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Chapter 2 Employment Provisions

2-1 Terms of Employment
2-2 Oath of Office
2-3 Performance Ratings
2-4 Layoffs
2-5 Employment Preference
2-6 Discipline
2-7 Drug and Alcohol Testing
2-8 Ethical Standards and Conduct
2-9 [Reserved]
2-10 Whistleblower Protection
2-11 Leave of Absence with Pay
2-12 Leave of Absence without Pay
2-13 Waived Rights Leave of Absence
2-14 Rights of Employees Absent Due to Service in the Uniformed Services
2-15 [Reserved]
2-16 Assumption into Classified Service
2-17 Retirement
2-18 Training
2-19 Legal Representation
2-20 Workplace Safety
 
2-1 Terms of Employment
2-1.1 Career Appointment
An indefinite appointment expected to last the equivalent of 90 full-time workdays or more in a calendar year is career employment.  A limited-term appointment expected to last the equivalent of 90 full-time workdays or more in a calendar year is considered as career employment for all benefit purposes except as otherwise provided in the rules or regulations.
2-1.2 Noncareer Appointment
(a) Defined.  An appointment expected to last less than the equivalent of 90 full-time workdays in a calendar year is a noncareer appointment.
(b) Student and special noncareer classifications authorized.   The state personnel director may issue regulations to permit noncareer employment exceeding the equivalent of 89 full-time workdays in a calendar year, without fringe benefits, for designated student and special classifications.
(c) Limitations on noncareer appointments.   An employee in a noncareer appointment is not entitled to any of the following:
  (1) Sick or annual leave accruals.
  (2) Holiday pay.
  (3) Enrollment in state-sponsored group insurance plans.
  (4) Service credit for any purpose, such as longevity compensation, salary step increase, employment preference, or status.
  (5) Employment exceeding the equivalent of 89 full-time workdays in any calendar year.
[Rule 2-1 last amended effective March 18, 2001]
2-2 Oath of Office
An employee hired into the classified service shall, as a condition of employment, take and subscribe to the following oath of office:
  “I do solemnly swear (or affirm) that I will support the Constitution of the United States and the constitution of this state and that I will faithfully discharge the duties of my position according to the best of my ability."
[Rule 2-2 added effective August 22, 2002]
2-3 Performance Ratings
2-3.1 Rating System
(a) Regulations.  The state personnel director shall issue regulations to establish a system of probationary ratings, annual ratings, interim ratings, and follow-up ratings for appointing authorities to evaluate and report employee performance and behavior.
(b) Ratings.
  (1) Types of performance ratings.  A rating issued under this rule is a single overall evaluation of the performance and behavior of the employee for the relevant rating period:
    (A) Probationary rating. A probationary rating rates the overall performance and behavior of the employee as either satisfactory or unsatisfactory.
    (B) Annual rating. An annual rating rates the overall performance and behavior of the employee as either satisfactory or needs improvement.
    (C) Interim and follow-up ratings. An interim rating rates the performance or behavior of the employee as unsatisfactory.  A follow-up rating rates the overall performance of the employee as either satisfactory or unsatisfactory.
  (2) Methods. Unless provided otherwise in the regulations, an appointing authority may use any appropriate performance rating method developed or approved by the state personnel director to evaluate and rate employees.  If an approved rating method yields overall performance evaluation categories different than those in subsection (b)(1), the categories must equate to the overall performance categories required in subsection (b)(1).
  (3) Component parts.  If an overall rating is satisfactory, a negative evaluation on an individual subpart of the performance evaluation, such as an individual objective, competency, or factor, is not grievable or reviewable in the agency review procedure.
(c) Review with employee.  A supervisor must review each probationary, annual, interim, and follow-up rating with the employee.  Both the supervisor and the employee must sign and date each rating as evidence of the review.  The employee’s signature on the rating does not indicate that the employee agrees with the rating.  The employee may file an explanatory statement to accompany the rating.
(d) Use of ratings.  A performance rating may be considered in making human resource decisions, including, for example, promotion, retention, assignment, and training.
(e) Report.  If required by the civil service regulations, each appointing authority shall report or certify probationary, annual, interim, and follow-up ratings to civil service staff.
2-3.2 Probationary Ratings
(a) Probationary ratings.  Unless a probationary appointment has been terminated or rescinded, an appointing authority shall evaluate the performance and behavior of each probationary employee and issue a probationary rating as required in the civil service rules and regulations.
  (1) Full-time employment.  At a minimum, an appointing authority shall issue a probationary rating for a full-time probationary employee after completion of 6 calendar months and again after completion of one calendar year of employment.  In addition, if the probationary employee is a new hire without status in the classi­fied service, the appointing authority shall rate the employee after completion of 3 calendar months of employment.
