SECTION 260:25-15-49. Leave and first preference due to work related illness or injury

(a)   Purpose. The purpose of this Section is to interpret Section 840-2.21 of Title 74 of the Oklahoma Statutes (Section 840-2.21) . Section 840-2.21 establishes the rights and benefits of state employees who are absent from work because of an illness or injury arising out of and sustained in the course of employment with the State. These employees have a right to return to work if certain conditions are met. In applying Section 840-2.21 and this Section, employing agencies shall return an employee to work as soon as possible, either to the original position or to an alternate position if an employee, with reasonable accommodation, is unable to return to the original position.

(b)   Employee eligibility. An employee shall file a claim for workers compensation benefits to be eligible [74:840-2.21].

(c)   Termination of rights. All rights and benefits under Section 840-2.21 and this Section shall end 1 year after the start of leave without pay under this Section and shall end immediately if the claim for workers compensation is denied or otherwise concluded within the 1 year period [74:840-2.21].

(d)   Employing agency practice, policy, and procedure. An agency's policy, procedure and practice affecting employees who file claims for workers compensation benefits shall agree with Section 840- 2.21.

(e)   Required notice to employees. Appointing Authorities shall give employees who report a job related illness or injury copies of this Section, Section 840-2.21, and the agency's policies and procedures for complying with this Section and the law. The procedures shall include instructions about requesting leave without pay under Section 840-2.21.

(f)   Placement of employee on leave without pay. Appointing Authorities shall refer to this Section when they place an employee on leave without pay under Section 840-2.21. The Appointing Authority shall not require employees to exhaust paid sick and annual leave accumulations before placing them on leave without pay [74:840-2.21]. The Appointing Authority shall continue paying the employee's basic plan insurance coverage and dependent insurance benefit allowance while the employee is on leave without pay, and the leave shall not be a break in service [74:840-2.21].

(g)   Medical reports. At least every 3 months, an employee on leave without pay under this Section shall give the Appointing Authority a medical statement as to his or her ability to perform the essential duties of the original position [74:840-2.21]. The medical statement shall be made by a physician as defined in Section 14 of Title 85 of the Oklahoma Statutes.

(h)   Inability to perform essential duties of original position. If an employee on leave without pay under this Section cannot perform the essential duties of the original position, the employing agency shall give the employee first preference for other classified and unclassified positions according to Section 840-2.21.

(1)   Appointing Authorities shall establish a procedure for giving employees on leave without pay under this Section first preference to fill classified and unclassified positions that do not represent a promotion to the employee, if the employee is medically able to do the essential duties and has the minimum qualifications for positions the Appointing Authority seeks to fill.

(2)   Appointing Authorities do not have to notify employees on leave without pay under this Section when the Appointing Authority fills a vacant position temporarily (by temporary unclassified appointment or detail to special duty) .

(3)   Before an Appointing Authority may give a classified or unclassified employee first preference for a classified position, the employee shall be certified by the as meeting the minimum qualifications. Neither classified nor unclassified employees shall be required to compete through the open competitive process for a classified position. The Appointing Authority shall submit the necessary paperwork to the Human Capital Management Division for review.

(4)   Before an Appointing Authority assigns an employee to an alternate position (a position that is not the original position) , the Appointing Authority shall give the employee written notice of the requirement to return to the original position under (i) of this Section. While in an alternate position, an employee shall submit medical reports at least every 3months and whenever the medical condition changes enough to affect his or her ability to return to the original position.

(i)   Return to original position. An employee on leave without pay or working in an alternate position shall have the right to return to his or her original position according to this Section and Section 840-2.21. When a medical report indicates the employee is able to perform the essential duties of the original position, with or without reasonable accommodation, the Appointing Authority shall return the employee to the original position. The employee and the Appointing Authority may agree in writing to waive the requirement to return the employee to the original position from an alternate position.

(j)   Failure to return to work.

(1)   The Appointing Authority may discipline a permanent classified employee or a probationary classified employee or an unclassified employee if:

(A)   a medical report states the employee is able to do the essential duties of the original position or an alternate position (for which the employee is qualified) ; and

(B)   the employee does not return to work within 7 days after the Appointing Authority mails a notice to the employee's last known address or delivers a notice to the employee.

(2)   If an employee does not return to the original position or an alternate position within 1year after the start of leave without pay, the Appointing Authority may terminate the employee under Section 840-2.21. An Appointing Authority that uses Section 840-2.21 as authority to terminate an employee shall give the employee a copy of (k) of this Section. Termination of a permanent classified employee under this Section is subject to the pretermination hearing requirements of Section 840-6.4 of Title 74 of the Oklahoma Statutes.

(k)   Reinstatement upon separation. A classified employee shall be eligible for reinstatement to either classified or unclassified employment with any state agency for 12 months after the date of separation under (j) (2) of this Section. An unclassified employee shall be eligible for reinstatement to unclassified employment with any state agency for 12 months after the date of separation under (j) (2) of this Section. This does not reduce eligibility under other general reinstatement or reemployment laws or rules, such as 260:25-9-102. [74:840-2.21]

[Source: Added at 31 Ok Reg 1346, eff 9-12-14]