The general purpose of this emergency rulemaking is to modify Chapters 3 and 5 of the Personnel Director’s Administrative Procedures to bridge the time gap between the start of FY 2020 - 21 (July 1, 2020) and the effective date of permanent rulemaking 2020-00257 (August 1, 2020) regarding rules promulgated to address state government's activity related to the COVID-19 response, and to address changes to the calculation of leave use related to the state's new short term disability contract.
For full information on the Basis & Purpose of the hearing click on the Basis & Purpose link below.
For full information on the Emergency Justification click on the Justification link below.
For a copy of the redlined proposed changes, or a copy of how the proposed rules would read in final form, please click on the appropriate link below. NOTE; A corrected version of the proposed changes was filed on 6/22/2020.
- Statement of Basis and Purpose
Download PDF version of the Statement of Basis and Purpose
STATEMENT OF BASIS AND PURPOSE
The State Personnel Director's Administrative Procedures ("Procedures") are found at 4 CCR 801-1.
The purpose for this rulemaking is to modify rules in 4 CCR 801-1, Chapter 5 - Time Off, specifically 5-4.(A), 5-7 [Table] and 5-17.(A). The State Personnel Director is making emergency rules covering 1) the option to carry over accrued leave by employees that did not have the ability to use, due to the declared emergency and the necessity of business continuity, and 2) modifying the leave rules to comport with contemporary practices under the state’s new short- term disability employee benefit contract which is in effect as of July 1, 2020.
The general basis of the State Personnel Director in exercising her rulemaking authority as granted is under one or more of the following: 24-33.5-701 et seq, C.R.S and/or Article XII of the Colorado Constitution.
The State Personnel Director finds, as required by §24-4-103(4)(b), C.R.S. that the need for the rulemaking exists; the proper constitutional and/or statutory authority exists for the rules; to the extent practicable, the rules are clearly and simply stated so that their meaning will be understood by any required to comply with the rules; the rules do not conflict with other provisions of the law; and any duplication or overlapping of the rules, if any, has been explained.
These emergency rules, if adopted on or before 07/01/2020 will be effective on 07/01/2020. Dated this 19th day of June, 2020
Kara Veitch, State Personnel Director Department of Personnel & Administration
- Emergency Rulemaking Justification
Download PDF version of Emergency Rulemaking Justification
June 19, 2020
EMERGENCY RULEMAKING JUSTIFICATION
Part 1: State of Disaster Emergency. On March 10, 2020, Colorado Governor Jared Polis declared a State of Disaster Emergency as the number of identified coronavirus COVID-19 cases in Colorado and in the United States increased, and announced numerous emergency measures to protect public health and safety, including directing that immediate emergency rulemaking be initiated.
In light of Executive Order 2020 003, II, I-J the need exists to provide continuity of government operations that require certain staffing levels to obtain safe and effective results. The State Personnel Director is promulgating these emergency rules governing state workers whom were not given the reasonable opportunity to use requested annual leave up to eighty (80) hours over the maximum accrual allotment and may be carried over at the discretion of the department and employee. The over accrued annual leave amount will roll over to the next fiscal year on July 1, 2020 and is available to the employee to use; and to allow sick leave balances to go negative up to forty (40) hours once all accrued sick, annual, and compensatory leave is exhausted. Subsequent sick leave accruals will be credited to the negative balance.
Part 2: The State of Colorado, under the authority of the State Personnel Director, entered into a new contract for short-term disability. The new contract is in effect on July, 1 2020. New permanent rules are effective August 1, 2020. These emergency rules are to bridge the gap between July 1, 2020 and the permanent rules effective August 1, 2020.
The State Personnel Director is exercising her rulemaking authority as granted under one or more of the following: Executive Order 2020 003; 24-33.5-701 et seq, C.R.S; Article XII of the Colorado Constitution.
This emergency rule shall go into effect July 1st, 2020. Pursuant to the Administrative Procedures Act C.R.S. §24-4-103(6), an emergency rule can only be in effect for a maximum of 120 days.