  (2) Less than full-time employment.  At a minimum, an appointing authority shall issue a probationary rating for a probationary employee working less than full-time after completion of 9 calendar months and again after completion of 18 calendar months of employment.  In addition, if the probationary employee is a new hire without status in the classified service, the appointing authority shall rate the employee after completion of 3 calendar months of employment.
  (3) Extension of probation.  If a probationary period is extended beyond one calendar year (for full-time employees) or 18 calendar months (for less than full-time employees), as authorized in rule 3-6.2(b) [Extension of Probationary Period], the appoint­ing authority shall also issue a final probationary rating no later than 28 calendar days after the end of the extension of the probationary period.
(b) Satisfactory probationary rating. A satisfactory probationary rating is not discipline and is not grievable.
(c) Unsatisfactory probationary rating. The following apply to unsatisfactory probationary ratings:
  (1) Discipline.  An unsatisfactory probationary rating is discipline and may be the basis for additional discipline, up to and including dismissal.
  (2) Grievance.  An employee may grieve an unsatisfactory probationary rating only as authorized in rule 3-6.5 [Grievance of Probationary Rating or Discipline], rule 8-1 [Grievances], and the applicable regulations.
  (3) Effects.
    (A) An employee who receives an unsatisfactory probationary rating is not eligible for a step increase, a performance-pay award, or reclassification until a later satisfactory rating is issued.
    (B) The period beginning when the employee receives an unsatisfactory probationary rating is not counted as qualifying time for a step increase or reclassification.  A step increase, performance-pay award, or reclassification action cannot be made retroactive to a date before a new satisfactory rating is issued.
  (4) Record.  The employee’s employment record must reflect any unsatisfactory probationary rating
2-3.3 Annual Ratings
(a) General.  The following apply to all annual ratings for employees in compensation plans with fixed steps and in performance-pay programs.
  (1) Annual rating required.  An appointing authority shall evaluate the performance of each nonprobationary employee and issue an annual rating as required in the civil service rules and regulations.
  (2) Number and timing.  An appointing authority shall issue an annual rating at least once annually.  In addition, the appointing authority may issue additional annual ratings at any time.  If the employee has received an interim rating or an unsatisfactory follow-up rating, the appointing authority is not obligated to issue an annual rating for any period covered by the interim or follow-up rating.
  (3) Performance improvement plan.  If an employee receives a needs improvement annual rating, the appointing authority must establish a performance improvement plan to monitor the employee’s performance.  The performance improvement plan must establish a date by which the appointing authority will issue another annual rating to evaluate the employee’s performance under the performance improvement plan.
  (4) Agency review procedure.  Each appointing authority shall establish an agency review procedure for employees to obtain a review of a needs improvement annual rating.  The procedure must provide for a review by the appointing authority or the appointing authority’s designee.  If the annual rating is not grievable or appealable to civil service staff, the review of the appointing authority is also not grievable or appealable.
(b) Compensation plans with fixed steps.  The following apply to annual ratings for employees in compensation plans with fixed steps:
  (1) Satisfactory annual rating.  A satisfactory annual rating is not discipline and is not grievable or reviewable.
  (2) Needs improvement annual rating.  The following apply to needs improvement annual ratings:
    (A) Discipline.  A needs improvement annual rating is not discipline.
    (B) Complaints.  A needs improvement annual rating cannot be grieved unless the employee alleges that the annual rating was issued in violation of rule 1-8 [Prohibited Discrimination] or rule 2-10 [Whistleblower Protection].  However, an employee may request a review of a needs improvement annual rating within the agency review procedure authorized in subsection (a)(4)
    (C) Effects.
      (1) Step.  An employee who receives a needs improvement annual rating is eligible for a step increase.
      (2) Reclassification.  An employee who receives a needs improvement annual rating is not eligible for reclassification until a later satisfactory rating is issued.  A reclassification action cannot be made retroactive to a date before a new satisfactory rating is issued.
(c) Performance-pay program ratings and actions.  The following apply to annual ratings and performance-pay actions for employees in performance-pay programs in (1) the senior executive service, (2) the senior executive management assistant service, (3) equitable classification plan (ECP) Group 4, and (4) ECP Groups 1, 2, and 3 if the state personnel director has approved the employee’s inclusion in a performance-pay program:
