Current through Register Vol. 35, No. 9, May 7, 2024
Section 1.7.7.12 - FAMILY AND MEDICAL LEAVEA. In addition to other leave provided for in 1.7.7 NMAC eligible employees are entitled to leave in accordance with the Family and Medical Leave Act (FMLA) of 1993, as amended. Employees who have been in the classified service for at least 12 months (which need not be consecutive) and who have worked, as defined by Section 7 of the Fair Labor Standards Act, at least 1250 hours during the 12-month period immediately preceding the start of FMLA leave are eligible employees. In addition, employment in the exempt service, legislative or judicial branch, shall count as classified employment for purposes of this rule.B. An eligible employee is entitled to a total of 12 weeks of unpaid FMLA leave in a 12-month period for the birth and care of a newborn child of the employee within one year of the birth; the placement with the employee of a child for adoption or foster care and the care of the newly placed child within one year of placement; the care of the employee's child, parent, spouse, or domestic partner who has a serious health condition; and the employee's own serious health condition that makes the employee unable to perform the essential functions of their job; or any other qualifying exigency arising out of the fact that the spouse, domestic partner, son, daughter or parent of the employee is on covered active duty or has been notified of an impending call or order to covered active duty status, as defined in the FMLA regulations, including issues resulting from short-notice deployment, military events and related activities, childcare and school activities for the military member's child, financial and legal arrangements to address the military member's absence while on covered active duty, counseling, spending time with the military member while on short-term leave, post-deployment activities, care of the military member's parent who is incapable of self-care, and other activities in accordance with the FMLA regulations. The 12-month period is calculated forward from the date an employee's first FMLA leave begins.C. An eligible employee who is the spouse, domestic partner, son, daughter, parent, or next of kin of a covered service member with a serious illness or injury sustained in the line of duty on active duty is entitled to up to 26 weeks of unpaid FMLA leave in a single 12-month period to care for the service member. This military caregiver leave is available during a single 12-month period during which an eligible employee is entitled to a combined total of 26 weeks of all types of FMLA leave. The 12-month period is calculated forward from the date an employee's first FMLA leave begins. D. An employee may elect, or an agency may require the employee, to substitute any of the employee's accrued annual leave, accrued sick leave, personal leave day, accrued compensatory time, or donated leave for any part of unpaid FMLA leave.E. If a paid holiday occurs within a week of FMLA leave, the holiday is counted towards the FMLA entitlement. However, if an employee is using FMLA in increments less than one week, the holiday does not count against the employee's FMLA entitlement unless the employee was otherwise scheduled and expected to work during the holiday.F. Employees shall not accrue annual and sick leave while on unpaid FMLA leave.G. Agencies shall post the required FMLA notices, maintain the required employee records, and implement agency policies in accordance with the FMLA. All medical records and correspondence relating to employees and/or their families shall be considered confidential in accordance with 1.7.1.12 NMAC.H. Disputes over the administration of this rule shall be forwarded to the director for resolution.I. As a condition for restoring an employee whose own serious health condition required FMLA leave, an agency may require the employee to provide certification from their health care provider that the employee is able to resume work. The fitness-for-duty certification may only pertain to the specific health condition that required FMLA leave.1.7.7.12 NMAC - Rp, 1 NMAC 7.7.12, 07/07/01; A, 11/14/02; A, 6-30-06; A, 10-15-08; A/E, 1/27/09; A, 5-14-09, Amended by New Mexico Register, Volume XXX, Issue 24, December 31, 2019, eff. 1/1/2020, Amended by New Mexico Register, Volume XXXII, Issue 13, July 7, 2021, eff. 8/1/2021