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(2) It is the objective of this policy to establish uniform practices and procedures for the administration of the preference by public employers covered by the Persons with Disabilities Employment Preference Act, 39-30-101, et seq., MCA.

(a) the individual is a United States citizen;

(b) the individual has resided continuously in the state for at least 1 year immediately before applying for employment;

(c) if applying for municipal or county employment, the individual has resided for at least 30 days immediately before applying for employment in the city, town, or county in which employment is sought; and

(d) the individual meets those requirements considered necessary by a public employer to successfully perform the essential duties of the position for which the individual is applying."

(2) A person with a disability must be an individual whose disability is certified by the department of public health and human services, as provided in ARM 2.21.1427.

(3) As provided in 39-30-103, MCA, an eligible spouse is "the spouse of a person with a disability determined by the department of public health and human services to have a 100% disability and who is unable to use the employment preference because of the person's disability."

(4) The marital relationship will be verified by the department of public health and human services in accordance with Montana law.

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(a) "any department, office, board, bureau, commission, agency, or other instrumentality of the executive, judicial, or legislative branch of the government of the state of Montana; and

(b) any county, city, or town.

(2) The term does not include a school district, a college of technology, a community college, the board of regents of higher education, the Montana university system, a special purpose district, an authority, or any political subdivision of the state other than a county, city, or town."

(3) All permanent and seasonal employment is covered by the employment preference.

(4) Temporary and short-term employment is excluded from the employment preference. Temporary employment is established for a definite period of time not to exceed 12 months. Shortterm employment is established for a definite period not to exceed 90 days in one year.

(5) As provided in 39-30-103, MCA, position means "a position occupied by a permanent or seasonal employee as defined in 2-18-101, MCA, for the state or a position occupied by a similar permanent or seasonal employee with a public employer other than the state. However, the term does not include:

(a) a position occupied by a temporary employee as defined in 2-18-101, MCA, for the state or similar temporary employee with a public employer other than the state;

(b) a state or local elected official;

(c) employment as an elected official's immediate secretary, legal adviser, court reporter, or administrative, legislative, or other immediate or first-line aide;

(d) appointment by an elected official to a body such as a board, commission, committee, or council;

(e) appointment by an elected official to a public office if the appointment is provided for by law;

(f) a department head appointment by the governor or an executive department head appointment by a mayor, city manager, county commissioner, or other chief administrative or executive officer or a local government; or

(g) engagement as an independent contractor or employment by an independent contractor."

(6) Also excluded is appointment by lawful authority to fill an unexpired term in an elected office.

(7) A temporary employee shall not be considered a current employee for purposes of ARM 2.21.1423.   If a temporary employee is considered in the applicant pool for permanent or seasonal   employment, the selection is considered an initial hire and the employment preference must be applied.

(a) the applicant has claimed a preference as required in ARM 2.21.1414, and

(b) the hiring is an initial hiring to employment covered in ARM 2.21.1422.

(2) A preference-eligible applicant who is a person with a disability shall be hired over any other preference-eligible applicant with substantially equal qualifications when the applicant also meets the requirements of this rule.

(3) As provided in 39-30-103, MCA, an initial hire means "a personnel action for which applications are solicited from outside the ranks of the current employee of:

(a) a department, as defined in 2-15-102, MCA, for a position within the executive branch;

(b) a legislative agency for a position within the legislative branch;

(c) a judicial agency, such as the office of supreme court administrator, office of supreme court clerk, state law library, or similar office in a state district court for a position within the judicial branch;

(d) a city or town for a municipal position, including a city or municipal court position; and

(e) a county for a county position, including a justice's court position.

(4) A personnel action limited to current employees of a specific public entity identified in [this rule], current employees in a reduction-in-force pool who have been laid off from a specific public entity identified in [this rule], or current participants in a federally-authorized employment program is not an initial hiring."

(5) A current employee of an agency who meets eligibility requirements may claim and shall receive the persons with disabilities preference when the employee is considered an applicant for a position which is an initial hire as that term is defined in this policy, whether or not the agency originally limited recruitment for the position to current employees.

(6) As provided in 39-30-103, MCA, substantially equal qualifications means "the qualifications of two or more persons among whom the public employer cannot make a reasonable determination that the qualifications held by one person are significantly better suited for the position than the qualifications held by the other persons."

(7) Substantially equal qualifications does not mean a situation in which two or more applicants are exactly equally qualified.   It means a range within which two applicants must be considered to be substantially equal in view of the qualifications set for the job.   Qualifications shall include job-related competencies, which are knowledge, skill, and behaviors.

(8) The public employer covered by the Persons with Disabilities Employment Preference Act, 39-30-101 et seq., MCA, has the burden of proving by a preponderance of the evidence that the employer made a reasonable determination of the applicant's qualifications for the position and that substantially equally qualified applicants were afforded preference.

(9) The public employer shall retain a record of the hiring decision for at least 90 calendar days after the notice of the hiring decision.   Depending on the selection procedures used, the record may include, but is not limited to, the following:

(a) a copy of the vacancy announcement or external recruitment announcement;

(b) a record of the selection procedure used to screen job applicants;

(c) a record of written and oral evaluations of applicants;

(d) a copy of applications that were considered for the specific vacancy; and

(e) a record of the notice of the hiring decision, the written request for an employer's explanation of the hiring decision by an applicant, and the employer's written explanation.

(2) As provided in 39-30-206, MCA, "a job applicant who believes he has an employment preference shall claim the preference in writing before the time for filing applications for the position involved has passed."   An employer may provide a standard form for claiming employment preference.   However, failure to complete such a form does not negate an applicant's claim for preference, as long as a reasonable and timely claim is made as required by this rule.   As provided in 39-30-206, MCA, "failure to make a timely employment preference claim for a position is a complete defense to an action in regard to that position under 39-30-207, MCA."

(3) At the place where applications are received, the hiring authority or other agency receiving applications shall inform applicants of requirements for documentation of eligibility for preference which the applicant may be required to provide to the hiring authority.

(4) The person claiming eligibility for employment preference is responsible for providing all information necessary to document the claim.

(5) The hiring authority must obtain documentation of eligibility for employment preference at least from the applicant who is selected for the vacancy.