  (1) Salary review.  An appointing authority shall complete a salary review for each employee in a performance-pay program at the same time it completes the annual rating.  The appointing authority shall use the annual rating as one factor in determining the employee’s eligibility for an increase in base salary or a lump sum award authorized in rule 5-3.4 [Operation of Compensation Schedules].
  (2) Satisfactory annual rating.  A satisfactory annual rating is not discipline and is not grievable or reviewable.
  (3) Needs improvement annual rating.  The following apply to needs improvement annual ratings:
    (A) Discipline. A needs improvement annual rating is not discipline.
    (B) Complaints.  A needs improvement annual rating cannot be grieved unless the employee alleges that the annual rating was issued in violation of rule 1-8 [Prohibited Discrimination] or rule 2-10 [Whistleblower Protection].  However, an employee may request a review of a needs improvement annual rating within the agency review procedure authorized in subsection (a)(4).
    (C) Effects.
      (1) Performance-pay award.  An employee who receives a needs improvement annual rating is not eligible for a performance-pay award until a later satisfactory rating is issued.  A performance-pay award cannot be made retroactive to a date before a new satisfactory rating is issued.
      (2) Reclassification.  An employee who receives a needs improvement annual rating is not eligible for a reclassification until a later satisfactory rating is issued.  A reclassification action cannot be made retroactive to a date before a new satisfactory rating is issued.
  (4) Grievances regarding other performance-pay actions.   Performance-pay awards are discretionary.  An employee is not authorized to grieve or appeal a perform­ance-pay action unless a grievance or an appeal is specifically permitted in this rule or the applicable regulations.
    (A) Grievance permitted. An employee aggrieved by any of the following performance-pay actions may file a grievance as authorized in rule 8-1 [Grievances] and the applicable regulations:
      (1) The employee's pay is reduced.
      (2) The appointing authority does not rate the performance of the employee at least once annually.
      (3) The performance-pay action is alleged to violate rule 1-8 [Prohibited Discrimination] or rule 2-10 [Whistleblower Protection].
    (B) Grievance prohibited.   Except as expressly authorized in subsection (c)(4)(A), the employee cannot grieve a final performance-pay decision of the appointing authority.  By way of example only, the following performance-pay actions cannot be grieved:
      (1) The amount of a performance-pay award.
      (2) The failure to receive a performance-pay award.
      (3) The distribution of a performance-pay award between a base salary adjustment and a lump sum award.
      (4) The performance evaluation or performance-pay award of another employee.
      (5) The decision to include a position in, or exclude a position from, a performance-pay program.
      (6) The performance-pay program itself, including, for example, the performance standards, agency evaluation methods, rating categories, and agency salary-range subdivisions.
2-3.4 Interim and Follow-up Ratings
(a) Interim ratings.  An appointing authority may evaluate the performance and behavior of an employee, including a probationary employee, and issue an interim service rating at any time.  An interim rating is an unsatisfactory rating.
(b) Follow-up ratings.
  (1) Follow-up rating period.  If the appointing authority issues an interim rating but does not dismiss the employee, the appointing authority shall establish in writing the length of a follow-up rating period.  If, during the follow-up rating period, the employee is placed on a leave of absence without pay or extended sick leave, the follow-up rating period is automatically extended for an additional period equal to the period of the employee’s absence.
  (2) Follow-up rating.  The appointing authority shall evaluate the performance and behavior of the employee during the follow-up rating period and issue a follow-up rating as required in the civil service rules and regulations.  The appointing authority shall issue the follow-up rating before or within 28 calendar days after the end of the follow-up rating period.  If the appointing authority fails to issue a follow-up rating within the time allowed, the employee may, within 14 calendar days after the end of the period allowed for issuance of the follow-up rating, request in writing that the appointing authority issue the follow-up rating.  If the appointing authority fails to issue the follow-up rating within 14 calendar days after the employee’s written request, the employee is returned to satisfactory standing, effective the end of the follow-up rating period.  However, the return to satisfactory standing does not nullify any prior interim rating or unsatisfactory follow-up rating or preclude the later use of any such rating.
(c) Discipline.  Interim ratings and unsatisfactory follow-up ratings are discipline and may be the basis for additional discipline, up to and including dismissal.
(d) Grievance.
  (1) Nonprobationary employee.  A nonprobationary employee who receives an interim rating or an unsatisfactory follow-up rating may grieve the rating as provided in rule 8-1 [Grievances]and the applicable regulations.
  (2) Probationary employee. A probationary employee who receives an interim rating or an unsatisfactory follow-up rating may grieve the rating as provided in rule 3-6.5 [Grievance of Probationary Rating or Discipline].
(e) Effects.
 
