Current through Register Vol. 35, No. 6, March 26, 2024
A. Employees who have suffered an injury or
illness which is compensable under the workers' compensation act and are
physically or mentally unable to perform the essential functions of their
pre-injury/pre-illness position, with or without reasonable accommodation,
shall be separated from the service without prejudice provided:
(1) the employee has been afforded modified
duty in accordance with 1.7.10.12 NMAC;
(2) the employee has reached maximum medical
improvement prior to the completion of up to 12 months of modified duty; or,
the employee has not reached maximum medical improvement upon the expiration of
up to 12 months of modified duty;
(3) all efforts to accommodate the medical
restrictions of the employee have been made and documented; and
(4) the employing agency has made reasonable
efforts to find other suitable vacant positions within the agency at the same
or lower midpoint than the midpoint of the pre-injury/pre-illness position for
which:
(a) the employee meets the established
requirements and can perform the essential functions of the job, either with or
without reasonable accommodation, or
(b) the agency certifies that the employee
holds qualifications and abilities necessary for successful job performance and
can perform the essential functions of the job, either with or without
reasonable accommodation.
B. Employees who have suffered an illness or
injury that is not compensable under the workers' compensation act and are
unable to perform the essential functions of their pre-injury/pre-illness
position, with or without reasonable accommodation, as a result of the physical
or mental disability created by the non job-related injury or illness shall be
separated from the service without prejudice provided:
(1) all efforts to reasonably accommodate the
medical restrictions of the employee have been made and documented;
and
(2) the employing agency has
made reasonable efforts to find other suitable vacant positions within the
agency at the same or lower midpoint than the midpoint of the
pre-injury/pre-illness position for which:
(a)
the employee meets the established requirements and can perform the essential
functions of the job, either with or without reasonable accommodation;
or
(b) the agency certifies that
the employee holds qualifications and abilities necessary for successful job
performance and can perform the essential functions of the job, either with or
without reasonable accommodation.
C. Agencies may provide modified duty to
employees for a period of up to 4 months during the separation process if
required to meet the provisions of this rule.
D. Notice of contemplated separation without
prejudice:
(1) to initiate the separation
without prejudice of an employee who has completed the probationary period, the
agency shall serve a notice of contemplated separation without prejudice on the
employee which: describes the circumstances which form the basis for the
contemplated separation without prejudice; gives a general explanation of the
evidence the agency has; advises the employee of his or her right to inspect
and obtain copies of any documentary evidence relied upon; specifies what the
contemplated action is; and states that the employee has 11 calendar days from
service of the notice to respond in writing to the notice or to request an
opportunity for an oral response;
(2) when the notice of contemplated
separation without prejudice is served by mail, the employee receiving service
shall have 3 additional calendar days in which to file a response;
(3) at the time the notice of contemplated
separation without prejudice is served on the employee, the agency shall notify
the director and the risk management division of the general services
department of the proposed separation without prejudice and submit a copy of
the separation notice along with documentation to support efforts to provide
modified duty and to support efforts to find other suitable vacant
positions.
E. Response
to notice of contemplated separation without prejudice:
(1) a representative of the employee's
choosing may respond in writing to the notice of contemplated separation
without prejudice on behalf of the employee;
(2) if there is a request for an oral
response to the notice of contemplated separation without prejudice, the agency
shall meet with the employee within 11 calendar days of a request for an oral
response, unless the employee and the agency agree in writing to an extension
of time; a representative of the employee's choosing may represent the
employee;
(3) the purpose of the
oral response is not to provide an evidentiary hearing but is an opportunity
for the employee to present his or her side of the story; it is an initial
check against mistaken decisions, essentially a determination of whether there
are reasonable grounds to support the proposed involuntary separation without
prejudice.
F. Notice of
final separation without prejudice:
(1) if the
employee does not respond to the notice of contemplated separation without
prejudice the agency shall issue a notice of final separation within 11
calendar days following the response period;
(2) if the employee has filed a written
response or has been provided an opportunity for oral response, the agency
shall issue a notice of final separation without prejudice no later than 11
calendar days from the date of receipt of the response;
(3) the notice of final separation without
prejudice shall:
(a) specify the action to be
taken;
(b) describe the
circumstances which form the basis for the separation without prejudice, which
may not include allegations not included in the notice of contemplated
separation without prejudice;
(c)
give a general explanation of the evidence the agency has;
(d) specify when the final separation without
prejudice will be effective, which must be at least 24 hours from the time of
service of the notice of final separation without prejudice;
(e) inform the employee that the final
separation without prejudice may be appealed to the board with a written
statement of the grounds for the appeal delivered to the state personnel office
in Santa Fe, New Mexico, and received by the director within 30 calendar days
of the effective date of the separation without prejudice; and
(f) the adjudication process is outlined in
1.7.12 NMAC.