Sec. 17.04.11.22. State Employees' Leave Donation Program

A. Definitions. In this regulation, the following terms have the meanings indicated:

(1) "Catastrophic illness or injury" has the meaning stated in State Personnel and Pensions Article, §9-601(b), Annotated Code of Maryland.

(2) "Immediate family" has the meaning stated in State Personnel and Pensions Article, §9-601(c), Annotated Code of Maryland.

(3) "Program" means the Employee-to-Employee Leave Donation Program.

(4) "Serious and prolonged medical condition" means a physical or mental impairment that substantially limits the ability of the individual to perform the essential functions of the individual's job, which cannot be accommodated through reasonable accommodation.

B. Scope. This regulation applies to:

(1) Employees, except temporary employees, in principal departments and other independent units in the State Personnel Management System; and

(2) Employees in a principal unit in the executive, judicial, or legislative branches of State government with an independent personnel system that allows its employees to voluntarily participate in the Program.

C. Leave Donations.

(1) An employee may voluntarily donate the employee's unused annual, personal, or sick leave to another employee who has exhausted all available annual, personal, sick, and compensatory leave because of a:

(a) Serious and prolonged medical condition of the employee that existed at the time of the donation; or

(b) Catastrophic illness or injury to a member of the employee's immediate family for whom the employee is needed to provide direct care.

(2) An employee may voluntarily donate any amount of unused annual or personal leave to an eligible employee.

(3) An employee may voluntarily donate unused sick leave to an eligible employee, but only to the extent that the donating employee has a sick leave balance of at least 240 hours after the donation.

(4) An employee who wishes to donate leave to another employee shall complete Part I of the MS 405 form, which shall be supplied to appointing authorities by the Secretary, and shall submit it to the donating employee's appointing authority. At the same time, the donating employee shall forward a copy of the MS 405 form to the employee to whom the leave is to be donated.

(5) Within 7 days of receiving the MS 405 form, the donating employee's appointing authority shall review the donating employee's sick leave balance, and determine whether the condition specified in §C(3) of this regulation has been satisfied.

(6) If the condition in §C(3) of this regulation has not been satisfied, the appointing authority shall notify the donating employee who shall be given an opportunity to donate fewer hours of sick leave, if the condition specified in §C(3) of this regulation can be satisfied.

(7) Within 7 days after conducting any reviews required in §C(5) and (6) of this regulation, the donating employee's appointing authority shall forward a copy of the MS 405 form to the receiving employee's appointing authority.

(8) Within 14 days of receiving the MS 405 form from the donating employee, the employee receiving the donation shall complete Part II of the MS 405 form and submit it to the receiving employee's appointing authority with all documentation required by the MS 405 form, unless satisfactory documentation already has been provided to the appointing authority.

(9) Within 14 days of receiving the MS 405 form, the receiving employee's appointing authority shall determine if the receiving employee is eligible for receiving donated leave in accordance with the conditions specified in §§D and E of this regulation, and make appropriate adjustments to the leave balance of the employee receiving the donation if the employee is eligible.

(10) If the receiving employee is determined to be ineligible to receive leave, the appointing authority shall deny the receiving employee the use of the donated leave. A determination denying the use of donated leave shall be made within 14 days of the receiving employee's appointing authority's receipt of a completed MS 405 form from the receiving employee. The determination shall:

(a) Be in writing;

(b) Include the appointing authority's reason for the denial and supporting documentation; and

(c) State that the employee may appeal a denial to the Secretary.

(11) The appointing authority of an employee who donates leave shall adjust the donating employee's leave balance before forwarding a copy of the MS 405 form to the receiving employee's appointing authority. If the receiving employee is denied the use of donated leave, the receiving employee's appointing authority shall notify the donating employee's appointing authority within 7 days of the denial, and the donating employee's appointing authority shall restore the leave balance of the donating employee within 14 days of notification from the receiving employee's appointing authority.

D. Conditions for Receiving Leave Donations. An employee to whom leave is donated:

(1) May not receive more than a combined total of 2,080 hours of donated leave from the State Employees' Leave Bank and from other employees during the employee's State service;

(2) Shall only use the donated leave for:

(a) An illness or disability of the employee due to the medical condition that existed at the time the leave was donated; or

(b) A catastrophic illness or injury of a member of the employee's immediate family for whom the employee is needed to provide direct care;

(3) May not use the donated leave for any continuous period that, when combined with all other forms of paid leave, exceeds 16 months; and

(4) Shall comply with all requirements established by the employee's personnel system for the use of earned paid sick leave.

