# COMAR Title 11 — Department of Transportation ## Subtitle 02 — Transportation Service Human Resources System ### Chapter 01 — Applicability and Definitions **Authority:** State Personnel and Pensions Article, §2-106; Transportation Article, §§2-102, 2-103.4, and 7-201; Annotated Code of Maryland **Administrative History:** Effective date: January 18, 1993 (20:1 Md. R. 27) **Administrative History:** Regulation .01B amended effective October 7, 1996 (23:20 Md. R. 1424) **Administrative History:** Regulation .02B amended effective September 12, 1994 (21:18 Md. R. 1509); March 25, 1996 (23:6 Md. R. 476); October 7, 1996 (23:20 Md. R. 1424); March 26, 2007 (34:6 Md. R. 627); October 27, 2014 (41:21 Md. R. 1260) #### Regulation .01 Applicability. *COMAR 11.02.01.01* A. These regulations apply to employees of the Transportation Service Human Resources System (Transportation Service) established under the authority of Transportation Article, §2-103.4, Annotated Code of Maryland. B. Exceptions. (1) These regulations do not apply to Maryland Transit employees who are included under a collective bargaining agreement. (2) AG employees are subject only to COMAR 11.02.03 and 11.02.13. #### Regulation .02 Definitions. *COMAR 11.02.01.02* A. In this subtitle, the following terms have the meanings indicated. B. Terms Defined. (1) “Administration” means the: (a) Maryland Aviation Administration; (b) Motor Vehicle Administration; (c) State Highway Administration; (d) Maryland Transportation Authority; (e) Maryland Port Administration; (f) Maryland Transit Administration; and (g) Secretary's Office. (2) “Administrator” means the: (a) Secretary of Transportation; (b) Deputy Secretary of Transportation; (c) Administrators of the: (i) Maryland Transit Administration, (ii) Motor Vehicle Administration, and (iii) State Highway Administration; (d) Executive Director of the Maryland Aviation Administration; (e) Executive Director of the Maryland Port Administration; and (f) Executive Director of the Maryland Transportation Authority. (2-1) “AG employee” means an employee who is compensated by the Department and who serves at the pleasure of and whose level of compensation is governed by the Attorney General. (3) “Appointing authority” means the Secretary or the Secretary's designee. (4) “Appointment” means the filling of a vacant position. (5) Career Service Employee. (a) “Career Service employee” means an employee of the Transportation Service who has been selected competitively and who, after completion of probation, may be dismissed only for cause. (b) Notwithstanding the provisions of §B(16) of this regulation, “Career Service employees” includes secretarial staff who provide direct staff support to the offices of the administrators and who, immediately before the date of their conversion into Transportation Service, were: (i) Classified service employees in the State Personnel Management System; or (ii) Employees of the Maryland Transportation Authority, the Maryland Port Administration, or the Maryland Transit Administration, and who were removable only for cause. (6) “Class” or “classification” means a grouping of one or more positions sufficiently similar with respect to duties, responsibilities, and qualifications so that the same descriptive title may be used to designate each position in that grouping. (7) “Commission Plan employee” means an employee engaged in a marketing or sales activity, whose compensation method is based upon private sector practices for sales and marketing positions, and who serves at the pleasure of the appointing authority. (8) “Contractual employee” means an employee whose conditions of employment and compensation are specified in a personal services contract. (9) “Conversion” means the movement of individuals who are Department of Transportation employees into the Transportation Service, regardless of whether it is by simultaneous movement of employee and position, or by movement of an employee into a vacant position. (10) “Day” means calendar day, unless otherwise defined in this subtitle. (11) “Demotion” means a change from one class to another with a lower maximum rate of compensation which may result in the reduction of an employee's wages or salary. (12) “Department” means the Maryland Department of Transportation, including the administrations. (13) “Deputy Secretary” means the Deputy Secretary of Transportation. (14) “Designee” means the representative of an appointing authority who has been delegated in writing certain powers of the appointing authority. (15) “Emergency employee” means an employee who is hired for a period not to exceed 90 days and who does not receive leave or other fringe benefits. (16) “Executive Service employee” means an employee of the Transportation Service who: (a) Serves at the pleasure of the appointing authority; and (b) Is compensated on either the executive or standard salary schedules of the Department, and either: (i) Staffs a significant policy role, (ii) Staffs a position that requires expert, unique, or specialized training or qualifications to which the Career Service selection procedures set forth in COMAR 11.02.02.02 do not apply or are not practical, or (iii) Provides direct staff support to the offices of the administrators. (17) “Fringe benefits” means any form of noncash compensation including, but not limited to, health insurance subsidies, retirement, or pension benefits. (18) “Grievance” means a cause of complaint, unless otherwise provided for by law or regulation, arising between a Transportation Service employee and the Department of Transportation over the interpretation and application of Department regulations, rules, or policies over which management has control. (19) “List of eligibles” means a list of applicants whose eligibility for employment in a specific classification has been certified as candidates by an MDOT Human Resources Office. (20) “Party” means an employee having a grievance or other right of appeal under this subtitle or the employee's appointing authority or designee, or both. (21) “Position” means a set of duties and responsibilities for a job funded under an approved budget and having an assigned position identification number (PIN). (22) “Probation” means a trial work period at the beginning of an employee's tenure in a position during which an employee is evaluated. (23) “Promotion” means a change from the current position into a vacant position in a different classification that has a higher maximum rate of compensation. (24) “Reassignment” means the movement of a Transportation Service employee within an administration. (25) “Reclassification” means the change of a position from one class to another class which more appropriately reflects the duties of the position and which may be at a higher, lower, or the same salary scale as the former position. (26) “Reinstatement” means the reemployment of an individual who separated in good standing from the Department and the restoration of certain salary and leave benefits. (27) “Secretary” means the Secretary of Transportation. (28) “Temporary employee” means an employee who is hired for a limited period of time and who does not receive leave or other fringe benefits. (29) “Transfer” means the movement of a Transportation Service employee between administrations. ### Chapter 02 — Hiring, Appointment, Promotion, and Resignation **Authority:** Transportation Article, §§2-102, 2-103.4, and 7-201; State Personnel and Pensions Article, §2-106; Annotated Code of Maryland **Administrative History:** Effective date: January 18, 1993 (20:1 Md. R. 27) **Administrative History:** Regulation .02 amended effective August 30, 1993 (20:17 Md. R. 1346); September 12, 1994 (21:18 Md. R. 1509) **Administrative History:** Regulation .02O amended effective March 15, 2004 (31:5 Md. R. 450) **Administrative History:** Regulation .03D amended and .03E and F adopted effective August 30, 1993 (20:17 Md. R. 1346) **Administrative History:** Regulation .03E amended effective December 22, 2003 (30:25 Md. R. 1848) **Administrative History:** Regulation .05J amended effective March 9, 2009 (36:5 Md. R. 423) **Administrative History:** Regulation .05K adopted effective October 7, 1996 (23:20 Md. R. 1424) **Administrative History:** Regulation .06C amended effective August 30, 1993 (20:17 Md. R. 1346) **Administrative History:** Regulation .08 adopted effective August 30, 1993 (20:17 Md. R. 1346) **Administrative History:** Regulation .09 adopted effective September 12, 1994 (21:18 Md. R. 1509) #### Regulation .01 Employee Categories. *COMAR 11.02.02.01* A. The Transportation Service may employ the categories of employees set forth in §§B—G of this regulation. B. Career Service Employees. Career service is intended to facilitate a career commitment. Employees appointed as Career Service employees shall be hired from a competitive list of eligibles. Upon satisfactory completion of a required probation period, employees may only be terminated for cause. C. Executive Service Employees. Employees appointed as Executive Service employees shall be hired based on their experience or other relevant qualifications for the position. Executive Service employees serve at the pleasure of the appointing authority. D. Temporary Employees. (1) Employees appointed as temporary employees shall: (a) Be hired for a specific period not to exceed 12 months or the limits established under a special employment program, such as a student intern program; and (b) Meet the minimum qualifications for the classification for which they are appointed. (2) Temporary employees serve at the pleasure of the appointing authority, and are compensated only by cash compensation. E. Commission Plan Employees. Commission Plan employees are appointed to positions comparable to those in private industry and serve at the pleasure of the appointing authority. The compensation method shall be based upon accepted private sector practices to include a base salary plus commissions earned by achieving goals that relate directly to additional sales volume or enhanced net revenue. F. Contractual Employees. Employees appointed as contractual employees shall be hired on a personal services contract based on their qualifications. Conditions of their employment and compensation shall be specified in the contract. Total compensation includes cash, leave, and benefits, exclusive of pension or retirement benefits, and shall be the same for same classifications. However, the combination of cash, leave, and benefits may be varied according to the needs of the contract. G. Emergency Employees. Employees shall be appointed on an emergency basis only for a period not to exceed 90 days and compensated only by cash compensation. #### Regulation .02 Career Service Examinations and Selections. *COMAR 11.02.02.02* A. Except as provided under §O of this regulation, Career Service positions shall be filled competitively. B. Examination methods shall be job related, and may only assess the applicant's job-related skills, knowledge, abilities, education, and experience. Examinations may be specific to a particular position, a class, or a classification series. C. A written selection plan shall be established which sets forth the steps in the recruitment, examination, and selection process, their relative value in the total process, and the sequence of the steps. D. Lists of eligibles shall be established which group job candidates into categories. The categories shall range from the qualified to the best qualified. E. Geographic Area Limitation. Applicants shall select those geographic areas for which they wish to be considered. F. An appointing authority shall select a candidate from the highest rating category of a list of eligibles, except as specified in §H of this regulation or if the highest rating category contains an insufficient number of candidates. Selection may be further limited to those applicants who have elected to work in the areas in which the positions' functions are performed. G. An appointing authority may select a job candidate for a vacant Career Service position from a listing of qualified candidates supplied by the Human Resources Office. If an appointing authority or the appointing authority's designee cannot make an adequate selection from among those candidates, the appointing authority shall document the reasons and may request the Human Resources Office to provide additional job candidates from the list of eligibles. H. Job Specific Selections. An appointing authority who is filling a vacant Career Service position that requires specific job skills not found among job candidates on the existing list of eligibles shall document the reasons for not filling the position from the existing list of eligibles, and may request the Human Resources Office to establish a list of job candidates who possess the specific job skills required. I. Before selection, candidates on the list of eligibles may be required to demonstrate other job-related qualifications for the specific job to be filled. J. Removal from Lists of Eligibles. (1) A candidate shall be removed from a list of eligibles: (a) For deceptive or fraudulent conduct or other misconduct in the employment process; (b) For failing to respond to two notices for interviews; or (c) If the candidate is selected for a position from the list of eligibles. (2) A candidate shall be removed from a list of eligibles for a geographic area the candidate selected in accordance with §E of this regulation if the candidate declines because of location to consider a job opportunity in that geographic area. K. Promotional Selections. An appointing authority may limit the selection of a candidate to fill a vacant Career Service position to a list of State, Department of Transportation, or administration employees. L. Employees in positions in the Department immediately before their conversion into the Transportation Service may be converted into the Career Service without competitive examination or selection. M. A contractual employee who was awarded a contract following a competitive examination and selection process as specified in §§B and C of this regulation may be placed in a Career Service vacancy which is the same or substantially the same without being subject to further competition. N. In the design of its selection plan for a vacant Career Service position, an appointing authority may use an eligible list certified for a unique classification under the authority of State Personnel and Pensions Article, §4-302, Annotated Code of Maryland, if the eligible list was certified before the date of the administration's incorporation into the Transportation Service. Notwithstanding any regulation to the contrary, the eligible list shall remain in full force and effect until the date of its expiration, and the relative standing of eligibles may not be affected except when a clerical error or fraudulent act has tainted an examination score. O. Career Service positions may be exempt from competitive examinations and use of eligible lists if the positions are entry level, trainee level, or occupations that require minimal experience: (1) That have been determined by the Director, Office of Human Resources at the Secretary's office; and (2) For which the Director, Office of Human Resources at the Secretary's office has determined that competitive examinations are either impractical or cannot validly evaluate candidates' abilities and knowledge. P. For any position exempted from the use of competitive examinations and lists of eligibles by §O of this regulation, the position is to be filled in accordance with a selection plan setting forth how candidates shall be recruited and screened for interviews and the relative value of factors to be considered in the selection. #### Regulation .03 Career Service Promotion. *COMAR 11.02.02.03* A. The Transportation Service shall provide notice to current employees of promotional job recruiting opportunities through the posting of job vacancy notices and test schedules on bulletin boards and through other appropriate recruiting methods. B. Transportation Service promotional practices shall be in accordance with applicable federal and State equal opportunity laws and regulations. C. An appointing authority may limit the selection of employees for promotion to Transportation Service vacancies to current Department of Transportation employees as provided for in Regulation .02 of this chapter. D. Commission Plan, Executive Service, contractual, and temporary employees with at least 6 months service are entitled to promotional status for purposes of examination and selection. E. Career Service employees with at least 6 months service are entitled to promotional status for purposes of examination and selection. F. Other Department employees who have 6 months of service in a position and, if applicable, have completed an original probation period, are entitled to promotional status for purposes of examination and selection. #### Regulation .04 Resignation. *COMAR 11.02.02.04* A. Notice. An employee may resign a position by providing at least 2 weeks notice, or a lesser time period if acceptable, to the appointing authority. Failure to provide an acceptable notice period may be grounds for issuing a notice of disqualification for future employment. B. Automatic Resignation. An employee who does not report to work or provide notice to the supervisor of the reason for an absence from work for 5 consecutive workdays is considered to have resigned effective as of the last day of work. Automatic resignation may be considered grounds for issuing a notice of disqualification for future employment. C. An Executive Service or Commission Plan employee who resigns may be granted severance pay at the discretion of the Secretary. #### Regulation .05 Probation. *COMAR 11.02.02.05* A. Career Service employees initially hired into the Transportation Service shall serve a 6-month probation period, unless another period is specified before recruitment for the position. A supervisor, with the concurrence of the appointing authority or the appointing authority's designee, may extend the probation period for an additional period not to exceed the length of the original probation period, or may shorten the probation period. B. A Career Service employee who is promoted is required to serve a probation period in the new classification not to exceed 6 months, unless another period is specified before recruitment for the position. A supervisor may, with the concurrence of the appointing authority or the appointing authority's designee, extend the promotional probation period for an additional period not to exceed the length of the original promotional probation period, or may shorten the probation period. C. An employee reinstated into a classification other than the employee's former classification may be required to serve a 6-month probation, unless another period is specified before recruitment for the position. A supervisor, with the concurrence of the appointing authority or the appointing authority's designee, may extend the probation period for an additional period not to exceed the length of the original probation, or may shorten the probation period. D. Current Department employees who convert into the Transportation Service and who have satisfactorily completed a probation period are not required to serve an additional probation period as a result of the conversion. E. Current Department employees who are on probation and who convert into the Transportation Service shall serve probation under its original terms. F. An employee who, in the judgment of the supervisor, is not