N.M. Admin. Code § 10.12.10.13

Current through Register Vol. 35, No. 21, November 5, 2024

Section 10.12.10.13 - SEPARATION WITHOUT PREJUDICE

A.Employees who have suffered an injury or illness which is compressible under the workers' compensation act and are physically or mentally unable to perform the essential functions of their pre-injury/pre-illness position, with or without reasonable accommodation, shall be separated from the department without prejudice provided:

(1) the employee has been afforded modified duty in accordance with these rules;

(2) the employee has reached maximum medical improvement prior to the completion of up to 12 months of modified duty; or, the employee has not reached maximum medical improvement upon the expiration of up to 12 months of modified duty;

(3) all efforts to accommodate the medical restrictions of the employee have been made and documented; and

(4) reasonable efforts to find other suitable vacant positions within the department at the same or lower midpoint than the midpoint of the pre-injury/pre-illness position have been made for which:

(a) the employee meets the established requirements and can perform the essential functions of the job, either with or without reasonable accommodation, or

(b) the employee holds qualifications and abilities necessary for successful job performance and can perform the essential functions of the job, either with or without reasonable accommodation.

B. Employees who have suffered an illness or injury that is not compressible under the workers' compensation act and are unable to perform the essential functions of their pre-injury/pre-illness position, with or without reasonable accommodation, as a result of the physical or mental disability created by the non-job-related injury or illness shall be separated from the department without prejudice provided:

(1) all efforts to reasonably accommodate the medical restrictions of the employee have been made and documented; and

(2) reasonable efforts have been made to find other suitable vacant positions within the agency at the same or lower midpoint than the midpoint of the pre-injury/pre-illness position for which:

(a) the employee meets the established requirements and can perform the essential functions of the job, either with or without reasonable accommodation; or

(b) the employee holds qualifications and abilities necessary for successful job performance and can perform the essential functions of the job, either with or without reasonable accommodation.

C. Modified duty may be provided to employees for a period of up to four months during the separation process if required to meet the provisions of this rule.

D. Notice of contemplated separation without prejudice:

(1) to initiate the separation without prejudice of an employee who has completed the probationary period, the department shall serve a notice of contemplated separation without prejudice on the employee which: describes the circumstances which form the basis for the contemplated separation without prejudice; gives a general explanation of the evidence the agency has; advises the employee of his or her right to inspect and obtain copies of any documentary evidence relied upon; specifies what the contemplated action is; and states that the employee has 11 calendar days from service of the notice to respond in writing to the notice or to request an opportunity for an oral response;

(2) when the notice of contemplated separation without prejudice is served by mail, the employee receiving service shall have three additional calendar days in which to file a response;

(3)at the time the notice of contemplated separation without prejudice is served on the employee, the department shall notify the risk management division of the general services department of the proposed separation without prejudice and submit a copy of the separation notice along with documentation to support efforts to provide modified duty and to support efforts to find other suitable vacant positions.

E. Response to notice of contemplated separation without prejudice:

(1) a representative of the employee's choosing may respond in writing to the notice of contemplated separation without prejudice on behalf of the employee and shall be subject to the same timelines stated herein and any final decision made will be binding on the employee directly;

(2) if there is a request for an oral response to the notice of contemplated separation without prejudice, the department shall meet with the employee within 11 calendar days of a request for an oral response, unless the employee and the department agree in writing to an extension of time; a representative of the employee's choosing may represent the employee and shall be subject to the same timelines stated herein and any final decision made will be binding on the employee directly;

(3) the purpose of the oral response is not to provide an evidentiary hearing but is an opportunity for the employee to present his or her side of the story; it is an initial check against mistaken decisions, essentially a determination of whether there are reasonable grounds to support the proposed involuntary separation without prejudice.

F. Notice of final separation without prejudice:

(1) if the employee does not respond to the notice of contemplated separation without prejudice the department shall issue a notice of final separation within 11 calendar days following the response period;

(2) if the employee has fled a written response or has been provided an opportunity for oral response, the agency shall issue a notice of final separation without prejudice no later than 11 calendar days from the date of receipt of the response;

(3) the notice of final separation without prejudice shall:

(a) specify the action to be taken;

(b) describe the circumstances which form the basis for the separation without prejudice, which may not include allegations not included in the notice of contemplated separation without prejudice;

(c) give a general explanation of the evidence the agency has;

(d) specify when the final separation without prejudice will be effective, which must be at least 24 hours from the time of service of the notice of final separation without prejudice;

(e) inform the employee that the final separation without prejudice may be appealed to the chief with a written statement of the grounds for the appeal delivered to the human resources office in Santa Fe, New Mexico, and received by the human resource director within 30 calendar days of the effective date of the separation without prejudice; and

(f) the adjudication process is outlined in 10.12.12 NMAC.

N.M. Admin. Code § 10.12.10.13

Adopted by New Mexico Register, Volume XXVI, Issue 13, July 15, 2015, eff. 7/1/2015