Kara Veitch, State Personnel Director Department of Personnel & Administration
- Changes Accepted for Emergency
Download PDF version of Changes Accepted for Emergency
State of Colorado
DEPARTMENT OF PERSONNEL AND ADMINISTRATION
State Personnel Board and State Personnel Director
STATE PERSONNEL BOARD RULES AND PERSONNEL DIRECTOR’S ADMINISTRATIVE PROCEDURES 4 CCR 801-1
The purpose of the State Personnel Board Rules and Director's Administrative Procedures is to establish a comprehensive system of rules and procedures for employees within the state personnel system. In order to distinguish them from Director’s procedures, rules promulgated by the State Personnel Board are noted as “Board Rules”. Rules adopted by the Board and procedures adopted by the Director require the formal rulemaking process defined in the Administrative Procedures Act.
Preamble
Unless otherwise noted in a specific provision, the entire body of State Personnel Board Rules were repealed and new permanent rules were adopted by the State Personnel Board on April 19, 2005, pursuant to a Statement of Basis and Purpose dated April 19, 2005. The entire body of the State Personnel Director's Administrative Procedures were repealed and new permanent procedures were adopted by the State Personnel Director on May 5, 2005, pursuant to a Statement of Basis and Purpose dated May 5, 2005. Such rules and procedures were effective July 1, 2005.
This version reflects an emergency rulemaking by the State Personnel Director as follows: 5-4.(A)., 5-7. (Table)., and 5-17.(A). These emergency administrative procedures are effective July 1, 2020 and are in effect for 120 days.
Chapter 5 - Time Off
Accrued Paid Leave
5-4.
Annual leave is for an employee’s personal needs and use is subject to the approval of the appointing authority. The appointing authority may establish periods when annual leave will not be allowed, or shall be taken, based on business necessity. These periods cannot create a situation where the employee does not have a reasonable opportunity to use requested leave that will be subject to forfeiture. If the department cancels approved leave that results in forfeiture, the forfeited hours shall be paid before the end of the fiscal year. (5/1/10)
A. Due to the declaration of a state of emergency by the Governor, as defined in the Colorado Disaster Emergency Act, if annual leave was denied, cancelled or the employee was not given reasonable opportunity to use the requested annual leave, resulting in annual leave being subject to forfeiture under rule, up to eighty (80) hours of leave over the maximum accrual allotment may be carried over to the next fiscal year in lieu of payment. The over accrued annual leave amount (up to eighty (80) hours) will roll over to the next fiscal year on July 1 and will be available to the employee to use. This amount will not carry over for a second fiscal year. Any annual leave hours over the maximum accrual amount not carried over in this Rule 5-4.(A) and subject to forfeiture shall be paid out to the employee before the end of the fiscal year. (5/01/2020)
5-7. Table (07/01/2020)
Monthly Leave Earning, Accrual, Payout, and Restoration for Permanent Employees
Annual Leave
Years of
Service*Hrs. / Mon. Max
Accrual **Payout Years 1 – 5
(01 – 60
Months)8 192
hoursUpon termination or death, unused leave is paid out up to the maximum accrual rate. Years 6 – 10
(61 – 120
Months)
10 240
hours
Upon termination or death, unused leave is paid out up to the maximum accrual rate. Years 11 – 15
(121 – 180
Months)
12 288
hours
Upon termination or death, unused leave is paid out up to the maximum accrual rate. Years 16 or Greater (181 or more Months) 14 336
Hours
Upon termination or death, unused leave is paid out up to the maximum accrual rate. * Years of service is computed from the 1st calendar day of the month following the hire date; except if the employee began work on the 1st working day of a month, include that month in the count. Employees with prior permanent state service, in or out of the state personnel system, earn leave based on the total whole months of service, excluding temporary assignments.
** Over-accrued amounts are forfeited at the beginning of the new fiscal year (July 1st) except when Rule 5-4. A. is applicable.
Sick Leave****
Hrs. / Mon. Max
Accrual ***Restoration Payout 6.66 360 hours Previously accrued sick leave up to three hundred and sixty (360) hours is restored when eligible for reinstatement or reemployment. Upon death or if eligible to retire, one quarter (¼) of unused leave paid out to the maximum accrual rate. PERA's age and service requirements under the Defined Benefit plan are applied regardless of the plan actually enrolled in. *** Over-accrued sick leave up to eighty (80) hours is converted to annual leave each new fiscal year (July 1st) at a five to one (5:1) ratio (five (5) hours of sick converts to one (1) hour annual leave). An employee may have an individual maximum accrual that is greater than three hundred and sixty
(360) hours if continuously employed in the state personnel system prior to 7/1/88. Maximum accrual for these employees is calculated by adding three hundred and sixty (360) hours to the leave balance on 6/30/88.**** During the declaration of a state of emergency by the Governor, as defined in the Colorado Disaster Emergency Act, sick leave balances may go negative up to forty (40) hours once all accrued sick, annual leave, and compensatory time is exhausted. Subsequent sick leave accruals will be credited to the negative balance. If an employee separates before the negative balance is recovered, it will be deducted from their final paycheck.