(6) The hiring authority shall determine when in the selection process submission of documentation of eligibility for the preference shall be provided by the applicant.   This may be at the time an offer of employment is made or at an earlier time specified by the hiring authority.

(7) Where appropriate, documentation will include the following or an acceptable substitute:

(a) from a person with a disability, a document from the department of public health and human services certifying that the applicant is eligible for preference as a person with a disability;

(b) from an eligible spouse of a person with a disability, a document from the department of public health and human services certifying the person with a disability has a total disability, is unable to use the preference because of the disability, and is married to the eligible spouse in accordance with Montana law.

(c) a statement signed by the applicant attesting to U.S. citizenship, and Montana or local residency.   Where the hiring authority has reason to question the validity of such statement, further evidence may be requested.   For U.S. citizenship such evidence may include, but is not limited to, a birth certificate, voter registration card, U.S. passport, or naturalization papers.   For Montana residency, evidence may include, but is not limited to, payment of state of Montana income tax, Montana driver's license, vehicle registration, or hunting and fishing license.

(8) All documentation submitted to a public employer, an entity designated to receive applications for a public employer, or to the department of public health and human services in support of a claim of employment preference shall be considered confidential.

(9) A public employer may release general information relating to a successful applicant's eligibility for preference upon request.   The information provided should not be specific to the nature of the disability or other personally identifying information.

(10) Applicants shall be notified that intentional misrepresentation of the claim for preference is cause for immediate discharge.

(2) The spouse of a person who is totally disabled qualifies for employment preference as long as:

(a) the person who is totally disabled is unable to use the preference due to the severity of the disabling condition; and

(b) the spousal relationship continues.

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(1) As provided in 39-30-107, MCA, "the department of public health and human services shall certify persons with disabilities for the purpose of employment preference."

(2) In order to be eligible for employment preference, a person with a disability must be certified by the department of public health and human services to have, as provided in 39-30-103, MCA, a "physical or mental impairment that substantially limits one or more major life activities, such as writing, seeing, hearing, speaking, or mobility, and which limits the individual's ability to obtain, retain, or advance in employment."   The certification process may also consider impairments which limit an individual's ability to know or reason; or an individual's ability to make a choice or decision.   The person with a disability shall have a professional diagnosis establishing the disabling condition. Medical evidence shall be provided by a licensed physician or a licensed practitioner competent to treat and diagnose the particular disabling condition.

(3) Each disabling condition will be individually evaluated on a case-by-case basis to determine eligibility for employment preference with the exception of those persons specifically excluded in this rule.

(4) As provided in 39-30-103, MCA, "the term mental impairment does not include alcoholism or drug addiction and does not include any mental impairment, disease, or defect that has been asserted by the individual claiming the preference as a defense to any criminal charge."

(5) The department of public health and human services will establish a process and standards for certifying persons with disabilities for employment preference.   The process shall include, but is not limited to:

(a) a determination established by a professional medical diagnosis that the person has a physical or mental impairment as defined by these rules; and

(b) a determination that the physical or mental impairment substantially limits one or more major life activities and as a consequence of the disability, the person's ability to obtain, retain, or advance in employment is substantially limited; or

(c) a determination by the counselor and medical consultant designated by the department of public health and human services that the disability is so severe or apparent that it has lead to or could lead to employment discrimination which would substantially limit the person's ability to obtain, retain, or advance in employment; or

(d) a determination that the person with a disability is totally disabled, is unable to use the preference because of the disability and therefore the person's spouse is eligible for preference.

(6) Each determination will be provided in writing in a standard form as established by the department of public health and human services.   The written notice shall include a statement regarding the duration of the certification.   The written notice shall be provided to the person with a disability within 30 days of the receipt of all information necessary to make the certification decision.

(7) The process shall allow for permanent certification of those impairments (in the judgment of the counselor and medical consultant designated by the department of public health and human services) considered to be permanent and shall allow for loss of certification for those impairments which may be considered temporary.

(8) The person requesting certification by the department of public health and human services is responsible for providing all information necessary to document the claim to be certified for employment preference.   All costs of obtaining the necessary information, including medical evidence to substantiate the claim, are the responsibility of the person requesting the certification.

(9) The written notice of certification for an eligible spouse must clearly state the preference-eligible person is an eligible spouse.

(10) The department of public health and human services shall ensure the confidentiality of information gathered when making employment preference determination in accordance with federal and state law and as provided in ARM 2.21.1424.

(11) Any person with a disability, as provided in 39-30-103, MCA, who is dissatisfied with the department of public health and human services' certification decision regarding eligibility for employment preference, shall be advised of the right to file a request for an administrative review of that action and right to a fair hearing if dissatisfied with the outcome of the administrative review.   The administrative review shall be conducted by the administrator of vocational rehabilitative services division or a designee.   The fair hearing shall be conducted in accordance with the fair hearing rules of the department of public health and human services as provided for in ARM 46.2.201 et seq.

(2) Written notice must be given to each applicant claiming preference who is actually considered by the public employer as an applicant for a specific vacancy.

(3) Public employers who maintain active application files or conduct continuous recruitment must give written notice to each person claiming preference whose application is active in accordance with the employer's selection procedures and who is actually considered for a specific vacancy.   Notice must be given at the time a vacancy is filled or by the end of each month in which a vacancy is filled.

(4) The public employer must maintain a record of which applicants were notified and the date the notification was sent for at least 90 days after notification of the hiring decision.

(2) The written request for an explanation shall contain, but is not limited to, such information as is necessary to determine:

(a) the applicant's name and address;

(b) that the applicant is requesting an explanation from the hiring authority regarding the hiring decision; and

(c) the position for which the person applied.

(3) As provided in 39-30-207, MCA, "Within 15 days of receipt of the request, the public employer shall give the applicant a written explanation."   The written explanation shall contain specific job-related reasons why the person claiming preference was not hired.   The explanation should be dated and identify the specific vacancy in question.   The employer shall safeguard the confidentiality of information the employer has considered in accordance with state and federal law and as provided in ARM 2.21.1424.

(4) All days are calendar days.

(1) "An applicant may, within 90 days after receipt of notice of the hiring decision, file a petition in district court in the county in which his application was received by the public employer," as provided in 39-30-207, MCA.