satisfactorily performing the job duties may be rejected from a Career Service position with the Transportation Service with the concurrence of the appointing authority. G. An employee rejected on probation shall be provided at least 2 weeks notice unless, in the judgment of the appointing authority, the employee's continued presence on the job would be contrary to the best interests of the Department. H. Written Notice. The appointing authority shall provide the employee, in writing, with the reason or reasons for the rejection on probation, the effective date of the rejection on probation, and the appropriate appeal routes, including the time frame for appeal to the Office of Administrative Hearings. I. An employee rejected on promotional probation shall be returned to the employee's previous position if vacant. If the previous position is not vacant, the appointing authority, at the appointing authority's discretion, may place the employee in any vacancy in the previous classification. J. Appeal of Rejection on Probation. (1) An employee may appeal a rejection on probation in writing to the Office of Administrative Hearings, with a copy to the appointing authority, within 5 work days of receipt of the written notice of rejection. Work days do not include Saturdays, Sundays, and observed holidays. The Secretary of Budget and Management or a designated representative shall allow either party 15 days from the date of the Office of Administrative Hearings' proposed decision to file exceptions to the proposed decision. (2) A police officer serving an initial probationary period as a police officer, or a rejected employee serving a probation period as set forth in §A or C of this regulation, shall be afforded an opportunity for a hearing which is limited to the legal and constitutional basis for the rejection. (3) A rejected employee serving a promotional probation period as set forth in §B of this regulation shall be offered a hearing on the merits of the rejection. (4) The burden of proof in an appeal of rejection on probation is as set forth in COMAR 11.02.08.10J. K. Police officers initially hired into the Transportation Service may be required by the appointing authority to serve a 2-year probationary period, and may be promoted during the probationary period at the discretion of the appointing authority. #### Regulation .06 Service Credits. *COMAR 11.02.02.06* A. An employee of the Department who converts into the Transportation Service shall retain credit for years of service credited by the Department to the employee at the time of conversion. B. State employees who are hired into the Transportation Service shall receive credit for years of State service. C. Contractual and temporary employees who are hired into a Transportation Service position shall receive service and leave earning rate credit for the period of their uninterrupted contractual, temporary, or contractual and temporary service which took place immediately before their appointment to a Transportation Service position. #### Regulation .07 Voluntary Demotion. *COMAR 11.02.02.07* An employee may request a voluntary demotion without prejudice, which may be granted at the discretion of the appointing authority or the appointing authority's designee. #### Regulation .08 Background Investigation. *COMAR 11.02.02.08* A. The appointing authority or the appointing authority's designee shall make a determination regarding the necessity of investigating the background of n eligible individual for purposes of verification of suitability for employment. When appropriate and job-related, areas of investigation may include, but are not limited to, employment history, academic credentials, military records, criminal conviction records, and personal references. B. In conducting the background investigation, the appointing authority or the appointing authority's designee shall: (1) Provide written notification to the eligible individual that: (a) A background investigation may be conducted; and (b) Consequences for fraudulent or irregular information may include, but are not limited to, nonselection, removal from the list of eligibles, termination of employment in situations where employment has begun, and criminal prosecution; and (2) Obtain a release of information form signed by the eligible individual. C. The appointing authority or the appointing authority's designee may investigate the qualifications and background of an individual who has been offered or appointed to a position. If the appointing authority or the appointing authority's designee discovers that the individual provided fraudulent or irregular information in taking an examination or in any part of the appointment process, the appointing authority may take any of the following actions before the individual begins work: (1) Remove the individual from the eligibility list; (2) Withdraw the offer; or (3) Withdraw the appointment. #### Regulation .09 Denial of Promotional Opportunity While on Sick or Maternity Leave. *COMAR 11.02.02.09* A. Applicability. This regulation applies to all Transportation Service employees except contractual employees. B. An employee may not be denied the opportunity to seek, qualify for, or receive any promotion solely because the employee is on leave for maternity reasons or on leave due to illness or injury, if the employee is expected to return to work 60 days after receiving a request to call for an interview for the position. ### Chapter 03 — Leave Benefits **Authority:** State Personnel and Pensions Article, §§9-1106 and 9-1108;Transportation Article, §§2-102 and 2-103.4; Annotated Code of Maryland **Administrative History:** Effective date: January 18, 1993 (20:1 Md. R. 27) **Administrative History:** Regulation .01B amended effective December 30, 1996 (23:26 Md. R. 1860) **Administrative History:** Regulation .02 amended effective August 30, 1993 (20:17 Md. R. 1346) **Administrative History:** Regulation .03 amended effective December 30, 1996 (23:26 Md. R. 1860); May 3, 2010 (37:9 Md. R. 673) **Administrative History:** Regulation .03C amended effective August 30, 1993 (20:17 Md. R. 1346); September 12, 1994 (21:18 Md. R. 1509) **Administrative History:** Regulation .04 amended effective December 30, 1996 (23:26 Md. R. 1860) **Administrative History:** Regulation .04B amended effective August 24, 1998 (25:17 Md. R. 1361) **Administrative History:** Regulation .04B, G amended effective November 18, 2019 (46:23 Md. R. 1066) **Administrative History:** Regulation .04F amended effective August 30, 1993 (20:17 Md. R. 1346) **Administrative History:** Regulation .05 amended effective August 8, 2022 (49:16 Md. R. 758) **Administrative History:** Regulation .05C amended as an emergency provision effective January 6, 1997 (24:2 Md. R. 114); amended permanently effective March 24, 1997 (24:6 Md. R. 486) **Administrative History:** Regulation .05F amended effective December 30, 1996 (23:26 Md. R. 1860) **Administrative History:** Regulation .06B amended effective October 7, 1996 (23:20 Md. R. 1424); November 22, 2004 (31:23 Md. R. 1653) **Administrative History:** Regulation .07 amended effective August 30, 1993 (20:17 Md. R. 1346); September 12, 1994 (21:18 Md. R. 1509); December 30, 1996 (23:26 Md. R. 1860) **Administrative History:** Regulation .07B amended effective August 24, 1998 (25:17 Md. R. 1361); May 17, 1999 (26:10 Md. R. 798); December 22, 2003 (30:25 Md. R. 1849); March 3, 2025 (52:4 Md. R. 219) **Administrative History:** Regulation .07G amended effective May 17, 1999 (26:10 Md. R. 798) **Administrative History:** Regulation .08 amended effective September 12, 1994 (21:18 Md. R. 1509) **Administrative History:** Regulation .08 adopted effective March 3, 2025 (52:4 Md. R 219) **Administrative History:** Regulations .08, .09, and .11—.18 recodified to be Regulations .09, .10, and .12—.19 effective March 3, 2025 (52:4 Md. R 219) **Administrative History:** Regulation .08H, P amended effective August 30, 1993 (20:17 Md. R. 1346) **Administrative History:** Regulation .10 recodified to Regulation .11 effective March 3, 2025 (52:4 Md. R. 219) **Administrative History:** Regulation .10A amended effective February 11, 2019 (46:3 Md. R. 107) **Administrative History:** Regulation .10D adopted effective February 11, 2019 (46:3 Md. R. 107) **Administrative History:** Regulation .12D amended effective September 12, 1994 (21:18 Md. R. 1509); December 30, 1996 (23:26 Md. R. 1860) **Administrative History:** Regulation .15 amended effective December 30, 1996 (23:26 Md. R. 1860); May 3, 2010 (37:9 Md. R. 673) **Administrative History:** Regulation .16 amended effective May 3, 2010 (37:9 Md. R. 673) **Administrative History:** Regulation .17 adopted effective September 12, 1994 (21:18 Md. R. 1509) **Administrative History:** Regulation .18 adopted effective April 6, 2009 (36:7 Md. R. 525) **Administrative History:** Regulation .20 adopted effective March 3, 2025 (52:4 Md. R 219) #### Regulation .01 Definitions. *COMAR 11.02.03.01* A. In this chapter, the following terms have the meanings indicated. B. Terms Defined. (1) “Allotted leave” means a benefit which the Department is either required to provide, for example, personal leave, or which the Department has the option of providing, for example, advanced sick leave. (1-1) “Disaster service leave” means leave with pay that may be allotted to an employee to serve during a disaster. (1-2) “Donated leave” means leave donated under the Employee-to-Employee Leave Donation Program specified in Regulation .15 of this chapter by one employee to another employee for a serious and prolonged medical condition. (2) “Earned leave” means a benefit which an employee obtains by performing work, for example, annual leave. (3) “Employee” means a member of the Career Service, Commission Plan, or Executive Service. (4) “Full-time employee” means an employee whose standard workweek is at least 40 hours during a 7-day period between Wednesday and Tuesday. (5) “Leave” means an approved absence from work, with a minimum use rate of 0.1 hour. (5-1) “Leave bank leave” means leave granted to an employee who is a member of the State Employees' Leave Bank, as specified in Regulation .15 of this chapter, for a serious and prolonged medical condition. (6) “Leave with pay” means leave during which an employee receives compensation. (7) “Leave without pay” means leave during which an employee does not receive cash compensation. (8) “Overtime” means time spent performing work in excess of 40 hours during a 7-day period between Wednesday and Tuesday or in excess of a tour of duty designated by the appointing authority or the appointing authority's designee for law enforcement or fire protection personnel. (9) “Part-time employee” means an employee whose standard work hours are less than 40 hours per workweek, and whose fringe benefits are prorated to the extent applicable by law. (10) “Workday” means the number of hours specified by an appointing authority or the appointing authority's designee in an employee work schedule. #### Regulation .02 Leave Approval. *COMAR 11.02.03.02* A. The appointing authority or the appointing authority's designee shall establish written procedures for requesting leave, approval of leave, and notification of absence, and shall ensure that each employee is given notice of the procedures. B. Emergency Use of Sick Leave. In medical emergencies, accumulated sick leave may be used without prior approval. The employee's supervisor shall be notified of the emergency as soon as possible. #### Regulation .03 Annual Leave. *COMAR 11.02.03.03* A. Annual leave is a form of earned leave with pay. B. Eligibility. (1) An employee is eligible to earn annual leave as set forth in §C of this regulation. (2) Use of Annual Leave. (a) With appropriate approval, an employee with at least 6 months of service may use accumulated annual leave for any purpose. (b) Employees with less than 6 months of service may not use annual leave. C. Rates of Earning. Employees shall earn annual leave at the following rates: (1) Upon employment and through the completion of the 5th year of service, an employee shall earn annual leave at the rate of 1.0 hour of leave for each 26 hours worked, and may not earn more than 10 days of annual leave per calendar year; (2) From the beginning of the 6th year of service through the completion of the 10th year, an employee shall earn annual leave at the rate of 1.5 hours of leave for each 26 hours worked, and may not earn more than 15 days of annual leave per calendar year; (3) From the beginning of the 11th year of service through the completion of the 20th year, an employee shall earn annual leave at the rate of 2 hours of leave for each 26 hours worked, and may not earn more than 20 days of annual leave per calendar year; (4) With the exception of §C(5) of this regulation, beginning with the 21st year of service and continuing after that, an employee shall earn 2.5 hours of annual leave for each 26 hours worked, and may not earn more than 25 days of annual leave per calendar year. (5) A Department employee who, as of the date of conversion into the Transportation Service, is earning annual leave at a rate greater than that set forth in §C(1)—(4) of this regulation, shall continue to earn annual leave at the former rate or a higher rate if eligible until separation from employment with the Department; (6) For annual leave earning rate purposes, a former Department employee's entrance on duty date shall be adjusted upon reinstatement to allow for the same earning power date that was in effect at the time of separation. (7) Periods of paid leave, except for extended sick leave and advanced sick leave shall be included in hours worked for the purpose of calculating annual leave earnings. D. Limitations Applying to the Calculation of Annual Leave Earnings. (1) Overtime hours worked may not be used to compute annual leave earnings for full-time employees. (2) Hours worked beyond the maximum allowed by the percentage of employment for a part-time employee's position may not be used to compute annual leave earnings. E. Accumulation of Forwarding of Annual Leave Earnings. A maximum of 75 days or 600 hours of annual leave may be carried into a new calendar year. F. Transferring Annual Leave. (1) An employee of another State department or agency who is hired into the Transportation Service without a break in service may transfer a maximum of 70 days of accumulated annual leave. (2) An employee who separates from the Department and is hired without a break in service by another State department or agency shall transfer any accumulated annual leave up to the maximum allowed by that State department or agency. G. Payment Upon Separation. (1) An employee of the Department with at least 6 months of continuous service who separates from State employment shall be paid for unused, accumulated annual leave based on the remaining number of unused annual leave days that were accrued at the end of the previous calendar year, not exceeding 50 days or 400 hours of the total, plus the remaining number of unused annual leave days that were accrued during the calendar year in which the employee's State employment terminates. (2) The amount paid shall equal the last permanent hourly rate multiplied by the number of annual leave hours available at the time of separation after calculating the amount under §G(1) of this chapter. H. A previous State employee, who is hired into the Transportation Service within 5 years from the date of separation from State service, shall be entitled to restoration of leave earning rates based on years of former service. I. Forfeiture. Accumulated and unused annual leave in excess of the amounts specified in §§D(2) and E of this regulation shall be forfeited. J. The Secretary may, under extraordinary circumstances, compensate employees who lose annual leave. #### Regulation .04 Personal Leave. *COMAR 11.02.03.04* A. Personal leave is a form of allotted leave with pay. B. Allotment. (1) A full-time employee shall be allotted 7 days of personal leave per calendar year. (2) A full-time employee hired after June 30 of a calendar year shall be allotted 3 personal leave days for that calendar year. (3) A full-time employee hired after November 30 of a calendar year shall be allotted 1 personal leave day for that calendar year. (4) For each calendar year that is a leap year, a full-time employee shall be allotted 8 days of personal leave. (5) A part-time employee shall be allotted a percentage of personal leave equal to the percentage that the employee's part-time position is funded. (6) An employee may not be allotted personal leave while the employee is on extended sick leave. C. Use of Personal Leave. (1) With appropriate approval, an employee may use personal leave for any purpose. (2) Each administration shall establish written procedures for the approval of personal leave. The Secretary shall approve the written procedures. (3) Approval may be denied only if the denial is necessary as a result of a critical shortage of staff. D. Accumulation. (1) Personal leave may not be accumulated. (2) Unused personal leave shall be forfeited at the end of each calendar year, or upon termination of employment with the State. E. Transfer of Personal Leave. (1) An employee who is hired without a break in service by another State department or agency may transfer unused personal leave up to the limits allowed by that department or agency. Unused personal leave in excess of the amount authorized to be transferred shall be forfeited. (2) An employee who is hired by the Department from another State department or agency without a break in service may not transfer any unused personal leave, but shall be allotted personal leave based on the date of hire. F. Reinstatement. (1) An employee who is reinstated into the Transportation Service before June 30 of the same calendar year in which the employee left shall be credited with the employee's unused personal leave. (2) An employee who is reinstated into the Transportation Service after June 30 of the same calendar year in which the employee left shall be credited with a maximum of 3 days of the employee's unused personal leave. (3) An employee who is reinstated into the Transportation Service after November 30 of the same calendar year in which the employee left shall be credited with a maximum of 1 day of the employee's unused personal leave. G. Payment for Unused Personal Leave. (1) An employee who has perfect attendance for a full calendar year shall be paid for all unused personal leave up to a maximum of 3 days, based on the amount of personal leave that was not used in the calendar year. (2) For an employee to have perfect attendance, the employee may not have: (a) Used earned or allotted sick leave, except for a death in the family; (b) Used work injury leave; (c) Been placed on disciplinary suspension or disciplinary loss of leave; (d) Been on leave without pay; or (e) Used annual or compensatory leave which was not requested and approved before the end of the employee's previous shift, unless the: (i) Leave was taken under officially declared liberal leave, or (ii) Employee reported to work and the leave was approved by the supervisor. (3) The appointing authority or the appointing authority's designee may grant payment under this section to an employee whose lack of perfect attendance is solely and directly attributed to a disability as defined in the Americans With Disabilities Act of 1990, 42 U.S.C. §§12101—12213. (4) Payment under this section is subject to the budgetary constraints of the Department. #### Regulation .05 Holiday Leave. *COMAR 11.02.03.05* A. Holiday