General Provisions
Employees shall be at work or on paid leave to earn monthly leave. Leave is credited on the last day of the month in which it is earned and is available for use on the first day of the next month, subject to any limitations elsewhere in Chapter 5, Time Off. A terminating employee shall be compensated for annual leave earned through the last day of employment.
Part-time employees who work regular, non-fluctuating schedules earn leave on a prorated basis based on the percentage of the regular appointment, rounded to the nearest one, one hundredth (1/100) of an hour. Leave for part- time employees who work irregular, fluctuating schedules and full-time employees who work or are on paid leave less than a full month is calculated by dividing the number of hours paid by the number of work hours in the monthly pay period. The percentage is then multiplied by the employee’s leave earning rate to derive the leave earned. Overtime
hours are not included in leave calculations.Leave payouts at separation are calculated using the annualized hourly rate of pay (annual salary divided by two thousand eighty (2080) hours for full-time employees), and employees are only eligible for the sick leave payout one (1) time - initial eligibility for retirement.
Forfeiture of leave as a disciplinary action or a condition of promotion, demotion, or transfer is not allowed.
Borrowing against any leave that may be earned in the future or “buying back” leave already used is not allowed, except during a declaration of a state of emergency by the Governor, as defined in the Colorado Disaster Emergency Act, as indicated above.Use of annual leave cannot be required for an employee being laid off.
Make Whole: When an employee is receiving workers’ compensation payments, accrued paid leave is used to make the employee’s salary whole in an amount that is closest to the difference between the temporary compensation payment and the employee’s gross base pay, excluding any pay differentials. Leave earning is not prorated when an employee is being made whole.
Short-Term Disability: Employees are required to use accrued paid leave during the thirty (30) day waiting period for short-term disability benefits, including the use of accrued annual leave and/or compensatory time once accrued sick leave has been exhausted. When an employee is receiving short-term disability payments, the employee may choose to use accrued paid leave to make their salary whole in an amount this is closest to the difference between the short- term disability benefit payment and the employee’s gross base pay, excluding any pay differentials. Employees who elect to be made whole will use accrued sick leave first, then annual leave or compensatory time as available.
Employees shall not use negative sick leave to be made whole. Leave earning is not prorated when an employee is being made whole.
5-17.
Unpaid leave may be approved by the appointing authority unless otherwise prohibited. The appointing authority may also place an employee on unpaid leave for unauthorized absences and may consider corrective and/or disciplinary action. Probationary and trial service periods are extended by the number of days on unpaid leave and may be extended for periods of paid leave. The amount of unpaid leave for employees paid on a monthly pay cycle is calculated based on the monthly salary multiplied by the number of unpaid leave hours divided by the number of hours in the pay period. The amount of unpaid leave for nonexempt employees paid on a biweekly pay cycle is calculated based on the hourly pay rate multiplied by the number of unpaid leave hours. The amount of unpaid leave for exempt employees paid on a biweekly pay cycle is calculated based on the biweekly salary multiplied by the number of unpaid leave hours divided by the number of hours in the pay period. (11/1/2019)
A. Short-term disability (STD) leave is a type of unpaid leave of up to six (6) months while either state or PERA STD benefit payments are being made. To be eligible for this leave, employees shall have one (1) year of service and an application for the STD benefit shall be submitted within thirty (30) days of the beginning of the absence. The employee shall also notify the department at the same time that a benefit application is submitted to the insurance provider. (07/01/2020)
- Tracked Changes Accepted for Emergency
Download PDF Version of Tracked Changes Accepted for Emergency
State of Colorado
DEPARTMENT OF PERSONNEL AND ADMINISTRATION
State Personnel Board and State Personnel Director
STATE PERSONNEL BOARD RULES AND PERSONNEL DIRECTOR’S ADMINISTRATIVE PROCEDURES 4 CCR 801-1
The purpose of the State Personnel Board Rules and Director's Administrative Procedures is to establish a comprehensive system of rules and procedures for employees within the state personnel system. In order to distinguish them from Director’s procedures, rules promulgated by the State Personnel Board are noted as “Board Rules”. Rules adopted by the Board and procedures adopted by the Director require the formal rulemaking process defined in the Administrative Procedures Act.