(2) All days are calendar days.

(2) An agency that believes such a conflict exists shall submit the position and documentation of the laws or regulations in conflict for review by the State Personnel Division, Department of Administration, P.O. Box 200127, Helena, Montana 59620-0127.   The division shall determine if the position is excluded from application of the preference.

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(1) The Department of Administration administers a Voluntary Employees Beneficiary Association (VEBA) that allows Montana public employees to access health reimbursement accounts for themselves, their spouses, and other tax-qualified dependents to pay qualified health care expenses. The VEBA is funded by employer contributions and earnings from investment of the contributions. This program is called the Montana VEBA Health Reimbursement Account (Montana VEBA HRA), and is the plan established under Title 2, chapter 18, part 13, MCA. 

(2) The objective of these rules is to establish uniform and cost-effective procedures for plan administration.

In addition to the definitions found in 2-18-1303, MCA, the following definitions apply to this subchapter:

(1) "Dependent" means the tax-qualified dependent of the participant as determined under section 105(b) of the Internal Revenue Code, 26 USC 105(b). A tax-qualified dependent includes the participant's spouse recognized under the laws of the state in which the marriage was first established, and any child who has not, as of the end of the taxable year, attained age 27.

(2) "Eligible to retire" means eligible for benefits from the employer's given retirement system.

(3) "Employee" means a person employed in a pay status of at least 1040 hours each year. An employee is not an independent contractor or person hired by the employer under a personal services contract, a student intern, an employee employed in a seasonal position, or certain nonresident aliens.

(4) "Group" means a minimum of five employees employed by the same employer and formed pursuant to ARM 2.21.1937.

(5) "HRA" means a health reimbursement account to pay qualified health care expenses through employer contributions and investment earnings. The funds must be used for qualified health care expenses until funds are exhausted.

(6) "Member" means an employee whose work unit voted to establish a group.

(7) "Participant" means a member who separates from service, and for whom an account is established in the Montana VEBA HRA.

(8) "Qualified health care expenses" means expenses for a participant or the participant's dependent for medical care, as defined by section 213(d) of the Internal Revenue Code, 26 USC 213(d). Examples of qualified health care expenses are prescription drug costs, hospital and physician charges, and health insurance premiums.

(9) "Separation from service" or "Separate from service" means the employee retires or otherwise terminates employment and includes a voluntary or involuntary separation from service. The separation from service must be a separation from the employer. If the separation is a transfer within the same public entity, plan eligibility is based on the employee's position in the new group and the group criteria. If the separation is a transfer to another public entity without a Montana VEBA HRA group, the employee receives any remaining leave as provided by the employer's leave policy.

(1) The department shall:

(a) provide educational presentations about the Montana VEBA HRA upon request;

(b) review and approve requests to become a contracting employer;

(c) evaluate, modify as necessary, and approve a contracting employer's proposal for group structure;

(d) develop a plan for administration of the Montana VEBA HRA;

(e) enforce group participation requirements in ARM 2.21.1937 and applicable nondiscrimination requirements in section 105(h) of the Internal Revenue Code, 26 USC 105(h) by not allowing discriminatory groups to form or to continue to exist;

(f) establish a procedure to receive and deposit employer contributions consistent with this subchapter and applicable federal laws;

(g) establish claims adjudication procedures consistent with applicable laws;

(h) provide accounting and recordkeeping of all participant accounts;

(i) ensure the Montana VEBA HRA operates to preserve its tax-exempt status and that no part of the net earnings or trust assets inure to the benefit of any one participant, other than by payment of qualified health care expenses and reasonable administrative expenses; and

(j) determine investment vehicles available for participant account funds in the Montana VEBA HRA.

(2) Contracting employers shall:

(a) allow educational presentations;

(b) define groups and enroll eligible members;

(c) determine the sources of employer contributions available to a group. Allowable sources may include sick leave cash-outs, annual vacation leave cash-outs to the extent permitted by state statute, and other sources not prohibited by state statute;

(d) determine whether current employees are members of an existing group and notify employees of any change in status;

(e) notify an employee hired into a plan-eligible position of the employee's change in status to a member;

(f) notify the department when an employee becomes a member; and

(g) notify existing members 30 days before the group's anniversary date to vote.

(3) An employer shall provide to the department, or the appropriate administering entity, the information necessary to operate the plan and establish the employer as a contracting employer. The department, in partnership with a contracting employer, shall provide to the employees the information to actively participate in a Montana VEBA HRA group.

(4) The department may delegate all or a portion of its administrative duties in this rule to an administrator.

(5) The department shall exercise its administrative duties in a uniform, nondiscriminatory manner, having all necessary power and discretion to accomplish those purposes.

(1) Contracting employers may not be charged a fee by the department to establish one or more groups.

(2) Participants may be required to pay monthly administration fees and shall pay a percentage of the monthly Montana VEBA HRA administration expenses as determined by the department. The fee begins when the contracting employer contribution is deposited into the participant account, and continues until the account has a zero balance.

(1) A group may be formed by:

(a) employees in an office, department, board, commission, attached agency, county, incorporated city or town, school district, unit of the university system, and the judicial and legislative branches of state government;

(b) employees in an organizational subdivision of an employer, such as a division, bureau, work unit, institution, etc.;

(c) employees in a bargaining unit; or

(d) other groups of employees defined by an employer that are not designed to provide individual decision-making regarding participation.

(2) A group may consist of employees who are:

(a) all currently eligible to retire;

(b) all currently ineligible to retire; or

(c) a mix of those eligible and ineligible to retire.

(3) No group may be formed with fewer than five employees.

(4) No group may be formed to benefit a select group of the highest paid employees. "Highest paid" means an annual compensation in the top 25% of employees ranked on the basis of total compensation paid during the year.

(5) Members in a group must be:

(a) eligible for sick leave;

(b) eligible for benefits with the employer;

(c) receiving an employer contribution for group benefits under 2-18-703, MCA, or other employer contribution to benefits; and

(d) active in the employer's retirement system.