leave is a form of allotted leave with pay. B. Observed Holidays. The holidays observed by the Department are: (1) New Year's Day — January 1; (2) Dr. Martin Luther King, Jr.'s Birthday — January 15, unless the United States Congress designates another day; (3) Presidents' Day — third Monday in February; (4) Memorial Day — May 30, unless the United States Congress designates another day; (5) Juneteenth National Independence Day — June 19, unless the United States Congress designates another day; (6) Independence Day — July 4; (7) Labor Day — first Monday in September; (8) Columbus Day — October 12, unless the United States Congress designates another day; (9) Veterans' Day — November 11; (10) Thanksgiving Day — fourth Thursday in November; (11) Christmas Day — December 25. C. In addition to the holidays identified in §B of this regulation, employees are authorized to use holiday leave for all days of general and congressional elections, but not primary elections, throughout the State, and each other day that the President of the United States or the Governor designates for the general cessation of business. D. Part-time employees are allotted holiday leave computed on the basis of the funded percentage of their part-time positions. E. Conditions Affecting the Allotment and Use of Holiday Leave. (1) Holidays Falling on a Weekend. If a holiday falls on a Saturday, the Friday immediately preceding is considered and treated as a holiday. If a holiday falls on a Sunday, the following Monday is considered and treated as a holiday. (2) Requirements for Essential Services. In units providing 7-day-a-week service, holidays shall be scheduled by the appointing authority or the appointing authority's designee. (3) Working on Holidays. An employee who is required to work on a scheduled holiday, as set forth in §B of this regulation, shall be compensated either by cash overtime or compensatory leave, depending upon the employee's eligibility as determined by the Secretary or the Secretary's designee in accordance with standards established by the Fair Labor Standards Act. (4) Employees on Advanced and Extended Sick Leave. (a) Employees on advanced sick leave shall be allotted holiday leave. (b) Employees on extended sick leave shall not be allotted holiday leave. (5) Work Status. To be entitled to holiday leave, an employee shall be in a paid status on either the scheduled workday before or the scheduled workday after the holiday is observed. #### Regulation .06 Compensatory Leave. *COMAR 11.02.03.06* A. Compensatory leave is a form of earned leave with pay. B. Eligibility and Use of Compensatory Leave. (1) Employees designated by the Secretary or the Secretary's designee may earn compensatory leave which, with appropriate approval, may be used for any purpose. (2) Employees in the standard pay plan who are exempt under the Fair Labor Standards Act shall earn compensatory leave for any time worked in excess of the normal workday if the employee worked at least 1/2 hour in excess of the normal workday, including the first 1/2 hour. (3) At the discretion of the Secretary, employees eligible for cash overtime, and who have been designated by the Secretary or the Secretary's designee as eligible to elect to earn compensatory time, may choose to earn and use compensatory time in accordance with written criteria established by the Secretary and consistent with the Fair Labor Standards Act. (4) Employees who are included in the Department's executive salary plan at ES levels up through and including ES grade 5, or compensated at an equivalent flat rate, shall earn compensatory leave for any time worked in excess of the first hour beyond their normal workday, including the first hour. (5) Employees who are included in the Department's executive salary plan at the ES-6 level and above, or compensated at an equivalent flat rate, shall earn 1 compensatory leave day for working 5 or more hours on an observed holiday, and may not earn other compensatory leave. (6) The use of compensatory leave by AG employees shall be in accordance with policies set by the Attorney General. C. Transferring Compensatory Leave. An employee who transfers from one administration to another within the Department may transfer any accumulated compensatory leave earnings. D. Subject to Regulation .14 of this chapter, upon separation from the Department, an employee shall be paid for up to 25 percent of unused compensatory leave, and payment for unused compensatory leave may not exceed 5 days. E. Compensatory leave not used is forfeited 1 year from the date earned. F. An employee converting into the Transportation Service may transfer all accumulated compensatory leave. Transferred compensatory leave not used is forfeited 1 year from the original date earned. G. The Secretary may, under extraordinary circumstances, compensate employees who lose compensatory leave. The Secretary shall establish written criteria and procedures for the payment of unused compensatory leave. #### Regulation .07 Sick Leave. *COMAR 11.02.03.07* A. Types of Sick Leave. (1) Definition. “Occurrence” means each period of sick leave, regardless of duration, used for the reasons set forth in §B(2) of this regulation. (2) Sick leave is a form of earned leave with sick pay. (3) Advanced and extended sick leave are forms of allotted leave with sick pay. (4) Payment for sick leave, advanced sick leave, or extended sick leave taken for the employee's personal illness, injury, or medical disability constitutes a separate benefit on account of sickness, and is not a continuation of salary. B. Eligibility. (1) Rate of Earning and Accumulation. (a) Upon employment, an employee shall earn 1.5 hours of sick leave for each 26 hours worked, and may accumulate up to 15 days of sick leave per calendar year. (b) Periods of paid leave, except for extended sick leave, advanced sick leave, donated leave, and leave bank leave, are to be included in hours worked for the purpose of calculating sick leave earnings. (2) Use. With appropriate notification, an employee may use accumulated sick leave for: (a) Injury, illness, or other medical disability; (b) A medical or dental appointment for the employee or immediate family member, that is, an employee's spouse, child, parent or a parent of an employee's spouse, others who took the place of parents, brothers and sisters of an employee or an employee's spouse, and other relatives living as members of the employee's household; (c) Medical care and treatment of an employee's immediate family; or (d) Any other use authorized by this regulation. (3) Care of Newborn or Adoptive Child. (a) An employee may use one occurrence of earned sick leave without the necessity for medical certification to care for the employee's newborn child or to care for a child placed with the employee for purposes of adoption. (b) The sick leave taken: (i) Shall be consecutive workdays; (ii) May be used only within 1 year from the date of the birth or placement for purposes of adoption of a child; and (iii) May not exceed 20 workdays. (c) Additional time needed to care for a child requiring more than the 20 days of care allowed by §B(3)(b)(iii) of this regulation may be requested under other leave provisions. C. Limitation Applying to the Calculation of Sick Leave Earnings. Hours worked in excess of hours regularly scheduled in a normal workweek may not be applied in computing sick leave earnings. D. There is no limitation on the amount of unused sick leave which an employee may carry forward from one calendar year to another. E. Transferring Sick Leave. A Department employee converting into the Transportation Service, or an employee in State service who is hired into the Transportation Service from another State department or agency, shall transfer any advanced sick leave obligations, and may transfer any unused sick leave. F. Restoration of Sick Leave. (1) Upon reinstatement within 2 years, a former Department employee is entitled to restoration of unused sick leave. (2) A previous State employee who is hired into the Transportation Service within 2 years from the date of separation from State service is entitled to restoration of unused sick leave. G. Sick Leave Certificates. (1) Definition. In this section, “sick leave certificate” means a written certification from individuals specified in §G(6) of this regulation which verifies any illness of an employee or illness of a member of the employee's immediate family which necessitates the employee's absence from work for a specified period of time. (2) 5-Day Sick Leave Certificates. (a) An employee shall submit an original 5-day sick leave certificate signed as specified in §G(6) of this regulation for any illness requiring an absence from work for 5 or more consecutive workdays. The certificate shall specify the period covered by the illness and the prognosis regarding the employee's ability to return to work. (b) An employee shall submit an original 5-day sick leave certificate verifying the necessity for an absence of 5 or more consecutive workdays from work when the absence is required in connection with the care and treatment of an employee's immediate family member. (3) 1-Occurrence Sick Leave Certificates. (a) If an employee has been absent from work for 6 or more undocumented occurrences within a 12-month period for causes requiring the use of earned sick leave, the appointing authority or the appointing authority's designee may require an employee to submit a 1-occurrence sick leave certificate to verify any subsequent use of earned sick leave for 1 or more occurrences. (b) The requirement to submit a 1-occurrence sick leave certificate applies for a period of at least 6 months. (c) An employee shall be provided with a written notice stating the starting and ending dates for the period during which 1-occurrence sick leave certificates are required. (4) Other Sick Leave Certificate Submission Requirements. When an illness of 1 day or more occurs during a period of previously approved annual, personal, or compensatory leave, the use of sick leave to cover the period of illness may be authorized, if the employee presents a sick leave certificate. (5) Limitations on Requiring 1-Occurrence Sick Leave Certificates. Use of sick leave in connection with a medical appointment for an employee, a death in an employee's family, a birth of an employee's child, or an adoption may not be included as a sick leave occurrence for the purpose of establishing a 1-occurrence sick leave certificate requirement. (6) Sick Leave Certificate Authentication. Original sick leave certificates shall be signed or certified by one of the following or their designee: (a) Licensed physician; (b) Accredited Christian Science practitioner; (c) Physical therapist; (d) Clinical psychologist; (e) Dentist; (f) Oral surgeon; (g) Chiropractor; (h) Podiatrist; (i) Certified nurse practitioner; (j) Certified nurse midwife; (k) Licensed clinical social worker; or (l) Optometrist. H. Advanced Sick Leave. (1) Advanced sick leave is a form of allotted leave with pay, and shall be repaid. (2) Eligibility. (a) An employee with a minimum of 1 year of continuous State service at the time of the request who has exhausted all accumulated annual, personal, sick, and compensatory leave available may request an allotment and use of up to 60 working days of advanced sick leave within a 24-month period for a serious health condition, as defined in COMAR 11.02.13.02B(14). (b) The initial 24-month period begins with the first allotment of advanced sick leave while employed in the Transportation Service. (c) An employee's total advanced sick leave debt may not exceed 60 days at any one time. (d) A minimum of 10 working days of advanced sick leave shall be granted to an employee. (e) An employee who will be unable to return to work at any time is no longer eligible for advanced sick leave. (f) An employee who has been advanced the maximum 60 days of advanced sick leave may not be allotted more until the 60 days has been repaid. (g) An employee may not be allotted an amount of advanced sick leave which would bring the employee's total time out to 1 year or more. For purposes of the 1-year maximum time out, an employee shall return to work for a continuous period of 160 hours, not counting holidays, leave, or scheduled time off. (3) An employee on advanced sick leave may not earn annual leave. (4) Before applying for advanced sick leave, an employee shall apply to the Employee-to-Employee Leave Donation Program and the State Employees' Leave Bank. (5) Advanced sick leave shall be counted against an employee's FMLA entitlement, as set forth in COMAR 11.02.13. (6) Personal Leave. (a) Personal leave shall be allotted to an employee on advanced sick leave, but may not be used by the employee. (b) Personal leave allotted during an employee's advanced sick leave shall be deducted from the employee's advanced sick leave debt. (7) Approval of a request for an allotment and use of advanced sick leave is at the discretion of the Secretary or the Secretary's designee. The Secretary or Secretary's designee may request the Department Medical Advisor to determine the medical necessity and duration of the advanced sick leave. (8) The Department Medical Advisor may require the employee to submit to a medical examination. Requests for advanced sick leave may not be granted if the employee refuses to submit to a medical examination. (9) Repayment. (a) Employee acceptance of an allotment of advanced sick leave constitutes an agreement to repay the Department for compensation received while using this leave, which remains binding even if the employee terminates employment with the Department. (b) Reimbursement to the Department shall be made at the minimum rate of 1/2 of the rate of sick leave and annual leave earned. In addition, the employee may apply credited annual leave, personal leave, sick leave, compensatory leave, or cash to the amount owed. (c) Leave earned or allotted during periods of advanced sick leave is to be deducted from the advanced sick leave debt of the employee. (d) Repayed advanced sick leave is not credited to the 60-day maximum entitlement. (10) Waiver of Repayment. Repayment is not required: (a) From an employee's estate; or (b) On separation from the Department for any part of an advanced sick leave debt that was incurred under the State Personal Management System before June 5, 1995. I. Extended Sick Leave. (1) Extended sick leave is a form of allotted leave with pay. (2) Specific Illness. (a) At the discretion of the appointing authority or the appointing authority's designee, an employee with at least 5 years of service may be granted extended sick leave for a period of up to 90 days to bridge the time necessary to process an application for retirement necessitated by a medical disability. (b) The employee shall provide medical documentation that the previous earned sick leave used was for the illness or related conditions necessitating the request for extended sick leave. (3) In order to be eligible for extended sick leave, an employee shall exhaust all other leave, except advanced sick leave. (4) The employee shall file a written request to the appointing authority or the appointing authority's designee on a form prescribed by the Secretary. (5) All medical information shall be sent directly to the Department Medical Advisor by the employee's physician. (6) If requested by the appointing authority or the appointing authority's designee, the Department Medical Advisor shall determine the medical necessity and the duration of the extended sick leave, not to exceed the limits set forth in §I(2) of this regulation. In making this determination, the Department Medical Advisor may require the employee to submit to a medical examination. (7) Requests for extended sick leave may not be granted if the employee refuses to submit to a medical examination. (8) An employee on extended sick leave may not earn annual leave. (9) An employee on extended sick leave may not be allotted personal leave. (10) Before applying for extended sick leave, an employee shall apply to the Employee-to-Employee Leave Donation Program and the State Employees' Leave Bank, and any leave received under these programs shall be deducted from the 90-day maximum allowance of extended sick leave. (11) Extended sick leave shall be counted against an employee's FMLA entitlement, as set forth in COMAR 11.02.13. (12) An employee may not be allotted an amount of extended sick leave which would bring the employee's total time out to 1 year or more. For purposes of the 1-year maximum time out, an employee shall return to work for a continuous period of 160 hours, not counting holidays, leave, or scheduled time off. (13) An employee applying for extended sick leave under this section may not return to work and shall present evidence of application for retirement. (14) Review of Requests for Extended Sick Leave. (a) The appointing authority or the appointing authority's designee, or a board established by the Secretary, shall review all requests for extended sick leave. (b) Requests may be denied for medical reasons only upon the recommendation of the Department Medical Advisor. (c) Requests may also be denied for job performance-related reasons as documented by the appointing authority or the appointing authority's designee. #### Regulation .08 Bereavement Leave. *COMAR 11.02.03.08* A. Definitions. (1) “Bereavement leave” means a form of allotted leave with pay that can only be used for the death of an employee’s family member. (2) “Immediate family” means the following individuals related to the employee or an employee’s spouse: (a) Children, foster children, or stepchildren; (b) Parents, stepparents, foster parents, others who took the place of parents, or legal guardians; (c) Brothers or sisters; (d) Grandparents or grandchildren; and (e) Other relatives living as members of the employee's household. (3) “Child” means an adopted, biological, or foster child, a stepchild, or a legal ward, who is at least 6 months old and younger than 27 years old. (4) Infant means an adopted, biological, or foster child, a stepchild, or legal ward, who is younger than 6 months old. B. Eligibility. (1) Death in an Employee's Immediate Family. A maximum of 5 days may be charged to sick leave in the event of a death in the immediate family of an employee or an employee's spouse. (2) Bereavement Leave. An employee may elect to receive up to 3 days of bereavement leave with pay and 2 days sick leave on the death of the following family members: (a) Spouse of the employee; (b) Children, including foster children and stepchildren of the employee or employee’s spouse; (c) Parents, stepparents, or foster parents of the employee; (d) Brothers and sisters of the employee; and (e) Grandparents and grandchildren of the employee. (3) An employee may receive up to 10 days of bereavement leave with pay within 60 days after the death of the employee’s child. (4) An employee may receive up to 60 days of bereavement leave with pay within 60 days after: (a) The employee experiences a stillbirth, or; (b) The death of the employee’s infant. (5) An employee may use parental bereavement leave only after notifying the employee’s appointing authority of the employee’s intention to use parental bereavement leave. An employee’s appointing authority may not require an employee entitled to parental bereavement leave to use any other paid leave available to the employee. (6) Death of Employee's Other Relatives. A maximum of 1 day may be charged to sick leave in the event of the death of one of the following relatives: (a) Aunts and uncles of