(1)
 An employee who receives an interim rating or an unsatisfactory follow-up rating is not eligible for a step increase, a performance-pay award, or reclassification until a later satisfactory rating is issued.
 
(2)
 The period during which the employee is rated as unsatisfactory is not counted as qualifying time for a step increase or reclassification.  A step increase, perform­ance-pay award, or reclassification action cannot be made retroactive to a date before a new satisfactory rating is issued.
(f) Commission action.  If an employee receives an interim rating and a subsequent unsatisfactory follow-up rating and the appointing authority has taken no adverse action, the state personnel director may recommend to the civil service commission that the employee be separated from the classified service.
[Rule 2-3 last amended effective August 26, 2007]
2-4 Layoffs
2-4.1  Reasons for Layoff
An employee may be laid off for reasons of administrative efficiency, including, for example, lack of work, lack of adequate funding, change in agency mission, or reorganization of the work force.
2-4.2  Notification
An appointing authority shall give prior written notice to an employee who is laid off.
2-4.3 Indefinite Layoffs
An appointing authority may place an employee on indefinite layoff in accordance with the civil service rules and regulations governing employment preference.
2-4.4 Temporary Layoffs
(a) Authorized.  An appointing authority may place an employee on one or more temporary layoffs as provided in this rule and any applicable regulations.
(b)    Limitations.
 
(1)
A temporary layoff shall be for one or more full workdays specifically identified in prior written notice given to the employee.
 
(2)
An employee cannot be placed on temporary layoff status for more than 20 cumulative workdays in a fiscal year.
(c)    Relation to other rules and regulations.
 
(1)
Employment preference and recall rules not applicable.  The civil service rules and regulations governing employment preference and recall do not apply to temporary layoffs or return to work from temporary layoff.
 
(2)
Insurance, leave accruals, and service credits.  Notwithstanding any other civil service rule or regulation or the fact that an employee’s work hours or pay is reduced by a temporary layoff, all temporary layoff time is considered creditable time for all purposes, including, but not limited to, the following:
 
(A) Satisfaction of the standard 80-hour biweekly work period for full-time employees [rule 5-2.1].
 
(B) Compliance with compensation schedules [rule 5-3].
 
(C)  Computation of service hours for the following:
 
  (1) Longevity [rule 5-8].
 
  (2) Annual and personal leave [rule 5-10.2(a)(1)].
 
  (3) School participation leave [rule 5-10.2(a)(2)].
 
  (4) Sick leave [rule 5-10.2(a)(3)].
 
  (5) Holiday pay for less than full-time appointments [rule 5-10.1].
 
  (6) Completion of a probationary period [rule 3-6.2].
 
(D) Eligibility for group insurance plans and benefit levels [rules 5-2.2 and 5‑11].
 
(E) Computation of total continuous service hours for all purposes, including, but not limited to, employment preference, layoff, recall, step increases, and, as authorized by statute, retirement.
 