(6) When a group is formed:

(a) members may not opt out of the group;

(b) current employees of the same employer not already in the group may not opt into the group;

(c) a participant may return to work but does not become a new member of a group unless hired into a job position eligible for the Montana VEBA HRA and meets all requirements in (5); and

(d) if an employee's circumstances change such that the employee becomes eligible to be a member of an existing group, the employee automatically becomes a member of this group.

(1) An employer may initiate or facilitate an election for employees to vote to form a new group in the Montana VEBA HRA. However, if at least 25% of employees request an election, an employer shall facilitate the election within 60 calendar days from the date of the request. Employers shall notify employees of a vote at least 15 days prior to the first day of the voting period. 

(2) Employees shall determine the contribution sources before a vote is conducted. If the employees cannot decide on the contribution sources, the employer may conduct a straw poll to determine contribution sources. The employer shall allow all employees eligible to vote a reasonable amount of time to submit their choice for contribution sources. Once a majority agrees upon the contribution source, the contribution source must be listed on the ballot. If a majority cannot agree on contribution sources for an existing group, the existing group structure and contribution sources remain in place. If a majority cannot agree on proposed contribution sources for a new group, the group does not form.

(3) Employees who are members of a collective bargaining unit may decide to either participate with other employees in the formation of a group or to initiate the election through the bargaining unit. If the employees of a collective bargaining unit decide to participate with noncollectively bargained employees, the employer shall obtain written agreement from the union representing the bargaining unit employees.

(4) Employers shall make a reasonable effort to maintain the privacy of each individual ballot. Employers shall permit absentee voting for employees not present during an election.

(5) If the majority of employees vote to establish a group or change an existing group, then all employees eligible to vote, any employees who later become eligible, and any eligible employees subsequently hired into positions eligible for the Montana VEBA HRA become members of the group. If the majority of the employees vote to become members, employees who voted not to establish a group or change an existing group, and any eligible employees who did not return a ballot, become members of the group and may not opt out.

(6) If at least 25% of the members of the group request an annual election, members of a group may hold a vote to:

(a) continue as an active group with the same contribution sources;

(b) continue as an active group with different contribution sources; or

(c) disband the group.

(7) If members vote to disband the group, employees are not required to wait 12 months to form another group.

(8) If members vote to continue as an active group with the same or different contribution sources, an employer may not conduct another election for that group until 12 months from the date of the election.

(9) The effective date of the vote is the first day of the pay period/cycle immediately following the closing day of the voting period. The voting period for an existing group must conclude no later than the day before the anniversary date of the group. The employer shall announce the results of the vote to the employees or members of the group, as applicable, at the completion of the vote.

(10) If no group members or less than 25% of group members request an annual election by the end of the 30-day notice period immediately prior to the anniversary date of the group, the group's existing structure and contribution sources continue without modification for 12 months.

(1) A member is a participant of the Montana VEBA HRA at the time the member separates from service, submits a signed and completed enrollment form to the department or administrator, as applicable, and the contracting employer makes a contribution to the participant's account. 

(2) If a member dies as an active employee, all accrued leave benefits must be paid as taxable income. The member is not a participant.

(3) Each participant may direct the investment of funds in the participant's account among the investment vehicles offered. The department shall identify a default investment vehicle for a participant who fails to select an investment vehicle.

(4) Participants may make investment changes on a monthly basis.

(5) A participant account closes when the balance of the account is zero.

(1) Employer contributions into an account, the accumulation of interest or other earnings in an account, and payments from an account for qualified health care expenses are tax-exempt, as provided in 15-30-2110, MCA, and under applicable federal laws to the extent that the plan meets requirements under applicable sections of the Internal Revenue Code.

(2) Each contracting employer shall make contributions to the Montana VEBA HRA for participants. The department or its administrator, as applicable, shall establish an account for each participant.

(3) Sick leave is a contribution source, if approved by a vote of the group, and may convert tax-free as a contribution. The sick leave contribution rate is 25% of the member's balance at time of separation from service. As agreed upon by the group, the sick leave balance of 25% may be divided as defined by the department between a Montana VEBA HRA contribution and taxable cash.

(4) Annual vacation leave is a contribution source, if approved by a vote of the group, and may convert tax-free as a contribution. The annual vacation leave rate is 100% of the member's balance at the time of separation from service.

(5) Other contributions may be allowed as permitted by statute and federal law, but may not be discriminatory in favoring highly compensated employees. All members of a group must participate in any form of approved contributions.

(1) If a deceased participant's account has a positive account balance, the participant's surviving spouse, if any, may file claims for qualified health care expenses incurred by the participant up until death, the surviving spouse, and other tax-qualified dependents. 

(2) If a deceased participant's account has a positive account balance and the participant dies without a surviving spouse but with other tax-qualified dependents, the dependents (or guardian) may file claims for qualified health care expenses of those dependents.

(3) If the participant dies with no surviving spouse or other tax-qualified dependents, or if the last surviving tax-qualified dependent of the deceased participant dies, or when all surviving dependents of the deceased participant lose tax-qualified status, then the executor or administrator of the deceased participant's estate may file claims for qualified health care expenses incurred by the deceased participant or tax-qualified dependent up to date of death or loss of tax-qualified status. If there are no qualified health care expenses to reimburse, the remaining account balance must be allocated on a per capita basis to all participant accounts (e.g., remaining account balance of $2,500 for 1,000 participants equals $2.50 per participant on a per capita basis).

(4) If any participant account is unclaimed for at least 35 months since the whereabouts of the person entitled to the account were last known to the administrator, the participant's account becomes the property of the Montana VEBA HRA. Unclaimed account funds must be allocated on a per capita basis to all participant accounts (e.g., remaining account balance of $2,500 for 1,000 participants equals $2.50 per participant on a per capita basis).

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

(1) "Assignee" means the financial institution or non-profit organization that receives the assigned portion of the employee's wages.

(2) "Assignor" means the state employee who assigns a portion of the employee's wages to a financial institution or a non-profit organization.

(3) "Central payroll" means the work unit located in the department of administration that is responsible for final payroll processing.

(4) "Financial institution" means any commercial bank, savings and loan association, or credit union.

(5) "Insurance" means the products offered by insurance companies authorized to conduct business in this state and that have been approved by the insurance commissioner pursuant to the applicable provisions of the laws governing the filing of insurance rates and forms.