an employee or spouse; (b) Nephews and nieces of an employee or spouse; (c) Brothers-in-law and sisters-in-law of an employee or spouse; and (d) Sons-in-law and daughters-in-law. (7) If the sick leave required in connection with a death in a family is in excess of the limits specified, an employee may, with appropriate approval, use accumulated annual, personal, or compensatory leave. #### Regulation .09 Work Injury Leave. *COMAR 11.02.03.09* A. Definition. (1) In this regulation, “injury” means an accidental personal injury occurring during the performance of an employee's actual job duties. (2) “Injury” does not include occupational diseases. B. Work injury leave with sick pay is leave that is allotted to an employee who, in the actual performance of the employee's job duties, sustains an injury which is determined to be compensable according to the Maryland Workers' Compensation Law, Labor and Employment Article, §§9-1019-1201, Annotated Code of Maryland. C. The injured employee or someone on the employee's behalf shall provide notice of the injury to the employee's appointing authority or the appointing authority's designee immediately after the injury occurs. D. Work injury leave with sick pay may be allotted only if the following conditions are met: (1) The injury occurred in the actual performance of the employee's job duties; (2) The injury is determined to be compensable under the Maryland Workers' Compensation Law, Labor and Employment Article, § 9-1019-1201, Annotated Code of Maryland; (3) A physician verifies the employee's injury and inability to work; and (4) The Department Medical Advisor verifies the medical necessity and specifies the duration of the employee's absence from work. E. Allotment. Starting with the first full workday, work injury leave with sick pay may be provisionally allotted pending a determination of compensability by the Workers' Compensation Commission or, in the absence of a Workers' Compensation Commission order, by the Injured Workers' Insurance Fund. F. The injured employee's appointing authority or the appointing authority's designee shall file an Employer's First Report of Injury with the Injured Workers' Insurance Fund, the Workers' Compensation Commission, and the Division of Labor and Industry immediately after receipt of the notice of the injury as set forth in §C of this regulation. G. If the Workers' Compensation Commission determines the injury to be noncompensable or, in the absence of a determination by the Workers' Compensation Commission, the Injured Workers' Insurance Fund determines the injury to be noncompensable, then work injury leave with sick pay provisionally allotted shall be rescinded and the employee's accumulated leave balance shall be adjusted to cover that period of time. H. Rate of Payment. (1) Work injury leave with sick pay is paid at the rate of 66 2/3 percent of the employee's gross pay starting with the first full workday. (2) For work injuries occurring on or before June 30, 1994, that are compensable under this regulation, work injury leave with sick pay is paid at the rate of 70 percent of the employee's gross pay. (3) The rates set forth in §H(1) and (2) of this regulation may be adjusted to conform to any Internal Revenue Service rulings or judicial decisions. (4) Payment for work injury leave constitutes a separate benefit on account of an accidental personal injury occurring during the performance of an employee's actual job duties and is not a continuation of salary. I. The Department's Medical Advisor is responsible for evaluating the employee's medical claim and making an initial determination as to approval within 10 workdays of the employee's injury. In making this evaluation, the Department Medical Advisor may require the employee to submit to a medical examination. The Department Medical Advisor shall file a report stating the findings and conclusions with the appointing authority or the appointing authority's designee and the Injured Workers' Insurance Fund. J. Requests for work injury leave may not be granted if the employee refuses to submit to a medical examination. K. The Injured Workers' Insurance Fund shall determine whether the claim is compensable under Maryland Workers' Compensation Law within 30 calendar days after the Injured Workers' Insurance Fund receives the employer's report of injury. L. Acceptance of work injury leave constitutes an agreement to repay the Department for all work injury leave allotted if the injury is determined to be noncompensable as specified in §G of this regulation. This agreement remains in force upon separation from the Department. M. Acceptance of work injury leave constitutes an agreement by the employee that the Department, after notice to the injured employee, has the exclusive right of subrogation to the rights of the injured employee against any third person who may have caused the compensable injury to the extent of the compensation paid or owed to the injured employee under this regulation. N. Exhaustion of Work Injury Leave. (1) After work injury leave has been exhausted and an employee is receiving temporary total benefits, the employee may apply for a leave of absence—illness, as specified in Regulation .12D of this chapter. (2) During a period of leave of absence—illness granted under this section, the Department shall pay the employee's portion as well as the State's subsidy for health care coverage for the first 60 workdays and the State's subsidy only for up to a total of 2 years, including the original 60 workdays. (3) An employee on leave of absence—illness shall provide continuing medical documentation to the Department. (4) The Department may request a review of the employee's medical condition by the Medical Advisor. (5) An employee may not be eligible for health care coverage as provided in §N(1) of this regulation if the employee refuses to submit to a medical examination requested by the Medical Advisor. O. An injured employee may be entitled to temporary total benefits for loss of wages according to the Workers' Compensation Law only after all available work injury leave has been used. P. Medical and hospital expenses may be paid on behalf of an injured employee who is on work injury leave or leave with pay, according to the Workers' Compensation Law. Q. Work injury leave may be used for continuing treatment for the injury for which the leave was granted, and may be used only for time taken within an employee's scheduled shift, including reasonable travel time. R. Work injury leave terminates on a date specified by the Department's Medical Advisor. Work injury leave may not extend beyond 1 year from the date of injury. #### Regulation .10 Administrative Leave. *COMAR 11.02.03.10* A. Administrative leave is a form of allotted leave with pay. B. Allotment. (1) Administrative leave may be allotted according to §B(2)—(5) of this regulation. (2) Emergency Releases. Employees may be released from work without charge to earned leave when emergency conditions exist, as specified in COMAR 01.01.1981.10, which is incorporated by reference. (3) State Job Examination/Interview. Employees may be granted up to 4 hours of administrative leave with pay to take a State or Department job examination, or to go to a State or Department job interview. In cases requiring travel to and from outlying areas, exceptions to the 4-hour limit may be granted. (4) Question Concerning Fitness for Duty. An employee, with approval of supervisory personnel designated by the appointing authority or the appointing authority's designee, may be relieved of assigned duties, placed on leave status, and allotted administrative leave during: (a) An investigation of an incident involving work-related conduct; or (b) The period required to make a determination as to the employee's medical fitness for continued duty. (5) Activities of Employee Organizations. (a) An employee who is an authorized member, officer, or delegate to a State employees' organization may be granted administrative leave to attend official organization events. (b) The use of administrative leave in connection with the activities of employees' organizations shall be assessed and, when considered appropriate, approved by the appointing authority or the appointing authority's designee. #### Regulation .11 Other Forms of Leave with Pay. *COMAR 11.02.03.11* A. When an employee has obtained appropriate supervisory approval and provided such documentation as may be required, leave with pay shall be authorized for the situations set forth in §§B—D of this regulation. B. Obligated Military Service. An employee who is a member of the organized Militia or the Army, Navy, Air Force, Coast Guard, or Marine Reserves, is entitled annually to not more than 30 days of leave for military training. C. Adjudicatory Proceedings. When an employee has been subpoenaed or summoned to appear in court in connection with a civil or criminal case, to appear in an administrative proceeding before an administrative body, called for jury duty, or for a deposition, and is not a party to the action being heard or a paid witness, the employee is entitled to leave with pay. D. Parental Leave. An employee who is the primary caregiver responsible for the care and nurturing of the employee’s child may, upon request, be granted up to 60 days of paid parental leave within 6 months following the birth of a child or adoption of a child younger than 6 years old. The employee shall exhaust all annual and personal leave before the employee may request parental leave to attain a total of 60 days of paid leave after the birth or adoption of a child. #### Regulation .12 Time Off for Religious Observances. *COMAR 11.02.03.12* A. An employee may use the following types of leave for religious observances: (1) Annual leave in accordance with Regulation .03 of this chapter; (2) Personal leave in accordance with Regulation .04 of this chapter; or (3) Compensatory leave in accordance with Regulation .06 of this chapter. B. If an employee is scheduled to work on a holiday or is employed by an administration which renders a service that is provided continuously on a 7-day-a-week basis, the employee's appointing authority or the appointing authority's designee shall make reasonable accommodation to the employee's request to use leave for religious observances if accommodation can be made without serious interference with the efficiency of the administration. If reasonable accommodation cannot be made, the appointing authority or the appointing authority's designee may deny the leave request. C. Earned Religious Observance Time. (1) The provisions of this section do not apply in an organizational unit which renders a service that is provided continuously on a 7-day-a-week basis. (2) An employee may submit to the employee's appointing authority a request to work extra time to compensate for time off for religious observances. If modifications in work schedules do not interfere with the efficient operation of the administration, the appointing authority shall give an employee, who elects to work extra time for time lost to meet religious requirements, the opportunity to work extra time. This extra time worked shall be granted as compensatory time off and may not be applied toward overtime pay. (3) An employee who is exempt from receiving overtime cash payments shall be granted equal hour-for-hour time off for religious observance. (4) An employee who is entitled to receive overtime payments shall be granted equal hour-for-hour time off for religious observance up to a maximum of 40 hours in any workweek. Time worked in excess of 40 hours in any workweek shall be granted at the rate of time and one-half for religious observance. (5) The appointing authority may adopt written policies, subject to the approval of the Secretary, which provide for exceptions to this section in the interest of the efficient operation of the agency. #### Regulation .13 Leave of Absence. *COMAR 11.02.03.13* A. A leave of absence is an authorized period of nonemployment with the Department during which the employee may be reinstated and be eligible for certain leave and salary considerations in accordance with COMAR 11.02.05. B. Eligibility. Employees who have satisfactorily completed an original probationary period, or employees who do not serve a probation but have completed 6 months of service with the Department, may be allotted a leave of absence when approved by an appointing authority or the appointing authority's designee. C. Limitations on the Length of Leaves of Absence. Except as provided in §F of this regulation, an employee may apply for a leave of absence without pay for a period of up to 2 years. D. Leave of Absence—Illness. (1) The appointing authority or the appointing authority's designee may approve a medically substantiated request for a leave of absence for temporary incapacitation due to physical or mental illness. (2) The employee shall submit with the request for a leave of absence—illness, a verification of the illness or injury signed or certified by one of the health care providers specified in Regulation .07G(6) of this chapter. (3) The employee's request may be referred to the Department's Medical Advisor for review and input. (4) Continuation of Health Care Coverage. (a) For the first 60 workdays of the leave of absence, an employee may request the Department to continue the employee's health care coverage. (b) The Department shall pay the employee's portion as well as the State's subsidy. (c) Acceptance of this continuation of health care coverage constitutes an agreement by the employee to repay the Department for the cost incurred. (d) This agreement remains binding even if the employee terminates employment with the Department. (5) Within the first 6 months of the leave of absence for illness, an individual shall be reinstated in the agency and in the classification the individual held at the time the leave of absence was granted. E. Leave of Absence—Personal. A personal leave of absence may be approved for any reason acceptable to an appointing authority or the appointing authority's designee. F. Leave of Absence—Military. (1) An appointing authority or the appointing authority's designee shall approve a request for a leave of absence for military service. (2) The duration of a military leave of absence is for the period of time an employee is on an original tour of duty, or on active duty. G. Leave of Absence—Education. (1) An employee who has been accepted as a full-time student at an accredited educational institution may apply for an education leave of absence. (2) The appointing authority or the appointing authority's designee may deny the request for an education leave of absence if it is not in the best interest of the Department. #### Regulation .14 Law Enforcement and Fire Protection Employees. *COMAR 11.02.03.14* The Secretary may establish procedures for conversion of leave earning rates and leave accumulation for law enforcement and fire protection employees. #### Regulation .15 Calculation and Payment of Overtime. *COMAR 11.02.03.15* The Secretary shall establish procedures governing the calculation and payment of overtime consistent with the Fair Labor Standards Act. #### Regulation .16 Leave Donation Program and Leave Bank. *COMAR 11.02.03.16* In accordance with State Personnel and Pensions Article, §§9-601—9-607, Annotated Code of Maryland, and COMAR 17.04.11.22 and 23, employees may participate in the Employee-to-Employee Leave Donation Program and the State Employees' Leave Bank. #### Regulation .17 Maryland Transit Administration Employee Leave Protections. *COMAR 11.02.03.17* Notwithstanding these regulations, employees who are protected under the provisions of Transportation Article, §7-605, Annotated Code of Maryland, shall be allowed to continue earning leave benefits in a manner consistent with that statute. #### Regulation .18 Family Medical Leave. *COMAR 11.02.03.18* Regulations implementing the federal Family and Medical Leave Act of 1993 are contained in COMAR 11.02.13. #### Regulation .19 Organ Donation Leave. *COMAR 11.02.03.19* A. This regulation applies to all employees, including contractual, emergency, and temporary employees. B. Amount of Leave. In any 12-month period, an employee may use up to: (1) 7 days of organ donation leave to serve as a bone marrow donor; and (2) 30 days of organ donation leave to serve as an organ donor. C. Application for Leave. (1) An employee or the employee's authorized representative may request organ donation leave by submitting a form, provided by the Secretary, to the employee's appointing authority. (2) A request shall be accompanied by the medical documentation required by the form. (3) The employee's appointing authority shall render a decision on requests for organ donation leave within 5 working days of receiving the request. (4) If an employee must make the donation before receiving approval, the leave shall be provided retroactively upon approval. D. Criteria for Reviewing Requests for Leave. (1) An employee shall be denied the use of organ donation leave only if the employee fails to provide medical documentation establishing the employee as an organ or bone marrow donor. (2) If there is a question about medical documentation, the documentation shall be immediately forwarded to the State Medical Director for review. E. Use of Leave. (1) Organ donation leave may only be used for the actual donation procedure, the preparation for the donation procedure, and recovery from the donation procedure. (2) Leave may be used in increments of 1 hour or more. F. Treatment of Medical Documentation. (1) Medical documentation submitted with the request for organ donation leave shall be treated as confidential medical information and shall be disclosed only to those individuals who need to know its contents as part of the review, evaluation, and approval process. (2) An employee who fails to maintain the confidentiality of medical information is subject to disciplinary action, up to and including termination. #### Regulation .20 Disaster Service Leave. *COMAR 11.02.03.20* A. Eligibility. (1) On request, an employee may be entitled to disaster service leave with pay if: (a) The employee is certified by the American Red Cross as a disaster service volunteer: and (b) The American Red Cross requests the services of the employee during a disaster that is designated at Level II or above in the regulations and procedures of the National Office of the American Red Cross; or (2) The employee is a member of: (a) The Civil Air Patrol; (b) The United States Coast Guard Auxiliary; (c) Maryland Voluntary Organizations Active in Disaster; (d) A volunteer emergency medical services department; (e) A volunteer fire department; (f) A volunteer rescuer company of volunteer rescue squad; or (g) A Community Emergency Response team. B. General. (1) An employee may use up to 30 days of disaster service leave in any 12-month period only after obtaining approval from the employee’s appointing authority or the appointing authority’s designee. (2) An employee will continue to earn credit for service while using disaster service leave. (3) An employee using disaster leave will be paid at the employee's regular rate of pay. Acting pay is not included. (4) An employee will continue to earn annual and sick leave while on disaster service leave. (5) Health insurance benefits are continued while using disaster service leave. (6) For purposes of Worker’s Compensation, including work injury leave, and the Maryland Tort Claims Act, while an employee is using disaster service leave, the employee is not considered a State