(3)
Not a break in service.  An employee does not incur a break in service as a result of a temporary layoff.
 
(4)
 No substitution.  An employee cannot substitute annual leave, personal leave, school and community participation leave, banked leave, compensatory leave, sick leave, deferred hours, or any other paid status for a temporary layoff.
 
(5)
 Leave balances.  An employee is not entitled to have any leave balance paid off as a result of a temporary layoff.
(d) Return from temporary layoff.  An employee, including a probationary employee, shall return to work on the employee’s next regularly scheduled work period following the end of the temporary layoff.  The employee returns to work in the same position from which the employee was temporarily laid off.
[Rule 2-4 last amended effective August 26, 2007 ]
2-5 Employment Preference
2-5.1 Application and Protection
(a) Application.  Unless otherwise provided in an approved agency layoff plan, an employee can apply employment preference only within the employee’s current (1) principal department or autonomous entity, (2) county of employment, and (3) employee status code.  However, an employee cannot apply preference against a position or classification that is protected from the application of employment preference.
(b) Limited-term appointments.   An employee is not eligible to exercise employment preference or to be placed on a recall list at the end of a limited-term appointment, unless the employee meets one of the following criteria:
  (1) An employee with status gained from an indefinite appointment who accepts or receives a job change to a limited-term appointment may exercise employment preference at the end of the limited-term appointment.  Employment preference begins at the last classification level at which the employee achieved status in an indefinite appointment before accepting the limited-term appointment.  Employment preference may be exercised only within the principal department or autonomous agency that appointed the employee to the limited-term appointment.
  (2) A person who is recalled on a limited-term basis is not eligible to exercise employment preference at the end of the limited-term appointment but shall be returned to all recall lists for which the employee is eligible.
(c) Protected positions.  An employee occupying a protected position cannot be displaced from the employee’s current position by another employee exercising employment preference.  An employee in a protected position does not lose the right to apply employment preference to an unprotected position if the employee’s protected position is abolished.  The following positions are protected positions:
  (1) All positions in senior executive service (SES) classifications, including positions in SES-eligible classifications.
  (2) All positions in ECP Group 4 classifications.
  (3) All positions in senior executive management assistant service (SEMAS) classifications.
  (4) Any other position designated as protected in any other civil service rule or regulation.
(d) Agency layoff plans.  The state personnel director may approve an agency layoff plan that varies the application of employment preference within an agency.  An approved agency layoff plan may vary the application of employment preference in the following areas only:
  (1) The application of county preference based on organizational or geographic limits.
  (2) The application of employment preference between recognized autonomous entities of a principal department, if agreed by each appointing authority.
  (3) The application of employment preference into additional positions in class clusters approved by the appointing authority and the state personnel director.
  (4) The application of employment preference between eligible employee status codes.
2-5.2 Determination
Employment preference is determined by an employee’s total continuous service.
(a) Ranking employees with identical service.  If two or more employees have equal total continuous service, the appointing authority shall rank each employee by evaluating factors such as fitness for the position, education, experience, behavior, and performance.  An employee receiving a higher ranking is considered to have greater employment preference.  An employee cannot appeal a ranking to the civil service commission unless the ranking violates rule 1-8 [Prohibited Discrimination].
(b) Loss of employment preference. An employee who separates from the state classified service by methods other than a leave of absence, suspension, or layoff, loses any total continuous service accumulated before that separation.
(c) Effect of status.  An employee with status from current employment, regardless of the classification at which status was attained, has greater employment preference than an employee without status.
2-5.3 Qualification
An employee may apply preference against a least senior position if all of the following eligibility criteria are met:
(a) Position and eligibility.  An employee may apply preference (1) to a least senior position in a classification or class series in which the employee is serving or (2) to a least senior position in a classification or class series at or below the classification in which the employee previously attained status.