(6) "Investment programs" mean annuities, bonds, retirement programs, and other legitimate investment opportunities.

(7) "Mandatory payroll deduction" means a deduction that is withheld from the employee's pay as required by law, a court, a collective bargaining agreement, or any other legal instrument.

(8) "Non-profit organization" means any charitable, educational or scientific organization which qualifies under federal tax law as an organization able to receive tax deductible contributions.

(9) "Voluntary payroll deduction" means an automatic deduction requested by a state employee to be withheld from the employee's state payroll warrant which is not otherwise provided for by federal or state law, rule, regulation, or collective bargaining agreement.

(1) An employee shall submit time records after the close of each biweekly pay period and in the manner prescribed by the employing agency.

(2) An employee shall submit claims for reimbursement of travel and relocation expenses in the manner and within timelines prescribed by the agency, but no later than three months after incurring the expense. The employee shall attach all necessary receipts and documentation to the claim. In accordance with the Employee Travel Policy found at https://montana.policytech.com/docview/?docid=154&public=true under the travel category, an employee who fails to turn in travel and relocation claims within three months of incurring the expense waives the right to reimbursement. The agency shall process all employee travel and relocation reimbursement claims through the state's central payroll system.

(3) If an employee fails to submit a time record as required in this rule, the employee's supervisor shall submit a time record based on the supervisor's knowledge of hours worked, including overtime or compensatory time, and leave used. The employee is responsible for documenting and notifying the agency of any necessary corrections after the fact.

(4) If an employee fails to submit time records and travel claims as provided in this rule, the employee is subject to disciplinary action as provided in the Discipline Handling Policy, ARM 2.21.6505 et seq.

(2) In accordance with 39-3-205, MCA, if an employee is discharged by reason of an allegation of theft of property or funds connected to the employee's work, the agency may withhold from the employee's final paycheck an amount sufficient to cover the value of the theft.

(2) Warrants for money due the employee or the estate will be reissued in the name of the designated person and will be delivered to that person without recourse to estate administration procedures if the properly completed form is on file with the employing agency at the time of the employee's death.

(3) Only one warrant will be issued by the department of administration as a replacement for each warrant the decedent would have received.

(4) The "designation of person authorized to receive decedent's warrants" form is required. Instructions are printed on the form and must be reviewed for accuracy by the employing agency.

(5) An employee may change a designation at any time by filing a new designation form. Upon termination and after all salary, benefits, and travel warrants made payable to the employee have been delivered to the employee and paid, the designation must be automatically canceled and filed in the employee's personnel file.

(6) Upon the death of an employee, the employing agency completes the information on the designation form (employee's name, date of death, and signature of certifying officer) . If the employee has completed an older form that does not have this information printed on the side, this information must be typed on the right-hand margin. The employing agency keeps the original of the designation form on file at all times. Two photocopies of the designation form must be sent to the department of administration with each unnegotiated warrant. The designation form and unnegotiated warrants may not be sent to central payroll.

(7) When an employee paid through electronic fund transfer dies, the last regularly occurring pay warrant will be electronically deposited into the employee's checking or savings account. The final remittance for any unpaid wages, benefits and/or travel claims will be generated as a warrant and delivered to the designee.

(8) Applicable warrants are to be identified by number, date, and amount on the reverse side of the original designation. After all warrants have been delivered to the designee, the designation must be canceled and filed.

(9) Warrants must be delivered to a designee by the department of administration and accompanied by a photocopy of the designation on file.

(10) Neither refund of retirement contributions nor payment of death benefits is covered by the designation of decedent's warrant.

(a) purchasing insurance;

(b) depositing money into a financial institution or investment program;

(c) contributing to a non-profit organization through the state employees' combined giving campaign; and

(d) transferring funds to any organization when the department of administration determines that allowing the deduction is in the best interests of the state.

(2) All requests for voluntary payroll deductions must be submitted in writing to central payroll and signed by the authorized representative of the firm or organization. The following information must be provided:

(a) the purpose of the deduction;

(b) an agreement not to solicit state employees during normal working hours unless a permit has been granted by the department of administration, general services division;

(c) an agreement to remit, upon telephone notice by central payroll, any corrected balance due the state of Montana by placing a check in the mail within 24 hours;

(d) forms for voluntary payroll deduction for approval by central payroll; and

(e) the name, address, and telephone number of the responsible contact person representing the firm or organization.

(3) Any firm or organization requesting approval of a voluntary deduction must present a minimum of 50 state employees' signatures on a petition in support of the request.

(4) In reviewing applications for payroll deduction, central payroll investigates:

(a) compliance with all federal and state regulatory requirements;

(b) to ensure that applicants have no on-going consumer investigations; and

(c) any other relevant factors.

(5) When a voluntary deduction is approved, an employee shall request the deduction by contacting the employing agency's payroll section.

(6) Central payroll may revoke approval for a voluntary payroll deduction if:

(a) the number of state employees authorizing the voluntary payroll deduction falls below 50. Central payroll must send immediate notice to the authorized representative for the voluntary payroll deduction that the deduction has fallen below the minimum requirement and that the firm or organization has 30 days to meet the requirement;

(b) the organization or the organization's agents solicit state employees during normal working hours without proper authorization or solicit state employees by implying that the organization's product is approved, authorized or in any way supported by the state; or

(c) the organization fails to comply with any of the requirements in this rule.

(7) When the approval of a payroll deduction has been revoked, central payroll must send immediate notice by certified mail to the contact person responsible for the payroll deduction and by state mail or regular mail to all state agencies.

(8) Thirty days after notice of the revocation of approval of a voluntary payroll deduction is sent to all state agencies, central payroll must remove the payroll deduction from the central payroll system.

(9) The department of administration may establish and/or maintain a voluntary payroll deduction when less than 50 employees request the deduction, if allowing the deduction is in the best interest of the state.

(2) It is the objective of this policy to establish uniform practices and procedures for the administration of the veterans' public employment preference by all public employers covered by 39-29-101 et seq., MCA.

(3) It is not the intention of this policy to dictate selection procedures to be used but rather to explain how the preference should be applied.