employee. ### Chapter 04 — Equal Employment Opportunity **Authority:** Transportation Article, §§2-102, 2-103, and 2-103.4; State Personnel and Pensions Article, §§2-106 and 5-201—5-215; Annotated Code of Maryland **Administrative History:** Effective date: January 18, 1993 (20:1 Md. R. 27) **Administrative History:** Regulation .01 amended effective March 7, 2011 (38:5 Md. R. 318) **Administrative History:** Regulation .02A amended effective September 12, 1994 (21:18 Md. R. 1509); August 24, 2009 (36:17 Md. R. 1312); March 7, 2011 (38:5 Md. R. 318) **Administrative History:** Regulation .03 amended effective March 7, 2011 (38:5 Md. R. 318) **Administrative History:** Regulation .03A, B amended effective August 24, 2009 (36:17 Md. R. 1312) **Administrative History:** Regulation .04A amended effective March 7, 2011 (38:5 Md. R. 318) #### Regulation .01 Program. *COMAR 11.02.04.01* The Department shall have comprehensive equal employment opportunity and affirmative action programs covering all administrations regarding human resources regulations, policies, management practices, and operating procedures. This chapter applies to all applicants and employees, including contractual, emergency, and temporary employees. #### Regulation .02 Nondiscrimination. *COMAR 11.02.04.02* A. Departmental actions taken to carry out these regulations, as well as related policies and management practices, shall be nondiscriminatory. B. Personnel transactions shall be carried out in a nondiscriminatory manner. #### Regulation .03 Complaints. *COMAR 11.02.04.03* A. A complaint of discrimination shall be filed with the administration's equal employment opportunity officer or the Office of Diversity and Equity in The Secretary's Office. B. A complaint of discrimination shall be filed within 30 days from the time the complainant first knew of or reasonably should have known of the alleged discriminatory action or practice. C. A complaint of discrimination shall allege a distinction in treatment in recruitment, interview, selection, placement, training, compensation, tuition aid, promotion, reclassification, transfer, discipline, termination, or any other of the terms, conditions, and privileges of employment. These complaints of discrimination shall allege discrimination based upon any of the following factors: (1) Age; (2) Ancestry; (3) Color; (4) Creed; (5) Gender identity and expression; (6) Genetic information; (7) Marital status; (8) Mental or physical disability; (9) National origin; (10) Race; (11) Religious affiliation, belief, or opinion; (12) Sex; (13) Sexual orientation; or (14) Other reasons prohibited by law. D. Discrimination Complaint. A complaint shall contain the following: (1) The full name, address, and telephone number of the complainant; (2) The full name and address of the administration, person, or administration and person against whom the complaint is made; (3) A clear and concise signed and dated written statement of the facts constituting the alleged discriminatory action or practice, including when the alleged discriminatory action or practice took place and identifying the alleged violation of the discriminatory factors under §C of this regulation; and (4) The remedy the complainant is seeking. E. Responsibilities of the Equal Employment Officer. (1) Upon receipt of an inquiry or a written complaint, the administration's equal employment opportunity officer shall counsel the comlainant as to the following: (a) The right to file either a complaint or a grievance under COMAR 11.02.09; (b) The right to file a complaint with the Maryland Human Relations Commission within 180 days after the date on which the alleged discriminatory action occurred; and (c) The right to file a complaint with the Equal Employment Opportunity Commission within 300 days from the date the alleged discriminatory action occurred. (2) When a complaint is filed, the equal employment opportunity officer shall contact the complainant and the respondent in the administration against whom the charges have been brought. At that time, the complainant may choose to proceed with mediation or an investigation. F. Mediation. (1) If the complainant and the respondent agree to mediation, the equal employment opportunity officer will schedule and arrange the mediation conference. (2) If an agreement is reached, the agreement will be reduced to writing by the parties, and reviewed by the administration’s Office of the Attorney General for legal sufficiency. Upon completion of such review, the agreement will be signed by the complainant, the respondent, the Manager of the administration’s Equal Employment Opportunity Office, or the Director of the Office of Diversity and Equity, and the complaint will be considered withdrawn. (3) If no agreement is reached, the complaint will be investigated in accordance with §G of this regulation. G. Investigation. (1) If the complainant elects to proceed with the investigation, an equal employment opportunity officer shall investigate the complaint to ascertain all facts, including reviewing all relevant records, policies, and any other pertinent information. All information obtained as a part of the investigation shall be confidential. (2) Within 30 days after a complaint is received, an equal employment opportunity officer shall investigate the complaint, issue a report of the investigation, and recommend a proposed decision to the Administrator of the administration where the complaint originated. The Administrator or the Director of the Office of Diversity and Equity shall issue a written decision to the complainant and may grant any appropriate relief. (3) The equal employment officer may request that the parties waive the 30-day requirement if additional time is needed to complete the investigation and issue a report. H. Appeals. (1) Within 10 days after receiving the decision, a complainant may appeal the decision, in writing, to the Department of Budget and Management, Office of the Statewide EEO Coordinator. (2) If the complainant is dissatisfied with the decision, the Administrator or designee shall inform the complainant of the right to file a complaint of discrimination with the Maryland Human Relations Commission or the Equal Employment Opportunity Commission. #### Regulation .04 Affirmative Action Plan. *COMAR 11.02.04.04* A. The Department shall develop an Affirmative Action Plan to address any need for corrective action. B. The Affirmative Action Plan shall: (1) Be designed to achieve equal opportunity through positive, aggressive, and continuous results-oriented measures to correct past or present discriminatory practices and their effects on the conditions and privileges of employment; and (2) Provide general and specific procedural guidance in relation to: (a) Publicity and dissemination of equal opportunity/affirmative action (EO/AA) matters; (b) EO/AA requirements in employee recruitment and selection; and (c) EO/AA related education and training. ### Chapter 05 — Reinstatement **Authority:** Transportation Article, §§2-102 and 2-103.4, Annotated Code of Maryland **Administrative History:** Effective date: January 18, 1993 (20:1 Md. R. 27) **Administrative History:** Regulation .01A and B amended effective August 30, 1993 (20:17 Md. R. 1346) #### Regulation .01 Eligibility for Reinstatement. *COMAR 11.02.05.01* A. Employees eligible for reinstatement include: (1) Department employees on an approved leave of absence applying before the expiration of the leave of absence; (2) Transportation Service employees who are laid off and return within a 5-year period from the time of the employee's layoff; (3) Transportation Service employees who have separated in good standing applying within a 5-year period following the employee's resignation; and (4) Department employees who have not converted into the Transportation Service, and who: (a) Are laid off and return within a 2-year period from the time of the employee's layoff, and (b) Have separated in good standing applying within a 2-year period following the employee's resignation. B. An employee who is eligible and requests reinstatement shall be placed on the list of eligibles for the employee's former job classification and considered for future job openings. If selected, the employee is entitled to a salary equivalent to the employee's former grade and salary step, and shall receive reinstatement credits as specified in §D of this regulation. C. An employee eligible for reinstatement who is hired into a classification other than the employee's former classification shall receive reinstatement credits as specified in §D of this regulation. D. Reinstatement Leave Credits. An employee who is reinstated is entitled to restoration of leave earning rates based on years of former service, and an employee who is reinstated within 2 years is entitled to restoration of unused sick leave balances. In addition, an employee returning from a military leave of absence shall receive credit for the leave of absence. E. Reinstatement from Active Military Service. An employee who requests to return to a Department position after serving a period of active military service shall be reinstated in accordance with State Personnel and Pensions Article, Title 11, Subtitle 2, Annotated Code of Maryland. ### Chapter 06 — Medical Examinations and Evaluations **Authority:** State Personnel and Pensions Article, §2-106; Transportation Article, §§2-102 and 2-103.4; Annotated Code of Maryland **Administrative History:** Effective date: January 18, 1993 (20:1 Md. R. 27) **Administrative History:** Regulation .01 amended effective March 6, 2023 (50:4 Md. R. 122) **Administrative History:** Regulation .02A amended effective August 30, 1993 (20:17 Md. R. 1346); March 6, 2023 (50:4 Md. R. 122) **Administrative History:** Regulation .02B amended effective September 12, 1994 (21:18 Md. R. 1509) **Administrative History:** Regulation .02C, D adopted effective July 16, 2009 (36:14 Md. R. 985) #### Regulation .01 General. *COMAR 11.02.06.01* The Secretary shall designate a Department Medical Advisor who shall advise the appointing authority or the appointing authority's designee with respect to medical examinations and medical evaluations related to employment with the Department. Reports shall be provided by the Department Medical Advisor to the appointing authority or the appointing authority's designee. #### Regulation .02 Department Medical Advisor. *COMAR 11.02.06.02* A. The Department Medical Advisor: (1) Is a licensed physician who is an employee of the Department or who is contracted by the Department to provide the required Department Medical Advisor services; (2) May consult with other health care professionals to carry out the responsibilities set forth in this chapter subject to the approval of the Secretary; (3) Shall conduct medical examinations as provided for under the Department Medical Advisor Policy, and the determination of the Department Medical Advisor in these examinations is the final medical determination; (4) Is the Department's medical expert on employability and all other related matters; (5) Shall conduct any other medical examinations or studies concerning the medical state of employees or individuals who have received an offer of employment or a conditional offer of employment as directed by the appointing authority or the appointing authority's designee; and (6) May advise the appointing authority or the appointing authority's designee that an individual has a medical condition which affects the individual's ability to perform the essential functions of the position. B. An employee may be subject to a medical examination: (1) If the employee loses excessive time from employment due to illness or injury; (2) To determine if the employee has any physical or mental impairment which might prevent the employee from properly performing the duties of the position; or (3) To determine the medical necessity and duration of advanced sick leave, extended sick leave, work injury leave, and leave of absence—illness. C. The determinations of the Department Medical Advisor in examinations of applicants and employees conducted under §A(3) and (5) of this regulation are final and are not subject to review by the Office of Administrative Hearings. D. If an employee is approved for disability retirement by the State Retirement Agency, unless the employee resigns or is removed earlier, the employee shall be considered resigned from State service 120 calendar days after the approval. ### Chapter 07 — Layoff **Authority:** Transportation Article, §§2-102 and 2-103.4, Annotated Code of Maryland **Administrative History:** Effective date: January 18, 1993 (20:1 Md. R. 27) **Administrative History:** Regulation .03C amended effective September 12, 1994 (21:18 Md. R. 1509) #### Regulation .01 General Provisions. *COMAR 11.02.07.01* A. This chapter does not apply when positions are deleted from the budget by the: (1) Governor's decision to omit an appropriation for a position from the budget bill as evidenced in the supporting documentation submitted in the budget; (2) General Assembly's decision to strike out an appropriation for a position as evidenced in the budget bill or in the report of the budget committees; or (3) Governor's decision pursuant to State Finance and Procurement Article, §7-213, Annotated Code of Maryland, with the approval of the Board of Public Works, to reduce an appropriation for a position included in the budget bill as enacted, as evidenced in the supporting documentation submitted to the Board of Public Works. B. Career Service employees who are in positions that are to be abolished, discontinued, or vacated because of a change in Departmental organization or because of work stoppage, lack of funds, or lack of work, may be laid off. C. Appointing authorities shall provide the Secretary with a proposed list of positions and the reason for the layoff. The Secretary shall review the request and, at the Secretary's discretion, approve or disapprove the recommended layoff. D. Employees in positions to be abolished, discontinued, or vacated shall receive at least 30 days notice. E. An employee who has been notified of an impending layoff may request to displace another employee with the fewest retention points in the same classification within an administration or the Department. At the Secretary's discretion, displacement may be limited to an organizational unit within an administration. #### Regulation .02 Retention Points. *COMAR 11.02.07.02* A. Formula for Establishing Retention Points. The Secretary shall establish a formula which reflects the following factors and percentages: (1) Total State service — 25 percent; (2) Total service in the Department — 50 percent; and (3) Performance appraisals — 25 percent. B. On July 1, 1996, the formula shall reflect the following percentages: (1) Total State service — 15 percent; (2) Total service in the Department — 35 percent; and (3) Performance appraisals — 50 percent. #### Regulation .03 Severance Pay. *COMAR 11.02.07.03* A. Employees who are laid off who have 1 year or more of service with the Department of Transportation shall receive severance pay. B. The Secretary may also authorize the offering of severance pay to employees in designated work units affected by a reduction in force who resign instead of a layoff action. C. Severance pay for employees who are laid off, except for employees laid off due to lack of funds, is 1 week of pay for each year of service with the State, with a minimum of 4 weeks and a maximum of 26 weeks. D. Subject to §A of this regulation, employees laid off due to lack of funds shall receive 4 weeks severance pay, regardless of length of service. E. If an employee who is laid off, or resigns instead of layoff, returns to employment with the Department within 6 months in the same classification, the employee shall reimburse the Department, on a prorated basis, for any severance pay received. #### Regulation .04 Recall. *COMAR 11.02.07.04* Employees who are laid off or resign instead of layoff shall be placed on a list of eligibles for their classification for reinstatement for 5 years as specified in COMAR 11.02.05. ### Chapter 08 — Disciplinary Action **Authority:** Transportation Article, §§2-102 and 2-103.4, Annotated Code of Maryland **Administrative History:** Effective date: January 18, 1993 (20:1 Md. R. 27) **Administrative History:** Regulation .01 amended effective February 27, 2006 (33:4 Md. R. 352); October 19, 2009 (36:21 Md. R. 1592) **Administrative History:** Regulation .01C amended effective October 7, 1996 (23:20 Md. R. 1424) **Administrative History:** Regulation .02B amended effective August 30, 1993 (20:17 Md. R. 1346); October 7, 1996 (23:20 Md. R. 1424); October 19, 2009 (36:21 Md. R. 1592) **Administrative History:** Regulation .02-1 adopted effective October 19, 2009 (36:21 Md. R. 1592) **Administrative History:** Regulation .03 amended effective September 12, 1994 (21:18 Md. R. 1509); March 25, 1996 (23:6 Md. R. 476) **Administrative History:** Regulation .03B amended effective November 24, 2005 (32:23 Md. R. 1828) **Administrative History:** Regulation .03E amended effective August 30, 1993 (20:17 Md. R. 1346) **Administrative History:** Regulation .03G amended effective October 19, 2009 (36:21 Md. R. 1592) **Administrative History:** Regulation .04A and C amended effective August 30, 1993 (20:17 Md. R. 1346); September 12, 1994 (21:18 Md. R. 1509); December 30, 1996 (23:26 Md. R. 1860) **Administrative History:** Regulation .04 amended effective April 20, 2009 (36:8 Md. R. 596) **Administrative History:** Regulation .05C amended effective August 30, 1993 (20:17 Md. R. 1346) **Administrative History:** Regulation .05C, D amended effective April 20, 2009 (36:8 Md. R. 596) **Administrative History:** Regulation .05-1 adopted effective April 20, 2009 (36:8 Md. R. 596) **Administrative History:** Regulation .06 amended effective April 20, 2009 (36:8 Md. R. 596) **Administrative History:** Regulation .06B amended effective August 30, 1993 (20:17 Md. R. 1346) **Administrative History:** Regulation .06C amended effective February 27, 2006 (33:4 Md. R. 352) **Administrative History:** Regulation .07 amended effective April 20, 2009 (36:8 Md. R. 596) **Administrative History:** Regulation .07B amended effective August 30, 1993 (20:17 Md. R. 1346); October 19, 2009 (36:21 Md. R. 1592) **Administrative History:** Regulation .07-1 adopted effective October 7, 1996 (23:20 Md. R. 1424) **Administrative History:** Regulation .07-1A amended effective April 20, 2009 (36:8 Md. R. 596) **Administrative History:** Regulation .08 amended effective April 20, 2009 (36:8 Md. R. 596) **Administrative History:** Regulation .08C amended effective August 30, 1993 (20:17 Md. R. 1346); September 12, 1994 (21:18 Md. R. 1509) **Administrative History:** Regulation .09 amended effective September 12, 1994 (21:18 Md. R. 1509); April 20, 2009 (36:8 Md. R. 596) **Administrative History:** Regulation .10 amended effective September 12, 1994 (21:18 Md. R. 1509); April 20, 2009 (36:8 Md. R. 596) **Administrative History:** Regulation .10C amended effective August 30, 1993 (20:17 Md. R. 1346) **Administrative History:** Chapter revised as an emergency provision effective October 1, 2011 (38:21 Md. R. 1275); revised permanently effective December 26, 2011 (38:26 Md. R. 1697) #### Regulation .01 General. *COMAR 11.02.08.01* A. In the case of Career Service employees, disciplinary action may include, as appropriate: (1) Official written reprimand; (2) Suspension without pay; (3) Loss of leave; (4) Involuntary demotion; (5) Suspension, with or without pay, pending charges for