(b) Subclasses.  If subclass codes have been assigned to the least-senior position, the employee may apply preference only if the employee has been assigned one or more of the same subclass codes in the same classification or class series at or above the classification of the least senior position.
(c) Selective position requirements.  If selective position requirements have been established for the least senior position, the employee is eligible to apply preference only if the employee meets the selective position requirements.
2-5.4 Employee Rights to Apply Preference
An employee may apply preference only against another position within the employee’s current (1) principal department or autonomous entity, (2) county of employment, and (3) employee status code, unless otherwise permitted in an approved agency layoff plan.  An employee can apply preference to the least senior position for which eligible in the following order:
(a) The least senior position in the employee's current classification.
(b) The least senior position at a lower classification in the current class series or, alternatively, to the same or lower classification in a former class series in which the employee attained status, at the level that will minimize loss of pay.
2-5.5 Application of Employment Preference between Employees Covered by a Collective Bargaining Agreement and Employees not Covered by a Collective Bargaining Agreement
Application of employment preference between employees covered by a collective bargaining agreement and employees not covered by a collective bargaining agreement is subject to the following additional conditions:
(a) Qualification.  An employee may only displace a less senior employee in a position for which qualified in a classification in which the employee has previously attained status.
(b) Application; exhaustion.  An employee not covered by a collective bargaining agreement must first exhaust all bumping rights to other positions held by employees not covered by a collective bargaining agreement.  After exhausting all such rights, the employee not covered by a collective bargaining agreement may then bump into the position covered by a collective bargaining agreement that minimizes loss of pay, subject to the terms and conditions of the collective bargaining agreement.  If a collective bargaining agreement expressly provides for exclusively represented employees covered by the agreement to bump into positions not covered by an agreement, they may do so only after exhausting all bumping rights under the agreement, and then in accor­dance with this rule.  When more than one employee covered by a collective bargaining agreement is eligible to bump into a position not covered by a collective bargaining agreement, the most senior employee receives bumping rights.
(c) Total continuous service.  Employment preference is determined by an employee’s total continuous service.
(d) Limitation on seniority.  A collective bargaining agreement cannot prohibit an employee who accepts a supervisory position or any other employee who is not covered by a collective bargaining agreement from exercising employment preference into a position covered by the agreement.  In such bumping situations, seniority earned outside the unit applies, except as limited by any collective bargaining agreement provisions in effect on January 23, 1983.  This subsection only applies after the employee exhausts rights to displace other employees not covered by a collective bargaining agreement.
(e) Grievances.  A grievance based on the application and adverse effects of this rule is filed, processed, and resolved under the grievance procedure provisions that are applicable to the position into which the exercise of employment preference has occurred or is scheduled to occur.  This rule does not preclude a nonexclusively represented employee from filing a standard grievance, even after bumping into an exclusively represented position, if the employee contends a denial of the right to displace another nonexclusively represented employee.
2-5.6 Effective Date
The employment preference rights of an employee laid off or displaced before the effective date of any amendment to the rules or regulations are determined by the civil service rules and regulations in effect at the time of layoff or displacement.
2-5.7  No Application to Temporary Layoffs
This rule does not apply to temporary layoffs authorized in rule 2-4.4.
2-5.8  Application to Civil Service Commission Staff
Notwithstanding any other rule, regulation, or agency layoff plan, (1) civil service staff may apply employment preference only within the civil service commission and (2) employees of any other agency, including the principal department in which the civil service commission is placed for organizational purposes, cannot apply employment preference within the civil service commission.
[Rule 2-5 last amended effective August 26, 2007]
2-6 Discipline
2-6.1 Discipline
(a) Authorized. An appointing authority may discipline a classified employee for just cause.
(b) Just cause. Just cause includes, but is not limited to, the following:
  (1) Failure to carry out the duties and obligations imposed by agency management, an agency work rule, or law, including the civil service rules and regulations.
  (2) Conduct unbecoming a state employee.
  (3) Unsatisfactory service or performance.
(c) Forms of discipline. Permissible discipline includes, but is not limited to, the following:
  (1) An unsatisfactory probationary rating, an interim rating, or an unsatisfactory follow-up rating.
  (2) A written reprimand.
  (3) Reduction in pay.
  (4) Suspension without pay.
  (5) Demotion
  (6) Dismissal from the classified service.
(d) Imposing discipline.  The appointing authority shall impose discipline in a manner consistent with the civil service rules and regulations and any applicable agency work rules.  When appropriate, an appointing authority shall use corrective measures and progressive discipline.  However, if an infraction is sufficiently serious, an appointing authority has the discretion to impose any penalty, up to and including dismissal, provided the penalty is not arbitrary and capricious.
(e) Notice of mandatory dismissal for first offense.   If an appointing authority establishes a mandatory dismissal penalty for a first offense, it must give prior written notice of the mandatory penalty to its employees.
2-6.2 Disciplinary Conference
(a) Disciplinary conference required.  If an appointing authority is contemplating imposing discipline, the appointing authority shall schedule a disciplinary conference.   The appointing authority shall notify the employee in writing of the conference, charges, and possible penalties.  If the employee fails to attend the disciplinary conference, the employee waives the right to a conference.
(b) Disciplinary conference not required.  An appointing authority is not required to hold a disciplinary conference in any of the following circumstances:
  (1) The appointing authority suspends an employee for investigation, as provided in rule 2-6.4 [Suspension for Investigation].
  (2) The appointing authority suspends an employee charged with a crime, as provided in rule 2-6.5 [Suspension for Criminal Charges].
  (3) The employee is not on an approved leave of absence and has failed to report for work for 3 or more consecutive scheduled work days.
2-6.3 Representation
An employee who is scheduled for a disciplinary conference may be represented at the conference by a person authorized in rule 6-5 [Rights of Employees].   The charged employee is responsible for notifying the employee’s representative of the conference.  The conference will not be unreasonably delayed due to the representative’s unavailability.
2-6.4 Suspension for Investigation
An appointing authority may suspend an employee with or without pay for up to 7 calendar days to conduct an investigation.  On or before the end of the 7-day suspension, the appointing authority shall (1) reinstate the employee, (2) discipline the employee, or (3) extend the investigative suspension with pay.  If the appointing authority extends the investigative suspension, a disciplinary conference is not required, but the appointing authority shall give the employee written notice of the reasons for the extension.
2-6.5 Suspension for Criminal Charges
(a) Suspension.  If an employee is charged with a criminal offense, the appointing authority may suspend the charged employee with or without pay.  The appointing authority is not required to hold a presuspension disciplinary conference before imposing the suspension, but shall give the employee written notice of the suspension.  However, at the request of the employee, the appointing authority shall meet with the employee to review the suspension.
(b) End of suspension.  The suspension may remain in effect until (1) the appointing authority imposes discipline or (2) the employee gives written notice to the appointing authority of the final resolution of the criminal charges, whichever occurs first.  If the employee gives written notice before the appointing authority has imposed discipline, the appointing authority may continue the suspension for up to an additional 7 calendar days to conduct an investigation, as provided in rule 2-6.4.
[Rule 2-6 last amended effective August 26,2007]
2-7 Drug and Alcohol Testing
2-7.1 Prohibited Activities
A classified employee shall not do any of the following:
(a) Consume alcohol or use drugs while on duty.
(b) Report to duty or be on duty with a prohibited level of alcohol or drugs present in the employee's bodily fluids.
(c) Refuse to submit to a required drug test or alcohol test.
(d) Interfere with any testing procedure or tamper with any test sample.
2-7.2 Testing Classified Employees
An appointing authority shall require an employee, as a condition of continued employment, to submit to a drug test or an alcohol test, as provided in this rule.
(a) Tests authorized. The following tests are authorized:
  (1) Reasonable suspicion testing.   An employee shall submit to a drug test or an alcohol test if there is reasonable suspicion that the employee has violated this rule.
  (2) Preappointment testing.  An employee not occupying a test-designated position shall submit to a drug test if the employee is selected for a test-designated position.
  (3) Follow-up testing.  An employee shall submit to an unscheduled follow-up drug test or alcohol test if, within the previous 24 months, the employee has done any of the following:
    (A) Voluntarily disclosed drug or alcohol problems.
    (B) Entered into or completed a rehabilitation program for drug or alcohol abuse.
    (C) Failed or refused a preappointment drug test.
    (D) Been disciplined for violating this rule.