(1) "Armed forces" means, as provided in 39-29-101, MCA, "the

(a) United States army, navy, air force, marine corps, and coast guard;

(b) merchant marine for service recognized by the United States department of defense as active military service for the purpose of laws administered by the department of veterans affairs; and

(c) Montana army and air national guard."

(2) (a) "Initial hiring" means, as provided in 39-30-103, MCA, "a personnel action for which applications are solicited from outside the ranks of the current employees of:

(i) a department, as defined in 2-15-102, MCA, for a position within the executive branch;

(ii) a legislative agency for a position within the legislative branch;

(iii) a judicial agency, such as the office of supreme court administrator, office of supreme court clerk, state law library, or similar office in a state district court for a position within the judicial branch;

(iv) a city or town for a municipal position, including a city or municipal court position; and

(v) a county for a county position, including a justice's court position."

(b) A personnel action limited to current employees of a specific public entity identified in 39-30-103, MCA, current employees in a reduction-in-force pool who have been identified in 39-30-103, MCA, or current participants in a federally authorized employment program is not an initial hiring.

(3) "Military duty" means, as provided in 39-29-101, MCA, "duty with military pay and allowances in the armed forces."

(4) "Minimum qualifications" means the basic competencies (knowledge, skills, and behaviors) needed to adequately perform the duties of the position from the first day of employment. The applicant must possess the education and experience that leads to the required competencies.

(5) "Non-numerical scoring" means assessing the applicant's degree of success or failure on a selection device or combination of devices without employing a numerical score, for example, a plus (+) for superior, a check ( ü ) for satisfactory and a minus (-) for unsatisfactory.

(6) "Position" means, as provided in 39-29-101, MCA, "a position occupied by a permanent, temporary, or seasonal employee as defined in 2-18-101, MCA, for the state or a similar permanent, temporary, or seasonal employee with a public employer other than the state.  The term does not include:

(a) a state or local elected office;

(b) appointment by an elected official to a body such as a board, commission, committee, or council;

(c) appointment by an elected official to a public office if the appointment is provided for by law;

(d) a department head appointment by the governor or an executive department head appointment by a mayor, city manager, county commissioner, other chief administrative or executive officer of a local government; or

(e) engagement as an independent contractor or employment as an independent contractor."

(7) "Public employer" means, as provided in 39-29-101, MCA:

(a) "a department, office, board, bureau, commission, agency, or other instrumentality of the executive, legislative, or judicial branches of the government of this state;

(b) a unit of the Montana university system;

(c) a school district or community college; and

(d) a county, city, or town."

(8) "Reduction-in-work force" (RIF) means, "a management action taken for non-disciplinary reasons in which an employee is laid off from employment.  The RIF may take place for reasons including, but not limited to: elimination of programs; reduction in FTEs; lack of work; lack of funds; expiration of grants; reorganization of a state agency; or privatization of a service normally or traditionally provided by an employee of a department."

(9) "Scored procedure" means, as provided in 39-29-101, MCA, "a written test, structured oral interview, performance test, or other selection procedure or a combination of these procedures that results in a numerical score to which percentage points may be added."

(10) "Substantially equal qualifications" means, as provided in 39-30-103, MCA, "the qualifications of two or more persons among whom the public employer cannot make a reasonable determination that the qualifications held by one person are significantly better suited for the position than the qualifications held by the other persons."

(11) "Under honorable conditions" means, as provided in 39-29-101, MCA:

(a) "a discharge or separation from military duty characterized by the armed forces as under honorable conditions.

(i) The term includes honorable discharges and general discharges.

(ii) The term does not include dishonorable discharges or other administrative discharges characterized as other than honorable."

(a) be, as provided in 39-29-102, MCA, a "United States citizen"; and

(b) meet "the minimum qualifications required for the position.  If no applicant meets the minimum qualifications and the public employer fills a training position, veterans' preference must be applied."

(2) As provided in 39-29-101, MCA, a veteran must be a person who:

(a) "was separated under honorable conditions from active federal military duty in the armed forces after having served more than 180 consecutive days, other than for training; or

(b) as a member of a reserve component under an order of active federal duty pursuant to 10 U.S.C. 12301(a) , (d) , or (g) , 10 U.S.C. 12302, or 10 U.S.C. 12304, served on active duty during a period of war or in a campaign or expedition for which a campaign badge is authorized and was discharged or released from duty under honorable conditions; or

(c) is or has been a member of the Montana army or air national guard and who has satisfactorily completed a minimum of six years service in the armed forces, the last three years of which have been served in the Montana army or air national guard."

(3) A disabled veteran must have, as provided in 39-29-101, MCA:

(a) been "separated under honorable conditions from military duty in the armed forces; and

(b) established the present existence of a service-connected disability or [be] receiving compensation, disability retirement benefits or pension because of a law administered by the department of veterans affairs or a military department; or

(c) received a purple heart medal."

(4) An eligible relative must be, as provided in 39-29-101, MCA:

(a) the unremarried surviving spouse of a veteran or disabled veteran; or

(b) the spouse of a disabled veteran who is unable to qualify for appointment to a position due to the disability and who is incapable of using the employment preference because the disability prevents the veteran from working; or

(c) the mother of a veteran who died under honorable conditions while serving in the armed forces or the mother of a service-connected permanently and totally disabled veteran if:

(i) the mother's spouse is totally and permanently disabled; or

(ii) the mother is the unremarried widow of the veteran's father.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

(a) 5 percentage points if the applicant is a veteran," as defined in 39-29-101, MCA; and

(b) "10 percentage points if the applicant is a disabled veteran or an eligible relative," as defined in 39-29-101, MCA.

(2) As provided in 39-29-102, MCA, "a disabled veteran who receives 10 percentage points under [ 39-29-102, MCA], may not receive an additional 5 percentage points under [ 39-29-102, MCA]."

(3) As provided in 39-29-102, MCA, "Whenever a public employer uses a selection procedure other than a scored procedure, the public employer shall give preference to a disabled veteran, eligible relative, or veteran, in that order, over any nonpreferred applicant holding substantially equal qualifications as defined in 39-30-103, MCA."  Substantially equal qualifications does not mean a situation in which two or more applicants are exactly equally qualified.  It means a range in which two applicants must be considered to be substantially equal in view of the qualifications set for the job.  Qualifications shall include job-related competencies (knowledge, skills, and behaviors) .