termination; (6) Termination under charges from a Career Service position; or (7) Rejection on promotional probation. B. Before imposing any disciplinary action, the appointing authority or designated representative shall: (1) Investigate the alleged misconduct; (2) Meet with the employee; (3) Consider any mitigating circumstances; (4) Determine the appropriate disciplinary action, if any, to be imposed; and (5) Give the employee a written notice of the disciplinary action to be taken and the employee's appeal rights. C. Before a Career Service employee may be disciplined for performance-related reasons, the appointing authority or designee shall: (1) Investigate the employee’s performance, including the employee’s most recent performance appraisal; and (2) Provide notice to the employee, in writing, of the deficiency and provide an explanation of the employer’s position, which shall include: (a) Specific instances of unacceptable performance by the employee on which the proposed action is based; (b) The performance criteria and factors of the employee’s position involved in each specification of unacceptable performance; and (c) A description of the effort made by the employer to assist the employee in improving performance. D. An appointing authority or designated representative may impose any disciplinary action for a Career Service employee no later than 30 days after the appointing authority or designated representative acquires knowledge of the misconduct for which the disciplinary action is imposed. The 30-day period includes the time necessary for the appointing authority or designated representative to conduct its investigation and meet the other requirements in §B of this regulation. E. The appointing authority or a designated representative and an employee may agree to hold a disciplinary action in abeyance for a period not to exceed 18 months in order to permit an employee to improve conduct or performance. F. Disciplinary action is not allowed because of the religious or political opinions or affiliations of any employee, or because of the failure to contribute to any fund. G. Police Officers. (1) Police officers of the Department have specific rights in administrative actions which may result in discipline under the Law Enforcement Officers' Bill of Rights, and therefore are subject to the provisions of Public Safety Article, Title 3, Subtitle 1, Annotated Code of Maryland. (2) Nondisciplinary administrative terminations of police officers are not covered by the Law Enforcement Officers' Bill of Rights and shall be conducted in accordance with Regulation .07-1 of this chapter. #### Regulation .02 Definitions. *COMAR 11.02.08.02* A. In this chapter, the following terms have the meanings indicated. B. Terms Defined. (1) “Conviction” means: (a) A judgment of conviction, whether entered upon a finding of guilt or acceptance of a plea of nolo contendere, and the imposition of sentence; or (b) The staying of the entry of judgment and the placing of the defendant on probation after a finding of guilty or the acceptance of a plea of nolo contendere. (2) “Day” or “Days” means a calendar day or calendar days. (3) “Designated representative” means an attorney, an employee organization representative, or any other individual authorized in writing by a party to represent the party. (4) “Nondisciplinary administrative termination” means termination of a police officer of the Department for reasons not covered by the Law Enforcement Officers' Bill of Rights, including termination because of a physical or mental impairment which prevents the performance of essential functions of the job, with or without reasonable accommodations. (5) “Party” means an employee or a group of employees having a grievance or other right of appeal or the Maryland Department of Transportation. (6) “Work days” means all days except Saturdays, Sundays, and observed holidays. (7) “Working days” means all days except Saturdays, Sundays, observed holidays, and all days an employee is on leave. #### Regulation .02-1 Official Written Reprimand. *COMAR 11.02.08.02-1* A. The appointing authority or the appointing authority's designee may give an employee an official written reprimand because of unacceptable job performance or work-related conduct. B. Time Limit for Imposition of an Official Written Reprimand. An official written reprimand shall be imposed within the time frame set forth in Regulation .01D of this chapter. C. Written Notice. The appointing authority or the appointing authority's designee shall notify an employee in writing of the reasons for the official written reprimand, and the appropriate appeal procedure, including the time frames for appeal. D. Appeal of an Official Written Reprimand. An employee may appeal an official written reprimand in accordance with the procedures set forth in Regulation .10 of this chapter. #### Regulation .03 Disciplinary Suspension. *COMAR 11.02.08.03* A. An appointing authority or the appointing authority's designee may suspend an employee without pay because of unacceptable job performance or work-related conduct. B. Disciplinary Suspension of Fair Labor Standards Act (FLSA) Exempt Employees. (1) The appointing authority, or the appointing authority's designee, may suspend an FLSA exempt employee as provided for under §A of this regulation. (2) FLSA exempt employees shall be suspended in increments of 5 workdays, as defined in COMAR 11.02.03.01B(10). C. Suspension days shall be consecutive and shall include any day that: (1) Is an observed holiday; (2) An employee is on leave; or (3) An employee is scheduled to work. D. Time Limit for Imposition of Suspension. A disciplinary suspension shall be imposed within the time frame set forth in Regulation .01D of this chapter. E. Exceptions to §D of this regulation are actions taken by Accident Review Boards of the Department. Each board has 20 calendar days for review of accidents, and then suspensions shall be imposed as set forth in Regulation .01D of this chapter. F. Written Notice. The appointing authority or the appointing authority's designee shall notify an employee in writing, on a Transportation Service Suspension form, of the reasons for the suspension and the appropriate appeal route, including the time frames for appeal. G. Appeal of a Disciplinary Suspension. An employee may appeal a disciplinary suspension in accordance with the procedures set forth in Regulation .10 of this chapter. #### Regulation .04 Disciplinary Loss of Leave. *COMAR 11.02.08.04* A. Disciplinary Loss of Leave. The appointing authority or the appointing authority's designee may, for disciplinary purposes, remove up to 5 days of personal or annual leave, or personal and annual leave, from an employee's accumulated leave balance. Personal leave shall be removed before annual leave. Disciplinary loss of leave may be imposed because of unacceptable job performance or work-related conduct. B. Time Limit for Imposition of Loss of Leave. Loss of leave shall be imposed within the time frame set forth in Regulations .01D and .03E of this chapter. C. Written Notice. The appointing authority or the appointing authority's designee shall notify an employee in writing on a Transportation Service Loss of Leave form of the reasons for the loss of leave and the appropriate appeal route, including the time frame for appeal. D. Appeal of Disciplinary Loss of Leave. An employee may appeal a disciplinary loss of leave in accordance with the procedures set forth in Regulation .10 of this chapter. #### Regulation .05 Involuntary Demotion. *COMAR 11.02.08.05* A. An appointing authority or the appointing authority's designee may demote an employee for disciplinary or performance reasons, and may reduce the employee's salary or wages. B. Time Limit for Imposition of an Involuntary Demotion. An involuntary demotion shall be imposed within the time frame set forth in Regulation .01D of this chapter. C. Written Notice. The appointing authority or the appointing authority's designee shall provide an employee in writing with the reason or the reasons for the demotion, the proposed new classification and grade level, the future effective date of the demotion, and the appropriate appeal route, including the time frame for appeal. D. The appointing authority or the appointing authority's designee shall give an employee notice at least 30 days before the effective date of a demotion. E. Appeal of an Involuntary Demotion. An employee may appeal an involuntary demotion in accordance with the procedures set forth in Regulation .10 of this chapter. #### Regulation .05-1 Suspension Pending Charges for Termination of a Career Service Employee. *COMAR 11.02.08.05-1* A. An appointing authority or the appointing authority's designee may suspend a Career Service employee with or without pay pending final disposition of the charges for termination, if the suspension is necessary to protect the interests of the Department. B. Written Notice. The appointing authority or the appointing authority's designee shall notify the employee in writing of the reason or reasons for the suspension pending charges for termination, the effective date of the suspension, and the appropriate appeal route, including the time frame for appeal. C. Thirty Day Limitation for Suspension Without Pay Pending Charges for Termination. (1) If an employee is suspended without pay, the appointing authority or designated representative shall provide to the Secretary of Transportation the charges for termination within 30 days after the first day of the suspension period. (2) If the appointing authority or designated representative has not filed the charges for termination after 30 days, the employee shall be placed on leave with pay until the Secretary of Transportation receives charges for termination. D. Time Limit for Imposition of Suspension Pending Charges for Termination. A suspension pending charges for termination shall be imposed within the time frame set forth in Regulation .01D of this chapter. E. Appeal of Suspension Pending Charges. (1) The Office of Administrative Hearings shall afford the employee a hearing, at which time the employee may: (a) Rebut the reasons given for the suspension; (b) Allege mitigating circumstances; and (c) Offer alternatives to the suspension. (2) An employee may appeal a suspension pending charges for termination in accordance with the procedures set forth in Regulation .10 of this chapter. #### Regulation .06 Termination of a Career Service Employee. *COMAR 11.02.08.06* A. An appointing authority may, for cause, terminate a Career Service employee. B. Cause for Termination. One or more than one of the following causes is sufficient reason for termination, though termination may be for a cause or causes other than those enumerated: (1) The employee is incompetent or inefficient in the performance of job duties and is unable to perform at acceptable levels after proper guidance, training, and recommendations for improvement have been provided to the employee; (2) The employee's action or inaction amounts to insubordination; (3) The employee has performed the job duties in a careless, negligent, or willful manner, including causing damage to, or waste of, State property, State resources, or property of a member of the public; (4) The employee has engaged in or attempted to engage in bribery or extortion in the performance of duties; (5) The employee has a physical or mental impairment which prevents the employee from performing the essential functions of the job, with or without reasonable accommodations as determined by the Department Medical Advisor in accordance with applicable laws; (6) The employee has violated any statute, regulation, executive order, written policy, written directive, or written rule; (7) The employee has failed to obey a lawful and reasonable direction given by a supervisor or superior; (8) The employee has committed an act of misconduct or a serious breach of discipline; (9) Unauthorized absence; (10) The employee has used unwarranted or excessive force in the treatment of other employees, supervisors, or members of the public; (11) The employee has been wantonly offensive toward other employees, supervisors, or members of the public; (12) The employee's action or inaction has caused or reasonably could be expected to result in loss or injury to the State or members of the public; (13) The employee has stolen, or attempted to steal, State property, State resources, or property of a member of the public; (14) The employee has misappropriated or mishandled State funds, revenues, resources, or property; (15) The employee has willfully made a false official statement or report; (16) The employee has been convicted of a felony or a job-related misdemeanor; (17) The employee has violated Executive Order 01.01.1991.16 on substance abuse; (18) The employee has taken for personal use a fee, gift, or other valuable thing in the course of work or in connection with it when the fee, gift, or other valuable thing is given to the employee by any person in the hope or expectation of receiving a favor or better treatment than that accorded other persons; (19) The appointing authority or the appointing authority's designee has investigated an employee's qualifications and background and has discovered that fraudulent or irregular information resulted in the employee's appointment; (20) The employee has engaged in conduct that has brought the Department into public disrepute. C. An appointing authority or designated representative may suspend an employee with or without pay pending final disposition of the charges for termination if the suspension is necessary to protect the interests of the Department as provided in Regulation .01 of this chapter. The appointing authority or designated representative shall notify the employee in writing of the reason or reasons for the suspension pending charges for termination, and the effective date in accordance with Regulation .05-1 of this chapter. D. Charges Shall be Filed with the Secretary of Transportation. The Secretary shall provide the employee, in writing, with a statement of the charges and specifications for termination, and the appropriate appeal route, including the time frame for appeal. E. Time Limit for Imposition of Charges for Termination. Charges for termination shall be imposed within the time frame set forth in Regulation .01D of this chapter. F. Appeal of Charges for Termination. An employee may appeal charges for termination in accordance with the procedures set forth in Regulation .10 of this chapter. G. The Secretary shall issue an order upholding the employee’s termination from Transportation Service in the following instances: (1) If no appeal is received by the Secretary or the Secretary’s designee within 15 days of receipt of the charges; and (2) If no agreement is reached during the settlement conference and no appeal is received by the Office of Administrative Hearings within 15 days following the settlement conference. #### Regulation .07 Discipline or Termination of an Executive Service or Commission Plan Employee. *COMAR 11.02.08.07* A. An appointing authority may recommend to the Secretary of Transportation the discipline or termination of an Executive Service or Commission Plan employee. The Secretary shall review the request and, at the Secretary's discretion, approve or disapprove the recommended discipline or termination. After approval by the Secretary, the appointing authority shall send the employee written notice of the discipline or termination, and the appropriate appeal route, including the time frame for appeal to the Office of Administrative Hearings. B. Appeal of Discipline or Termination. (1) An Executive Service or Commission Plan employee may appeal the discipline or termination in writing to the Office of Administrative Hearings within 15 days of receipt of the discipline or termination notice. However, the employee has the burden of proof at the Office of Administrative Hearings, and the hearing is limited to the legal and constitutional basis for the discipline or termination. (2) If the employee does not appeal the action within 15 days or if the employee does not appear for a scheduled hearing, the action is final. #### Regulation .07-1 Nondisciplinary Administrative Terminations of Police Officers of the Department. *COMAR 11.02.08.07-1* A. Termination. (1) An appointing authority may recommend to the Secretary of Transportation the nondisciplinary administrative termination of a police officer of the Department. (2) The Secretary or the Secretary's designee shall review the request and, at the discretion of the Secretary or the Secretary's designee, approve or disapprove the recommended termination. (3) On approval of the termination by the Secretary or the Secretary's designee, the appointing authority shall send the police officer written notice of the termination and the appropriate appeal route, including the time frame for appeal. B. Appeal of Termination. (1) The procedures for appeal of termination are the same as provided for in Regulation .10 of this chapter. (2) The hearing at the Office of Administrative Hearings is limited to the legal and constitutional basis for the termination. #### Regulation .08 Rejection on Promotional Probation *COMAR 11.02.08.08* A. An employee may be rejected on promotional probation in accordance with COMAR 11.02.02.05. B. Time Limit for Imposition of Rejection on Promotional Probation. A rejection on promotional probation shall be imposed within the time frame set forth in Regulation .01D of this chapter. C. Written Notice. The employee shall be provided written notice of the rejection on promotional probation in accordance with COMAR 11.02.02.05. D. Appeal of Rejection on Promotional Probation. An employee may appeal a rejection on promotional probation in accordance with procedures set forth in Regulation .10 of this chapter. #### Regulation .09 Authority to Conduct Hearings and Appeals. *COMAR 11.02.08.09* The Office of Administrative Hearings shall conduct hearings and issue a final decision for Department of Transportation personnel cases. #### Regulation .10 Appeal Procedure. *COMAR 11.02.08.10* A. A Career Service employee may appeal an Official Written Reprimand, Suspension without Pay, Loss of Leave, Involuntary Demotion, Suspension pending charges for Termination, Charges for Termination, and Rejection on Promotional Probation, in writing, to the Secretary or the Secretary’s designee within 15 days of receipt of the written notice. B. If an employee does not appeal the action within the specified time frames, the action is final. C. Filing an Appeal. (1) An appeal is considered filed on the date the appeal is received by the Secretary or the Secretary’s designee. (2) The employee shall include with the appeal, the reason for the appeal, the requested remedy, and a copy of the notice of disciplinary action, with any documentation that was attached. (3) A copy of the appeal shall be forwarded to the Appointing Authority. D. Settlement Conference. (1) The Secretary or the Secretary’s designee will schedule a settlement conference within 30 days from the receipt of the written appeal. The Secretary or the Secretary’s designee shall send written notice of a settlement conference to the parties by mail or facsimile. (2) The settlement conference notice shall contain: (a) The date, time, place, and the nature of the conference; (b) A statement that notice must be received 3 business days before the conference date if special arrangements are needed to accommodate an individual with a disability; (c) A statement that notice must be received 