  (4) Random selection testing.   A test-designated employee shall submit to a drug test and an alcohol test if the employee is selected for testing on a random selection basis.
  (5) Post-accident testing.  A test-designated employee shall submit to a drug test or an alcohol test if there is evidence that the test-designated employee may have caused or contributed to a serious work accident.
(b) Limitations on certain tests.  An employee subject to testing under this rule may be required to submit only to a drug test, only to an alcohol test, or to both tests, subject to the following limitations:
  (1) Preappointment testing. Preappointment testing is limited to drug testing.
  (2) Follow-up testing.  The appointing authority may require an employee who is subject to follow-up testing to submit to no more than six unscheduled drug tests or alcohol tests within any 12-month period.
  (3) Random selection testing.  The number of drug tests conducted in any one year on a random selection basis cannot exceed 15 percent of the number of all test-designated positions.  The number of alcohol tests conducted in any one year on a random selection basis cannot exceed 15 percent of the number of all test-designated positions.
2-7.3 Testing New Hires; Conditional Offer of Employment
Any offer of employment to a person who is not currently employed in the classified service is a conditional offer of employment.  The offer of employment is conditioned upon the person submitting to and passing a preemployment drug test.  A person given a conditional offer of employment is prohibited from performing any duties until the person has submitted to and passed the preemployment drug test.
2-7.4 Penalties
(a) Classified employees.
  (1) All employees.  An appointing authority shall impose discipline, up to and including dismissal, for violation of this rule.  An appointing authority shall prescribe in its agency work rules the range of penalties, including any mandatory penalties, for violating this rule.
  (2) Employee selected for test-designated position.  An employee selected for a test-designated position is prohibited from serving in the test-designated position until the employee has submitted to and passed a preappointment drug test.  If the employee fails or refuses to submit to the drug test, interferes with a test procedure, or tampers with a test sample, the following occurs:
    (A) The employee cannot be appointed, promoted, assigned, recalled, or otherwise placed in the test-designated position.
    (B) The employee is removed from all applicant pools for test-designated positions and is disqualified from any test-designated position for a period of 3 years.
    (C) If the employee interferes with a test procedure or tampers with a test sample, the employee may also be disciplined as provided in subsection (a)(1).
(b) New hires.
  (1) Rescission of conditional offer of employment.  If a person given a conditional offer of employment fails or refuses to submit to the preemployment drug test, interferes with a test procedure, or tampers with a test sample, the appointing authority must rescind the conditional offer of employment in writing.  The written rescission must include notice of the complaint procedure and the 14-day time limit provided in subsection (b)(2).  A person whose conditional offer of employment is rescinded must not be appointed to the position in the classified service.  The person also is removed from all applicant pools and is disqualified from appointment to the classified service for a period of 3 years.
  (2) Complaint by applicant.   If a person claims that the rescission of the person’s conditional appointment as authorized in subsection (b)(1) was contrary to article 11, §5, of the constitution or a civil service rule or regulation, the person may file a written complaint with the state personnel director.
    (A) A complaint must be received by the state personnel director within 14 calendar days after the appointing authority mailed the written notice of the rescission of the conditional offer of employment and this complaint procedure.  The person must also file a copy of the complaint with the appointing authority.
    (B) The director shall review the complaint and issue a decision under procedures authorized in the regulations.
    (C) If the director determines that the rescission was contrary to article 11, §5, of the constitution or a civil service rule or regulation, the director may order an appropriate remedy, including, but not limited to, reinstating the offer of employment, ordering another drug test, or requalifying the person for appointment to the classified service.
    (D) Either the person or the appointing authority may appeal the director’s final decision to the civil service commission.
2-7.5 Self-reporting
(a) Classified employees.
  Reporting.  An employee who voluntarily discloses to the appointing authority a problem with controlled substances or alcohol cannot be disciplined for such disclosure if, and only if, the problem is disclosed before the occurrence of any of the following:
  (1) For reasonable suspicion testing, before the occurrence of an event that gives rise to reasonable suspicion that the employee has violated this rule.
  (2) For preappointment testing, follow-up testing, and random selection testing, before the employee is selected to submit to a drug or alcohol test.
  (3) For post-accident testing, before the occurrence of any acci