(4) A current employee of an agency who meets eligibility requirements may claim and receive veterans' employment preference when an applicant for an initial hiring as defined in ARM 2.21.3603.

(5) An agency may use a combination of numerically scored procedures and non-numerically scored procedures to make a hiring decision.

(6) When individual scored procedures are used, percentage points must be added to each scored procedure if the individual score is used to advance or eliminate applicants.  When scored selection procedures are used in combination to reach a total score, percentage points must be added to the total score.  An applicant must meet the minimum qualifications of the position to be eligible for preference.

(7) An applicant has 90 calendar days from receipt of notice of a hiring decision to file a petition in district court.  To comply with this policy, the public employer shall retain a record of the hiring decision for at least 90 calendar days after the notice of the hiring decision and records may be kept longer at the agency's discretion. Other federal and state laws and regulations may require the retention of selection records for longer time periods.  Depending on the selection procedures used, the record may include, but is not limited to the following:

(a) a copy of the vacancy announcement or external recruitment announcement;

(b) a record of the selection procedure used to screen job applicants;

(c) a record of written and oral evaluations of applicants;

(d) a copy of applications that were considered for the specific vacancy; and

(e) a record of the notice of the hiring decision, the written request for an employer's explanation of the hiring decision by an applicant, and the employer's written explanation.

(2) As provided in 39-29-103, MCA, "a job applicant who believes that the applicant is eligible to receive a preference shall claim the preference in writing before the time for filing applications for the position involved has passed."   A public employer may provide a standard form for claiming employment preference.   Failure to complete such a form does not negate an applicant's claim for preference, as long as a reasonable and timely claim is made. As provided in 39-29-103, MCA, "Failure to make a timely preference claim for a position is a complete defense to an action instituted by an applicant under 39-29-104, MCA, with regard to that position."

(3) At the place where applications are received, the hiring authority or other agency receiving applications shall inform applicants of requirements for documentation of eligibility for preference which the applicant may be required to provide to the hiring authority.

(4) The person claiming eligibility for veterans' employment preference is responsible for providing all information necessary to document the claim.

(5) The hiring authority must obtain documentation of eligibility for employment preference from an applicant who claims preference and who is selected for the vacancy and may require documentation from others claiming employment preference.

(6) The hiring authority shall determine when in the selection process submission of documentation of eligibility for the preference shall be provided by the applicant.   This may be at the time an offer of employment is made or at an earlier time specified by the hiring authority.

(7) When appropriate, documentation will include the following or a substitute acceptable to the hiring authority:

(a) from a veteran, disabled veteran, or eligible relative:

(i) a document issued by the department of defense or equivalent certification from the U.S. department of veterans affairs listing military status, and discharge type, commonly form DD-214 or military discharge papers; or

(ii) a document issued by the office of the adjutant general of the Montana national guard which certifies the veteran is or has been a member of the Montana army or air national guard and has satisfactorily completed a minimum of six years service in the armed forces, the last three years of which have been served in the Montana army or air national guard;

(b) from a disabled veteran, a document from the U.S. department of veterans affairs certifying that the applicant has a service-connected disability or a document from the department of defense or the department of veterans affairs indicating the person has received the purple heart medal;

(c) from the unremarried surviving spouse of a deceased veteran, as veteran is defined in 39-29-101, MCA, the documentation required in this rule and a copy of the death certificate or from the unremarried surviving spouse of a deceased disabled veteran, as disabled veteran is defined in 39-29-101, MCA, the documentation required in this rule and a copy of the death certificate;

(d) from the eligible spouse of a disabled veteran, a document from the U.S. department of veterans affairs certifying the veteran is disabled, is unable to use the preference because of the disability, and is married to the disabled veteran in accordance with Montana law.  When the department of veterans affairs does not certify that the disabled veteran is unable to use the preference because of the disability, the hiring authority shall obtain a signed statement from the disabled veteran that the veteran is incapable of using the employment preference because the veteran is unable to qualify for appointment to a position because of the disability and the disability prevents the veteran from working;

(e) from an eligible mother of a deceased veteran or disabled veteran, a document from the U.S. department of veterans affairs certifying that the veteran, as provided in 39-29-101, MCA, "died under honorable conditions while serving in the armed forces" or a document certifying, as required in 39-29-101, MCA, that the veteran has a service-connected permanent and total disability.  The veteran's mother must also certify in writing that the mother's spouse is permanently and totally disabled or that the mother is the unremarried widow of the veteran's father;

(f) a signed statement by the applicant attesting to U.S. citizenship. If the hiring authority has reason to question the validity of the statement, further documentation may be required. For U.S. citizenship, such evidence may include, but is not limited to, a birth certificate, voter registration card, U.S. passport or naturalization papers.

(8) All documentation submitted to a public employer, or to an entity designated to receive applications for a public employer, in support of the claim of preference shall be considered confidential.

(9) A public employer may release general information relating to a successful applicant's eligibility for preference upon request.

(10) Applicants shall be notified that intentional misrepresentation of the claim for preference is cause for immediate discharge.

(a) that the appropriate percentage points were added if numerically scored procedures were used;

(b) that the preference was given to an applicant with substantially equal qualifications who claimed veterans' preference if non-numerical scored procedures were used; and

(c) the agency made a reasonable hiring decision, in accordance with 39-29-104 , MCA.

(2) Written notice must be given to each applicant claiming preference who is actually considered by the public employer as an applicant for a specific vacancy.

(3) As provided in 39-29-103 , MCA, "If an applicant for a position makes a timely written preference claim, the public employer shall give written notice of its hiring decision to the applicant claiming preference."

(4) Public employers who maintain active application files or conduct continuous recruitment must give written notice to each person claiming preference and whose application is active in accordance with the employer's selection procedures and who is actually considered for a specific vacancy. Notice must be given at the time a vacancy is filled or by the end of each month in which a vacancy is filled.

(5) The public employer must maintain a record of which applicants were notified and the date the notification was sent for at least 90 calendar days after notification of the hiring decision.

(1) As provided in 39-29-104, MCA, "An applicant who believes that the applicant is entitled to, but has not been given the preference provided in 39-29-102, MCA, may, within 30 days of receipt of the notice of the hiring decision provided for in 39-29-103, MCA, submit to the public employer a written request for an explanation of the public employer's hiring decision."