3 business days before the conference date if an interpreter is needed; and (d) A statement that failure to participate in good faith or to attend a conference may result in a decision adverse to a party. (3) A party or a designated representative shall be present for all scheduled settlement conferences. (4) If a designated representative participates in a settlement conference instead of a party, the designated representative shall have the authority to negotiate or settle the matter appealed. (5) The designation of the representative shall be in writing. (6) If neither the employee nor the designated representative appears at the scheduled settlement conference, the action is final. (7) When the employee’s designated representative is another State employee, the appointing authority of the designated representative shall assure that the designated representative is given reasonable time during work hours to investigate appeals and participate in settlement conferences and hearings relating to an appeal. An employee may not leave the employee’s post of duty to represent another employee at a grievance appeal or a disciplinary appeal conference or hearing without permission from the employee’s supervisor. (8) The appointing authority shall assure that the employee is given reasonable time during work hours to investigate appeals and participate in settlement conferences and hearings relating to an appeal. (9) At the exclusive discretion of the Secretary or the Secretary’s designee, a settlement conference may be conducted by telephone, video, or other electronic means if each party has an opportunity to participate in the entire proceeding. Except as authorized by the Secretary or the Secretary’s designee, documents for a telephone, video, or electronic conference shall be received by the Secretary or the Secretary’s designee and each party at least 3 business days before the scheduled conference. (10) If an agreement is not reached during the settlement conference, the employee shall have 15 days from the date of the settlement conference to appeal, in writing, to the Office of Administrative Hearings, with a copy to the Secretary or the Secretary’s designee. E. Postponement of a Settlement Conference. (1) The Secretary or the Secretary’s designee shall only consider a postponement of a settlement conference: (a) If the requesting party provides a written request 3 business days before the scheduled conference and establishes good cause for the postponement; (b) In the case of an emergency as defined in §E(3)of this regulation; or (c) Under unusual circumstances as determined by the Secretary or the Secretary’s designee. (2) The Secretary or the Secretary’s designee may require documentation of the reasons for the postponement from the party requesting the postponement. (3) Emergency postponements are granted only when the emergency is a sudden, unforeseen occurrence requiring the immediate attention of the requesting party. (4) If the postponement is requested due to a medical emergency, the party requesting the postponement shall submit written medical documentation by one of the medical providers specified in COMAR 11.02.03.07G(6). Failure to provide the required documentation may result in a decision adverse to the requesting party. F. Appeal Hearing. (1) Official Written Reprimand, Suspension without Pay, Loss of Leave, Involuntary Demotion, Charges for Termination, and Rejection on Promotional Probation. An administrative law judge of the Office of Administrative Hearings shall hear the appeal within 90 days and shall render a final decision within 45 days of the hearing. (2) Suspension Pending Charges for Termination. (a) An administrative law judge of the Office of Administrative Hearings shall hear the appeal within 45 days, at which time the employee may: (i) Rebut the reasons given for the suspension; (ii) Allege mitigating circumstances; and (iii) Offer alternatives to the suspension. (b) The administrative law judge shall issue a final decision within 15 days of the hearing. G. Representation. An employee may be represented at a grievance hearing or appeal hearing by an attorney, an employee organization representative, or any other individual authorized, in writing, by the employee to represent him or her. H. Compensation for Representatives and Witnesses. (1) An employee may not lose salary or wages, including overtime and shift differential payments, for investigating, processing, or testifying during any step of the grievance procedure or appeal hearing. (2) Attendance at a hearing is considered work time, and the appointing authority or the appointing authority's designee shall ensure that an employee who is required to attend a grievance hearing or an appeal hearing receives salary or wages. I. Leaving Duty Post. An employee may not leave the employee's duty post to engage in grievance handling or to pursue an appeal without the permission of the employee's supervisor. J. Payment of Travel Expenses. The appointing authority or the appointing authority's designee shall pay travel expenses, as set forth in COMAR 23.02.01, incurred by its employees in connection with attendance at grievance or appeal hearings. K. Burden of Proof. (1) Decisions shall be based upon a preponderance of the evidence. (2) The appointing authority or the appointing authority's designee bears the burden of proof in the following cases: (a) Disciplinary cases involving a Career Service employee; (b) Appeal of a less than Meets Standards performance appraisal rating; and (c) Appeal of a denial of a salary increase due to a performance appraisal rating. (3) The employee bears the burden of proof in the following cases: (a) Grievance hearings, except for appeal of a less than Meets Standards performance appraisal rating and denial of salary increase due to performance appraisal rating; (b) Rejection of employee on probation as set forth in COMAR 11.02.02.05A; (c) Rejection of employee on probation as set forth in COMAR 11.02.02.05C; (d) Disqualification from future employment of a Career Service employee; (e) Discipline or termination of a Commission Plan employee or Executive Service employee; and (f) Rejection on probation of a police officer serving an initial probationary period as a police officer. L. An aggrieved party may seek judicial review of the final decision in accordance with the provisions of the Administrative Procedure Act, State Government Article, §10-222, Annotated Code of Maryland. ### Chapter 09 — Grievances **Authority:** State Personnel and Pensions Article, §12-101; Transportation Article, §§2-102 and 2-103.4; Annotated Code of Maryland **Administrative History:** Effective date: January 18, 1993 (20:1 Md. R. 27) **Administrative History:** Regulation .01A amended effective November 15, 2021 (48:23 Md. R. 981) **Administrative History:** Regulation .01C amended effective July 12, 2010 (37:14 Md. R. 938) **Administrative History:** Regulation .02 amended effective August 30, 1993 (20:17 Md. R. 1346); November 15, 2021 (48:23 Md. R. 981) **Administrative History:** Regulation .02K adopted effective July 12, 2010 (37:14 Md. R. 938) **Administrative History:** Regulation .03 adopted effective February 1, 1993 (20:2 Md. R. 113) **Administrative History:** Regulation .03B amended effective July 12, 2010 (37:14 Md. R. 938) **Administrative History:** Regulation .03C amended effective August 30, 1993 (20:17 Md. R. 1346); July 12, 2010 (37:14 Md. R. 938); November 15, 2021 (48:23 Md. R. 981) **Administrative History:** Regulation .03D amended effective September 12, 1994 (21:18 Md. R. 1509) **Administrative History:** Regulation .04 adopted effective December 30, 1996 (23:26 Md. R. 1860) #### Regulation .01 Definitions and Application. *COMAR 11.02.09.01* A. Definitions. (1) “Days” means calendar days. (2) “Exclusive representative” means an employee organization that has been certified by the State Labor Relations Board as an exclusive representative under State Personnel and Pensions Article, Division I, Title 3, Subtitle 4, Annotated Code of Maryland. (3) Grievance. (a) “Grievance” means a cause of complaint, unless otherwise provided for by law or regulation, arising between a Transportation Service employee and the Department over the interpretation and application of Department regulations, rules, or policies over which management has control or over a term or condition of a memorandum of understanding between the State and the exclusive representative. (b) “Grievance” does not include a dispute about: (i) A pay grade or range for a classification; (ii) The amount or the effective date of a Statewide pay increase; (iii) The establishment of a classification; (iv) The assignment of a classification to a service category; (v) A mid-year performance appraisal; or (vi) An oral reprimand or counseling memoranda. (4) “Party” means: (a) An employee having a grievance; or (b) An aggrieved employee's appointing authority or the appointing authority's designee, or both. B. The following employees are authorized to present grievances: (1) Career Service; (2) Executive Service; and (3) Commission Plan. C. The following employees are not authorized to present grievances: (1) Temporary; (2) Contractual; (3) Law enforcement; (4) Those covered under Maryland Transit Administration collective bargaining agreements; (5) Emergency. #### Regulation .02 General. *COMAR 11.02.09.02* A. Time Limits — Employee. An employee shall file a grievance in writing, on a grievance form supplied by the Human Resources Office, within 30 days of the alleged cause of complaint or knowledge of the complaint. Failure to file or appeal any step of the grievance process within the time limits specified results in dismissal of the grievance. B. Time Limits — Appointing Authority or Appointing Authority's Designee. Failure to render a decision within the time limits specified constitutes a denial which the employee may appeal, within the appropriate time limits, to the next step of the grievance process. C. Waiver of Time Limits or Steps. By mutual agreement, both parties may waive time limits or steps of the grievance process. D. Failure of Grievant to Appear at Scheduled Grievance Conference. Failure of a grievant to appear at a scheduled grievance conference shall result in dismissal of the grievance, unless a valid or documented reason acceptable to the grievance conference officer is provided to explain the grievant's absence. E. Efforts to Resolve a Grievance and Consolidation of Similar Grievances. Both parties shall endeavor to resolve a grievance at the lowest possible step. Similar grievances may be consolidated and processed together as a single grievance. F. The employee may be represented at any step of the grievance procedure by any person of the employee's choosing. G. In a reclassification grievance, the Office of Administrative Hearings may award back pay to the employee for a maximum of 1 year before the date the employee presented the grievance in writing to the appointing authority or the appointing authority's designee. H. Burden of Proof. (1) Decisions shall be based upon a preponderance of the evidence. (2) The appointing authority or the appointing authority’s designee bears the burden of proof in the following grievances: (a) Appeal of a less than “Meets Standards” annual performance appraisal rating; and (b) Appeal of a denial of a salary increase due to an annual performance appraisal rating. (3) The employee bears the burden of proof in all other grievances. I. An employee with an annual written performance appraisal rating equivalent to overall “Meets Standards” or higher may only grieve the evaluation up to Step Two of the grievance procedure. #### Regulation .03 Grievance Process. *COMAR 11.02.09.03* A. Step One. An employee shall initiate a grievance appeal in writing to the employee's appointing authority or the appointing authority's designee within 30 days of the alleged cause of complaint or knowledge of the complaint. In addition, the employee may discuss the grievance orally with the employee's supervisor within the same 30-day period. The appointing authority or the appointing authority's designee shall hear the grievance within 10 days or on a mutually agreed upon date. The appointing authority or the appointing authority's designee shall render a written decision within 20 days of hearing the grievance. If the employee chooses to appeal to Step Two, the appeal shall be filed within 10 days after receipt of the written decision. B. Step Two. An employee may appeal the grievance within 10 days to the Secretary or the Secretary's designee. The Secretary or the Secretary's designee shall hear the grievance within 15 days of receipt of the appeal or on a mutually agreed upon date. The Secretary or the Secretary's designee shall render a decision within 40 days of hearing the grievance. If the employee chooses to appeal to Step Three, the appeal shall be filed within 15 days after receipt of the written decision. C. Step Three. An employee may submit the grievance complaint to the Office of Administrative Hearings on a grievance form provided by the Human Resources Office. An administrative law judge of the Office of Administrative Hearings shall render a written decision, which is binding on all parties, within 45 calendar days after a hearing is held, or within 45 days after all legal memoranda or briefs have been filed. D. An aggrieved party may seek judicial review of the final decision in accordance with the provisions of the Administrative Procedure Act, State Government Article, §10-222, Annotated Code of Maryland. #### Regulation .04 Freedom from Reprisal. *COMAR 11.02.09.04* A. An employee may not be subject to coercion, discrimination, interference, reprisal, or restraint as a result of pursuing a grievance. B. An employee of the Department may not intentionally take or assist in taking an act of coercion, discrimination, interference, reprisal, or restraint against another employee as a result of pursuing a grievance. ### Chapter 10 — Employee Performance Appraisal **Authority:** Transportation Article, §§2-102 and 2-103.4, Annotated Code of Maryland **Administrative History:** Effective date: January 18, 1993 (20:1 Md. R. 27) **Administrative History:** Regulation .02G amended effective July 12, 2010 (37:14 Md. R. 938) #### Regulation .01 Standards. *COMAR 11.02.10.01* The Secretary shall establish standards for the evaluation of attendance, work quantity, work quality, and any other pertinent factors of employee performance, and may amend these standards as may be necessary from time to time. #### Regulation .02 Appraisals. *COMAR 11.02.10.02* A. The appointing authority or the appointing authority's designee shall ensure that written appraisals of the performance of all Career Service, Commission Plan, and Executive Service employees working under the jurisdiction of the appointing authority or the appointing authority's designee be made at least once each year. B. The performance appraisal shall be made by the employee's immediate supervisor, whenever practicable, and shall be reviewed and approved by the next level of supervision. C. The performance appraisal may be reviewed by the appointing authority or the appointing authority's designee. D. The employee's immediate supervisor shall discuss the performance appraisal with the employee. E. Less-than-standard appraisals shall be reported to the appointing authority or the appointing authority's designee. F. An employee may appeal a performance appraisal or denial of salary increase in accordance with COMAR 11.02.09. G. An employee with a written performance appraisal rating equivalent to overall “meets standards” or higher may only grieve the evaluation up to Step Two of the grievance procedure outlined in COMAR 11.02.09. ### Chapter 11 — Testing for Drugs and Alcohol **Authority:** Transportation Article, §2-103, Annotated Code of Maryland **Administrative History:** Effective date: January 18, 1993 (20:1 Md. R. 27) **Administrative History:** Regulation .05F amended effective August 30, 1993 (20:17 Md. R. 1346) **Administrative History:** Regulation .12A amended effective August 30, 1993 (20:17 Md. R. 1346) **Administrative History:** Regulations .01—.16 repealed and new Regulation .01 adopted as an emergency provision effective January 1, 1995 (22:2 Md. R. 73) **Administrative History:** Regulations .01—.16 repealed and new Regulations .01 and .02 adopted effective May 8, 1995 (22:9 Md. R. 645) #### Regulation .01 Illegal Use of Drugs and Alcohol. *COMAR 11.02.11.01* A. The purpose of these regulations is to define and elaborate on the State's policy that employees are prohibited from the illegal use of drugs and from using or being under the influence of alcohol while on duty. B. In accordance with the documents incorporated by reference in Regulation .02 of this chapter, employees and applicants for employment are subject to: (1) Drug and alcohol testing; and (2) Disciplinary actions for violations of these regulations. #### Regulation .02 Incorporation by Reference. *COMAR 11.02.11.02* A. In this chapter, the following documents are incorporated by reference. B. Documents Incorporated. (1) Governor's Executive Order 01.01.1991.16. (2) 14 CFR §61.14 (1993), as amended and published in 59 FR 7388—7389 (1994). (3) 14 CFR §63.12b (1993), as amended and published in 59 FR 7389 (1994). (4) 14 CFR §65.23 (1993), as amended and published in 59 FR 7389 (1994). (5) 14 CFR §§65.46a and 65.46b, as published in 59 FR 7389 (1994). (6) 14 CFR §§121.458 and 121.459 and 14 CFR 121, Appendix J, as published in 59 FR 7389—7396 (1994). (7) 14 CFR §135.1 (1993), as amended and published in 59 FR 7396 (1994). (8) 14 CFR §§135.253 and 135.255, as published in 59 FR 7396—7397 (1994). (9) 49 CFR 40, 382, 653, and 654, as published in 59 FR 7354—7366, 7505—7514, 7549—7557, 7589—7595, and 43000—43019 (1994). (10) 49 CFR §392.5 (1993), and the amendments published in 59 FR 7514—7515 (1994). (11) “On-duty time” as defined in 49 CFR §395.2(8), as published in 59 FR 7515 (1994). ### Chapter 12 — Pilot Programs, Research Projects, and Demonstration Projects **Authority:** Transportation Article, §§2-102 and 2-103.4, Annotated Code of Maryland **Administrative History:** Effective date: January 18, 1993 (20:1 Md. R. 27) #### Regulation .01 Definitions. *COMAR 11.02.12.01* A. In this chapter, the following terms have the meanings indicated. B. Terms Defined. (1) “Pilot program” means a program designed to determine whether a specified change in human resource policies, procedures, or practices results in improved human resource management. (2) “Research or demonstration project” means a study of human resource operational methodology, a study of the effects of human resource operational policies and practices, or a study of comparative alternatives in human resource management. #### Regulation .02 General. *COMAR 11.02.12.02* A. Notwithstanding any other provisions of this subtitle, the Secretary may establish pilot programs, research projects, or demonstration projects in the Transportation Service. B. A pilot program, research project, or demonstration project may not exceed 5 years in length. ### Chapter 13 — Family Medical Leave **Authority:** Transportation Article, §§2-102 and 2-103.4, Annotated Code of Maryland **Administrative History:** Effective date: September 12, 1994 (21:18 Md. R. 1509) **Administrative History:** Regulation .02 amended effective January 27, 1997 (24:2 Md. R. 116) **Administrative History:** Regulation .03 amended effective January 27, 1997 (24:2 Md. R. 116) **Administrative History:** Regulation .05F adopted