Preamble
Unless otherwise noted in a specific provision, the entire body of State Personnel Board Rules were repealed and new permanent rules were adopted by the State Personnel Board on April 19, 2005, pursuant to a Statement of Basis and Purpose dated April 19, 2005. The entire body of the State Personnel Director's Administrative Procedures were repealed and new permanent procedures were adopted by the State Personnel Director on May 5, 2005, pursuant to a Statement of Basis and Purpose dated May 5, 2005. Such rules and procedures were effective July 1, 2005.
This version reflects an emergency rulemaking by the State Personnel Director as follows: 5-4.(A)., 5-7. (Table)., and 5-17.(A). These emergency administrative procedures are effective July 1, 2020 and are in effect for 120 days.
Chapter 5 - Time Off
Accrued Paid Leave
5-4.
Annual leave is for an employee’s personal needs and use is subject to the approval of the appointing authority. The appointing authority may establish periods when annual leave will not be allowed, or shall be taken, based on business necessity. These periods cannot create a situation where the employee does not have a reasonable opportunity to use requested leave that will be subject to forfeiture. If the department cancels approved leave that results in forfeiture, the forfeited hours shall be paid before the end of the fiscal year. (5/1/10)
A. Due to the declaration of a state of emergency by the Governor, as defined in the Colorado Disaster Emergency Act, if annual leave was denied, cancelled or the employee was not given reasonable opportunity to use the requested annual leave, resulting in annual leave being subject to forfeiture under rule, up to eighty (80) hours of leave over the maximum accrual allotment may be carried over to the next fiscal year in lieu of payment. The over accrued annual leave amount (up to eighty (80) hours) will roll over to the next fiscal year on July 1 and will be available to the employee to use. This amount will not carry over for a second fiscal year. Any annual leave hours over the maximum accrual amount not carried over in this Rule 5-4.(A) and subject to forfeiture shall be paid out to the employee before the end of the fiscal year. (
07/01/2020)During the declaration of a state of emergency by the Governor, as defined in the Colorado Disaster Emergency Act, when leave was denied or the employee was not given reasonable opportunity to use the requested leave, annual leave up to eighty (80) hours over the maximum accrual allotment may be carried over at the discretion of the department and employee. The over accrued annual leave amount will roll over to the next fiscal year on July 1 and is available to the employee to use. This amount will not carry over for a second fiscal year. Accrued annual leave in excess of the eighty (80) hours over the maximum accrual allotment that the department cancelled shall be paid out to the employee. (04/01/2020)5-7. Table
(02/2017)(078/01/2020)Monthly Leave Earning, Accrual, Payout, and Restoration for Permanent Employees
Annual Leave
Years of
Service*Hrs. / Mon. Max
Accrual **Payout Years 1 – 5
(01 – 60
Months)8 192
hoursUpon termination or death, unused leave is paid out up to the maximum accrual rate. Years 6 – 10
(61 – 120
Months)
10 240
hours
Upon termination or death, unused leave is paid out up to the maximum accrual rate. Years 11 – 15
(121 – 180
Months)
12 288
hours
Upon termination or death, unused leave is paid out up to the maximum accrual rate. Years 16 or Greater (181 or more Months) 14 336
Hours
Upon termination or death, unused leave is paid out up to the maximum accrual rate. * Years of service is computed from the 1st calendar day of the month following the hire date; except if the employee began work on the 1st working day of a month, include that month in the count. Employees with prior permanent state service, in or out of the state personnel system, earn leave based on the total whole months of service, excluding temporary assignments.
** Over-accrued amounts are forfeited at the beginning of the new fiscal year (July 1st) except when Rule 5-4. A. is applicable.