E. Denials of Use of Donated Leave.

(1) An employee shall be denied the use of donated leave if the employee:

(a) Fails to provide medical documentation substantiating a serious and prolonged medical condition;

(b) Has not exhausted all available annual, personal, sick, and compensatory leave;

(c) Otherwise fails to qualify for use of earned paid sick leave under the requirements of the employee's personnel system;

(d) Will not be returning to work; or

(e) Has, through intimidation, threat, or coercion, interfered with or attempted to interfere with the right of another employee to contribute or not to contribute, receive, or use donated leave, promised to confer or conferred an appointment, promotion, compensation, or other benefit, or effected or threatened to effect a reprisal, including the deprivation of an appointment, promotion, compensation, or other benefit, in connection with the right of another employee to contribute, receive, use, or donate leave.

(2) Approval of leave taken to care for a covered family member for a catastrophic illness or injury is discretionary, and denial may be based on any reason which is consistently applied and is not illegal or unconstitutional.

F. Appeals.

(1) An employee who appeals a denial of the use of donated leave shall submit a written appeal on the MS 406 form, which shall be supplied to appointing authorities by the Secretary, to the Secretary within 14 days of receiving notice of a denial. The employee shall provide a copy of the appeal to the appointing authority.

(2) An appeal shall contain a statement of the reason the employee believes the denial should be overruled, and may include supporting documentation.

(3) An employee's appointing authority has 14 days following receipt of a copy of the appeal within which to respond to the appeal.

(4) Appeals of denial of the use of donated leave shall be determined on a case-by-case basis. In determining an appeal, the Secretary shall consider the employee's medical documentation and the factors specified in §§D and E of this regulation.

(5) The Secretary's determination shall be in writing and shall be made within 30 days of receipt of the appeal and any necessary documentation. Whenever the Secretary finds it necessary to refer an employee's appeal to the State Medical Director, this period may be extended an additional 30 days.

G. Treatment of Employee Medical Documentation.

(1) Medical documentation submitted in connection with the Program 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.

H. Coercion, Intimidation, and Threats Prohibited. Leave donations by an employee are strictly and completely voluntary. An employee who, through intimidation, threat, or coercion, interferes with or attempts to interfere with the right of another employee to contribute or not to contribute, receive, or use donated leave, promises to confer or confers an appointment, promotion, compensation, or other benefit, or effects or threatens to effect a reprisal, including the deprivation of an appointment, promotion, compensation, or other benefit, in connection with the right of another employee to contribute, receive, use, or donate leave, is subject to disciplinary action, up to and including termination.

I. Record Keeping. Each principal department or other independent unit in the State Personnel Management System, and each principal department or other independent unit of State government with an independent personnel system that allows its employees to participate in the Program, shall:

(1) Maintain a record of the employee leave donated; and

(2) Submit to the Secretary, on or before October 15 of each year, a report providing the following information for the preceding fiscal year:

(a) Number of employees who donated leave;

(b) Kind of leave and number of hours donated by each employee;

(c) Number of employees who received donated leave; and

(d) Number of hours of donated leave received and used by each employee to whom leave was donated.

J. Miscellaneous.

(1) An employee who has applied for disability retirement may use donated leave if the employee:

(a) Has a serious and prolonged medical condition;

(b) Satisfies the conditions of §D of this regulation;

(c) Is not disqualified by any of the factors set forth in §E(1)(a)-(c) or (e) of this regulation;

(d) Provides satisfactory medical documentation; and

(e) Provides a certificate of illness in accordance with State Personnel and Pensions Article, §9-504, Annotated Code of Maryland.

(2) If an employee who receives donated leave does not use all of the leave received, the receiving employee’s appointing authority or designee shall report to the donating employee’s appointing authority or designee, within 7 days, the amount and type of the employee’s donated leave that was not used. The donating employee’s appointing authority or designee shall restore the unused leave hours to the donating employee within 14 days of notification from the receiving employee’s appointing authority or designee.