effective January 27, 1997 (24:2 Md. R. 116) **Administrative History:** Regulation .06A, C amended effective January 27, 1997 (24:2 Md. R. 116) **Administrative History:** Regulation .07A amended effective January 27, 1997 (24:2 Md. R. 116) #### Regulation .01 Purpose. *COMAR 11.02.13.01* These regulations implement the provisions of the Family and Medical Leave Act of 1993 (FMLA) and are intended to balance the demands of the work place with the needs of families, to promote stability and economic security of families, and to promote national interests in preserving family integrity. #### Regulation .02 Definitions. *COMAR 11.02.13.02* A. In this chapter, the following terms have the meanings indicated. B. Terms Defined. (1) “Chronic serious health condition” means a condition which: (a) Requires periodic visits for treatment by a health care provider, or by a nurse or physician's assistant under the direct supervision of a health care provider; (b) Continues over an extended period of time, including recurring episodes of a single underlying condition; and (c) May cause episodic, rather than continuing, periods of incapacity, for example, asthma, diabetes, or epilepsy. (2) “Continuing treatment by a health care provider” has the meaning stated in §C of this regulation. (3) “Employment benefits” means benefits provided or made available to employees by the Department, including group life insurance, health insurance, disability insurance, sick leave, annual leave, educational benefits, and pensions. (4) “Equivalent position” means a position having: (a) The same pay, benefits, and working conditions; (b) The same or substantially similar duties and responsibilities; (c) Substantially equivalent skill, effort, responsibility, and authority; (d) The same work site or a geographically proximate work site; (e) The same shift or an equivalent schedule; and (f) The same opportunity for nondiscretionary payments. (5) “Family member” means a spouse, parent, son, or daughter. (6) “FMLA leave” means unpaid family medical leave taken under the provisions of this chapter. (7) “Group health plan” means any plan of, or contributed to by, the Department, including a self-insured plan, to provide health care, directly or otherwise, to the Department's employees. (8) “Health care provider” means a: (a) Doctor of medicine or osteopathy who is authorized to practice medicine or surgery; (b) Podiatrist, performing within the scope of the podiatrist's practice as defined under State law; (c) Dentist, performing within the scope of the dentist's practice as defined under State law; (d) Clinical psychologist, performing within the scope of the clinical psychologist's practice as defined under State law; (e) Optometrist, performing within the scope of the optometrist's practice as defined under State law; (f) Chiropractor, limited to treatment consisting of manual manipulation of the spine to correct a subluxation as demonstrated by X-ray to exist, performing within the scope of the chiropractor's practice as defined under State law; (g) Nurse practitioner, nurse midwife, and clinical social worker who are authorized to practice under State law and who are performing within the scope of their practice as defined under State law; (h) Christian Science practitioner listed with the First Church of Christ, Scientist in Boston, Massachusetts; and (i) Health care provider from whom a benefits manager for State of Maryland group health plans will accept certification of the existence of a serious health condition to substantiate a claim for benefits. (8-1) “Incapacity” means an inability to work, attend school, or perform other regular daily activities because of a serious condition, treatment, or recovery. (9) “Intermittent leave” means leave taken in separate periods of time due to a single illness or injury of an employee or family member. (10) “Paid leave” means vacation, personal, compensatory, holiday, and earned sick leave. (11) “Parent” means the biological parent of an employee or an individual who stands or stood in loco parentis to an employee when the employee was a child. (12) “Physical or mental disability” means a physical or mental impairment that substantially limits one or more of the major life activities of an individual. (13) “Reduced work schedule” means a leave schedule that reduces the usual number of hours per workweek, or hours per workday, of an employee. (13-1) Return to Work. (a) “Return to work” means a return to work by an employee for a period of at least 30 calendar days. (b) “Return to work” includes cases in which an employee retires within 30 calendar days or retires directly from FMLA leave. (14) Serious Health Condition. (a) “Serious health condition” means an illness, injury, impairment, or physical or mental condition that involves: (i) Inpatient care, any subsequent treatment in connection with the inpatient care, or continuing treatment by a health care provider; (ii) Restorative dental or plastic surgery after an injury or removal of cancerous growths if all FMLA requirements are met; (iii) Mental illness resulting from stress or allergies, if all FMLA requirements are met; or (iv) Substance abuse, if all FMLA requirements are met and treatment for the substance abuse is provided by a health care provider or a provider of health care services. (b) “Serious health condition” does not include: (i) Conditions for which cosmetic treatments are administered, such as most treatments for acne or plastic surgery, unless inpatient hospital care is required or complications develop; (ii) Absences resulting from substance abuse, except as specified in §B(14)(a)(iv) of this regulation; (iii) The common cold, the flu, earaches, upset stomach, headaches other than migraines, routine dental or orthodontic problems, periodontal disease, and other routine health problems. (14-1) “Son or daughter” means a biological child, adopted child, foster child, stepchild, or legal ward of a person standing in loco parentis, who is younger than 18 years old, or 18 years old or older and incapable of self-care because of a physical or mental disability. (15) “Spouse” means a husband or wife as defined or recognized by the state in which the employee resides. (16) “State” means any state of the United States, the District of Columbia, or a possession of the United States. C. Continuing Treatment by a Health Care Provider. (1) Specific. (a) “Continuing treatment by a health care provider” means a situation in which the employee or family member has a serious health condition involving a period of incapacity of more than 3 consecutive calendar days, including any subsequent treatment or period of incapacity relating to the same condition, and that also involves treatment: (i) Two or more times by a health care provider, a nurse or physician's assistant under the direct supervision of a health care provider, or a provider of health care services, such as a physical therapist, under orders of, or on referral by, a health care provider; or (ii) By a health care provider on at least one occasion which results in a regimen of continuing treatment under the supervision of a health care provider. (b) In this subsection, “treatment” includes, but is not limited to, examinations to determine if a serious health condition exists and evaluations of that condition. “Treatment” does not include routine physical, eye, or dental examinations. (2) General. “Continuing treatment by a health care provider” also means a period of: (a) Incapacity for pregnancy or for prenatal care; (b) Incapacity or treatment for the incapacity due to a chronic serious health condition; (c) Incapacity which is permanent or long-term due to a condition for which treatment may not be effective, and for which the employee or family member is under the continuing treatment of, but not necessarily receiving active treatment from, a health care provider, for example, Alzheimer's disease or a severe stroke; (d) Absence taken to receive multiple treatments, including periods of recovery, from a health care provider or by a provider of health care services under the orders of, or on referral by, a health care provider. #### Regulation .03 Eligibility and Use. *COMAR 11.02.13.03* A. In order to be entitled to FMLA leave, an employee shall have a minimum of 12 months employment with the State. B. An employee may not be disqualified on the basis that fewer than 50 employees work within a 75-mile radius of the work site. C. FMLA leave may be used for: (1) The birth of a child and subsequent care; (2) The care of a child placed with the employee for adoption or foster care; (3) The care of a seriously ill spouse, child, or parent; or (4) A serious health condition that makes an employee unable to perform the essential functions of the employee's position. D. Employees may use up to 12 weeks of unpaid leave under these regulations within a 12-month period. E. Calculation of the 12-Month Period. (1) The 12-month period is calculated backward from the date FMLA leave is first taken under this policy. (2) The Department may change to another method of calculating the 12-month period by giving at least 60 days notice to employees and ensuring that the change takes place in such a way that employees retain the full benefit of 12 weeks of FMLA leave. F. Employees requesting leave under these regulations shall first use any available paid leave, which shall be deducted from the 12-week maximum entitlement set forth in §D of this regulation. G. Except for work injury leave, advanced sick leave, extended sick leave, donated leave or leave from the Leave Bank, and earned sick leave used under the provisions of COMAR 11.02.03.07B(3), any leave used before a request for FMLA leave may not be deducted from the employee's FMLA entitlement set forth in §D of this regulation. H. Work injury leave, advanced sick leave, extended sick leave, donated leave or leave from the Leave Bank, and earned sick leave used under the provisions of COMAR 11.02.03.07B(3), used during the 12-month period specified in §D of this regulation, shall automatically be counted against the employee's entitlement set forth in §D of this regulation. I. Employees shall continue to accrue leave, service credits, and other benefits under the provisions of this subtitle during paid leave. J. The entire 12 weeks of family medical leave taken for the birth of a child or the placement of a child for adoption or foster care shall be taken within 12 months of the birth or placement. K. A husband and wife shall be allowed a total of 12 weeks of FMLA leave for the birth of a child or the placement of a child for adoption or foster care. L. An employee may not be required to take a position with reasonable accommodation instead of FMLA leave entitlement. M. An employee may not be required to take FMLA leave instead of reasonable accommodation. N. An employee who has exhausted FMLA leave entitlement shall retain any applicable right to reasonable accommodation. O. An employee's rights under these regulations remain in effect until the employee gives unequivocal notice of intent not to return to work. P. Except as specified in §H of this regulation, leave previously taken for which the employee would have been entitled to FMLA leave may not be designated as FMLA leave after the leave has ended. #### Regulation .04 Continuation of Health Care Benefits. *COMAR 11.02.13.04* A. During the period of FMLA leave, the employee shall be entitled to continuation of health benefits coverage, and shall be entitled to any added coverage or changes in health care benefits that are made available to other employees. B. During periods in which the employee is receiving pay, the employee's share of health insurance premiums shall continue to be deducted from the employee's pay. C. During periods of unpaid FMLA leave, the Department shall pay both the employer and employee portions of health insurance premiums. D. Within six pay periods of the employee's return to work, the employee shall reimburse the Department for the employee's portion paid by the Department while on unpaid leave. Repayment shall be by payroll deduction unless the employee elects to make repayment by lump sum. E. If the employee does not return to work, the employee shall repay both the employee's and the Department's portion of any health insurance premiums paid by the Department during periods of unpaid FMLA leave. The employee may elect to repay the Department either by a lump sum or by a mutually agreeable payment plan. F. Employee Not Returning to Work Due to Serious Health Condition. (1) The Department may not require the employee to repay health insurance premiums paid by the Department if the employee does not return to work due to a serious health condition that would entitle the employee to FMLA leave or because of other circumstances beyond the employee's control. (2) If an employee does not return to work due to a serious health condition of the employee or a family member, the Department may require medical certification of the serious health condition. (3) If the certification specified in §E(1) of this regulation is not provided within 30 days, the employee may be required to repay the Department all costs of health insurance payments made during unpaid FMLA leave. #### Regulation .05 Restoration to Work. *COMAR 11.02.13.05* A. An employee returning from FMLA leave shall be returned to the employee's former position or an equivalent position. B. If special qualifications that are required for the position have lapsed during the employee's leave, the employee shall be given reasonable opportunity to fulfill the requirements after returning to work. C. An employee returning to work has no greater right to the employee's former job or an equivalent position, or to other benefits, than if the employee had been continuously employed during the period of leave. D. An employee who is hired for a specific term, or only to perform work on a specific project, has no right to the employee's former job or an equivalent position if the employment term or project is over and the employer would not otherwise have continued employment. E. Employees who did not choose to continue health care coverage or other employer-provided insurance coverage during periods of FMLA leave shall have benefits resumed at the same level as when leave began without a new qualification period. F. If an employee is unable to perform an essential function of the employee's former position or an equivalent position because of a physical or mental condition, including the continuation of a serious health condition, the employee has no right to restoration to another position under the FMLA. However, the provisions of the Americans with Disabilities Act shall apply, as appropriate. #### Regulation .06 Certification by Health Care Provider. *COMAR 11.02.13.06* A. If the certification required by this regulation is not provided by the health care provider, the Department may deny FMLA leave until the certification is received. B. Leave to Care for Family Member. (1) The Department may require an employee applying for FMLA leave to care for a family member to provide certification from a health care provider that the employee is needed to care for the family member. (2) Care for a family member includes providing psychological comfort and arranging for third-party care. (3) Certification by a health care provider shall indicate that: (a) Third-party care is necessary for the family member; or (b) The employee's presence would provide psychological comfort and be beneficial to the family member. C. Employee Serious Health Condition. (1) The Department shall require an employee applying for FMLA leave to provide certification from a health care provider that the employee has a serious health condition and is unable to perform the function of the employee's job. (2) The Department may require the employee to obtain a second opinion from a health care provider not employed by the Department. (3) If the first and second opinions differ, the Department may require a third opinion from a health care provider mutually selected by the employee and the Department. (4) The cost of second and third opinions shall be paid by the employing administration. (5) Pending receipt of the second or third opinions, the employee is provisionally entitled to FMLA leave. D. If the need for FMLA leave is foreseeable and certification is not provided within 15 days of the Department's request for certification, the leave may be denied until certification is received. E. Recertification. The Department may not require recertification of FMLA leave status more frequently than every 30 days unless: (1) The employee requests an extension; (2) Circumstances regarding the illness or injury change significantly; or (3) New information casts doubt upon the validity of the most recent certification. #### Regulation .07 Fitness for Duty. *COMAR 11.02.13.07* A. An administration may require fitness for duty certification for employees who return to work from FMLA leave only if the administration has a uniformly applied policy or procedure that requires employees in the same occupation and with the same serious health condition who take FMLA leave for this condition to obtain and present certification from the employee's health care provider that the employee is able to resume work. B. A fitness for duty certification is only in regard to the particular health condition that caused the employee's need for FMLA leave. C. A fitness for duty medical evaluation shall be job related. D. The department may not require a second or third opinion for a fitness for duty certification. E. The Department shall notify an employee applying for FMLA leave that a fitness for duty certification is required before the employee returns to work. #### Regulation .08 Intermittent FMLA Leave and Reduced Work Schedules. *COMAR 11.02.13.08* A. Intermittent FMLA leave or a reduced work schedule due to a serious health condition of an employee or family member may be arranged when medically necessary. Medical necessity includes planned medical treatment and recovery from serious health conditions. B. Intermittent leave or a reduced work schedule for birth or placement of a child for adoption or foster care may be taken with the Department's consent. C. An employee who requests intermittent FMLA leave may be temporarily reassigned to an alternative position for which the employee is qualified and which better accommodates recurring periods of leave than does the employee's regular position. D. An alternative position has equivalent pay and benefits but does not necessarily have equivalent duties. However, benefits earned based upon hours worked, such as vacation and sick leave, are reduced accordingly. E. The Department may request the employee to provide the reason why the leave must be taken on an intermittent leave or reduced work schedule basis, and the schedule for treatment, if applicable. F. An employee requesting intermittent FMLA leave or a reduced work schedule due to a serious health condition may be required to provide certification from the health care provider that the leave is medically necessary. The expected duration and schedule of the leave must also be provided. G. Only the leave actually taken is counted toward the 12-week entitlement. The amount of FMLA leave used is calculated based upon the proportion of the normal workweek. If an employee's schedule varies from week to week, a weekly average of the hours worked over the 12 weeks before the beginning of the leave period is used for calculating the employee's normal workweek.