Sick Leave****
Hrs. / Mon. Max
Accrual ***Restoration Payout 6.66 360 hours Previously accrued sick leave up to three hundred and sixty (360) hours is restored when eligible for reinstatement or reemployment. Upon death or if eligible to retire, one quarter (¼) of unused leave paid out to the maximum accrual rate. PERA's age and service requirements under the Defined Benefit plan are applied regardless of the plan actually enrolled in. *** Over-accrued sick leave up to eighty (80) hours is converted to annual leave each new fiscal year (July 1st) at a five to one (5:1) ratio (five (5) hours of sick converts to one (1) hour annual leave). An employee may have an individual maximum accrual that is greater than three hundred and sixty
(360) hours if continuously employed in the state personnel system prior to 7/1/88. Maximum accrual for these employees is calculated by adding three hundred and sixty (360) hours to the leave balance on 6/30/88.**** During the declaration of a state of emergency by the Governor, as defined in the Colorado Disaster Emergency Act, sick leave balances may go negative up to forty (40) hours once all accrued sick, annual leave, and compensatory time is exhausted. Subsequent sick leave accruals will be credited to the negative balance. If an employee separates before the negative balance is recovered, it will be deducted from their final paycheck.
General Provisions
Employees shall be at work or on paid leave to earn monthly leave. Leave is credited on the last day of the month in which it is earned and is available for use on the first day of the next month, subject to any limitations elsewhere in Chapter 5, Time Off. A terminating employee shall be compensated for annual leave earned through the last day of employment.
Part-time employees who work regular, non-fluctuating schedules earn leave on a prorated basis based on the percentage of the regular appointment, rounded to the nearest one, one hundredth (1/100) of an hour. Leave for part- time employees who work irregular, fluctuating schedules and full-time employees who work or are on paid leave less than a full month is calculated by dividing the number of hours paid by the number of work hours in the monthly pay period. The percentage is then multiplied by the employee’s leave earning rate to derive the leave earned. Overtime
hours are not included in leave calculations.Leave payouts at separation are calculated using the annualized hourly rate of pay (annual salary divided by two thousand eighty (2080) hours for full-time employees), and employees are only eligible for the sick leave payout one (1) time - initial eligibility for retirement.
Forfeiture of leave as a disciplinary action or a condition of promotion, demotion, or transfer is not allowed.Borrowing against any leave that may be earned in the future or “buying back” leave already used is not allowed, except during a declaration of a state of emergency by the Governor, as defined in the Colorado Disaster Emergency Act, as indicated above.
Use of annual leave cannot be required for an employee being laid off.
Make Whole: When an employee is receiving workers’ compensation payments, accrued paid leave is used to make the employee’s salary whole in an amount that is closest to the difference between the temporary compensation payment and the employee’s gross base pay, excluding any pay differentials. Leave earning is not prorated when an employee is being made whole.
Short-Term Disability: Employees are required to use accrued paid leave during the thirty (30) day waiting period for short-term disability benefits, including the use of accrued annual leave and/or compensatory time once accrued sick leave has been exhausted.
When an employee is receiving short-term disability payments, accrued paid leave may be used to make the employee’s salary whole in an amount that is closest to the difference between the short-term disability benefit payment and the employee’s gross base pay, excluding any pay differentials. Leave earning is not prorated when an employee is being made whole.When an employee is receiving short-term disability payments, the employee may choose to use accrued paid leave to make their salary whole in an amount this is closest to the difference between the short- term disability benefit payment and the employee’s gross base pay, excluding any pay differentials. Employees who elect to be made whole will use accrued sick leave first, then annual leave or compensatory time as available.Employees shall not use negative sick leave to be made whole. Leave earning is not prorated when an employee is being made whole.
5-17.
Unpaid leave may be approved by the appointing authority unless otherwise prohibited. The appointing authority may also place an employee on unpaid leave for unauthorized absences and may consider corrective and/or disciplinary action. Probationary and trial service periods are extended by the number of days on unpaid leave and may be extended for periods of paid leave. The amount of unpaid leave for employees paid on a monthly pay cycle is calculated based on the monthly salary multiplied by the number of unpaid leave hours divided by the number of hours in the pay period. The amount of unpaid leave for nonexempt employees paid on a biweekly pay cycle is calculated based on the hourly pay rate multiplied by the number of unpaid leave hours. The amount of unpaid leave for exempt employees paid on a biweekly pay cycle is calculated based on the biweekly salary multiplied by the number of unpaid leave hours divided by the number of hours in the pay period. (11/1/2019)
A. Short-term disability (STD) leave is a type of unpaid leave of up to six (6) months while either state or PERA STD benefit payments are being made. To be eligible for this leave, employees shall have one (1) year of service and an application for the STD benefit shall be submitted within thirty (30) days of the beginning of the absence
absence or at least thirty (30) days prior to the exhaustion of all accrued sick leave.The employee shall also notify the department at the same time that a benefit application is submitted to the insurance provider. (078/01/2020)