due to the service member s absence; (2) making financial and legal arrangements to address the service member s absence; (3) attending counseling related to the service member s active duty; (4) attending official ceremonies or programs where the military requests participation of the family member; (5) attending a farewell or arrival arrangements for the service member; or (6) attending affairs caused by the missing status or death of the service member An eligible employee with a spouse, child or parent who is on armed forces active duty, or has been notified of an impending call or order to active duty, may take up to 12 weeks of unpaid leave due to a qualifying exigency. If the need for leave is foreseeable, such as when the family member receives military orders in advance, the employee must provide the employer with reasonable and practicable notice of the need for leave. The employer may require the request for leave to be supported by a certification, such as a copy of the military orders An eligible employee who is the spouse, child, parent, or nearest blood relative of a service member who has incurred a serious illness or injury while on active duty may take up to 26 weeks of unpaid leave in a single 12-month period to care for the injured service member An employer may require that the service member or family member provide a medical certification certifying the service member is seriously injured or ill and is actively receiving medical treatment. 3 (P:NDUS Human Resources Policies folder/hrp- X.)

7 Section X. Qualifications for Employment, Cont d. History: Amend. Sec. 22, 22.1, 22.2 SBHE Minutes, June 20-21, 1991, pg Amend. Sec. 22 SBHE Minutes, June 24, 1993, pg Amend. Sec SBHE Minutes, March 20, 1997, pg Amend. Sec. 22.1, 22.2, 22.5 SBHE Minutes, September 25-26, Amend. Sec. 22.5, SBHE Minutes, June 17, Amend. Sec. 22.1, 22.2, 22.3, 22.4, 22.5, 22.6 (new), 22.7 (new), 22.8 (new), 22.9 (new), (new), (new), SBHE Minutes, May 14, (P:NDUS Human Resources Policies folder/hrp- X.)