(2) The written request for an explanation shall contain, but is not limited to, such information as is necessary to determine:

(a) the applicant's name and address;

(b) the applicant is requesting an explanation from the hiring authority regarding the hiring decision; and

(c) the position for which the person applied.

(3) As provided in 39-9-104, MCA, "Within 15 days of receipt of the request, the public employer shall give the applicant a written explanation."   The written explanation shall contain specific, job-related reasons why the person claiming preference was not hired.   The explanation should be dated and identify the specific vacancy in question.   The employer should safeguard the confidentiality of information considered in accordance with state and federal law and as provided in ARM 2.21.3616.

(4) All days are calendar days.

(1) As provided in 39-29-104, MCA, "The applicant may, within 90 days after receipt of notice of the hiring decision, file a petition in the district court in the county in which the application was received by the public employer.   The petition must state facts that on their face entitle the applicant to a preference."

(2) External enforcement of the veterans' employment preference in district court is provided for in 39-29-104, MCA.

(3) All days are calendar days.

(a) has similar job duties and qualifications;

(b) has not been rated unacceptable under a performance appraisal system; and

(c) has the same or greater length of service.  Length of service means continuous employment by an individual public employer as defined in 39-29-101, MCA.

(2) As provided in 39-29-111, MCA, "a disabled veteran with a service-connected disability of 30% or more" shall be retained over other veterans, disabled veterans and eligible relatives.

(3) It will be the responsibility of the employee to claim preference in retention.  An employee who claims preference in retention as a veteran, a disabled veteran, a 30% disabled veteran or an eligible relative shall document eligibility in the same manner required in ARM 2.21.3616 for the claim of preference for initial hiring.

(4) As provided in 39-29-111, MCA, "The preference in retention...does not apply to a position covered by a collective bargaining agreement."

(2) Montana state government is committed to:

(a) attracting and retaining a highly qualified workforce based on competencies and job-related qualifications;

(b) providing applicants with a reasonable opportunity to learn about, and apply and be considered for positions when external recruitment is conducted; and

(c) using a competitive recruitment process to select individuals for permanent status employment.

(3) This policy covers all agencies in Montana's executive branch except the Montana University System, the Montana State Fund, elected officials, personal appointed staff of elected officials, and any other position specifically excluded under 2-18-103 and 2-18-104, MCA.

(2) Montana state government is committed to:

(a) attracting and retaining a highly qualified workforce based on competencies and job-related qualifications;

(b) providing applicants with a reasonable opportunity to learn about, and apply and be considered for positions when external recruitment is conducted; and

(c) using a competitive recruitment process to select individuals for permanent status employment.

(3) This policy covers all agencies in Montana's executive branch except the Montana University System, the Montana State Fund, elected officials, personal appointed staff of elected officials, and any other position specifically excluded under 2-18-103 and 2-18-104, MCA.

For purposes of this subchapter, the following definitions apply:

(1) "Applicant" means an individual who has followed the agency's standard procedures for submitting the required application materials such as, for example, a resume, cover letter, application form, or other documentation.

(2) "Competencies" means a set of measurable and observable knowledge, skills, abilities, and behaviors that contribute to success in a job.

(3) "External recruitment" means the open, competitive solicitation of applications from any interested persons which includes the general public and current state employees.

(4) "Internal recruitment" means the open, competitive solicitation of applications that, at the agency's discretion, is limited to:

(a) current employees of the agency, the division, or other appropriate internal unit; or

(b) employees laid off from the agency or participating in the job registry.

(5) "Job analysis" means the process of gathering, analyzing, creating, and documenting information about a position to identify the essential duties, functions, roles, and competencies required to perform the work.

(6) "Job-related" means criteria shown by a job analysis to be directly related to specific duties or to a necessary job qualification or competency.

(7) "Qualifications" means the minimum requirements needed to perform the job on the first day of employment, including the education, experience, and competencies associated with successful job performance.

(8) "Vacancy announcement" means a recruitment posting, including the job duties, qualifications, and application instructions. Vacancy announcements are also called job listings and requisitions.

This rule has been repealed.

This rule has been transferred.

(1) Agency managers shall use a competitive process when recruiting internally to fill permanent positions. 

(2) Agency managers are encouraged, but are not required to consider applicants included in the job registry in an internal recruitment process. Reinstated employees are not required to participate in a competitive process to be rehired as provided in the Implementing a Reduction in Force Policy (https://montana.policytech.com/docview/?docid=328&public=true&fileonly=true).

(3) Agency managers may:

(a) limit the internal competitive recruitment process to current employees of the agency, division, other appropriate internal unit, or laid-off employees participating in the job registry as provided in the Implementing a Reduction in Force Policy; or

(b) recruit internally to the agency, division, or other appropriate internal unit and to the job registry simultaneously unless this practice conflicts with agency policy or the provisions of a collective bargaining agreement.

(4) Agency managers may consider temporary employees hired through a competitive process in an internal recruitment; however, student interns, short-term workers, and temporary employees who were not hired through a competitive process are not eligible to participate in an internal recruitment.

(5) Agency managers may reassign current employees to temporary assignments not to exceed a period of two years without using a competitive recruitment. Agency managers shall use a competitive process when filling the position on a permanent basis.

(6) Agency managers shall post internal vacancy announcements according to agency standard procedures.

(1) Agency managers shall use an external competitive recruitment process unless the agency: 

(a) fills a position through internal recruitment, as provided in ARM 2.21.3707, Internal Recruitment;

(b) fills a position with a participant in on-the-job training, work experience, or other programs such as those conducted under the federal Workforce Investment Act. Examples include:

(i) dislocated worker programs;

(ii) adult and youth programs;

(iii) welfare-to-work programs;

(iv) Native American programs;

(v) veterans' employment and disabled veterans outreach programs;

(vi) programs authorized under Title I, parts A and B of the federal Rehabilitation Act; and

(vii) school-to-work programs;

(c) recalls a seasonal employee, as defined in 2-18-101, MCA, who was originally selected using a competitive recruitment process;

(d) selects a short-term worker or student intern as defined in 2-18-101, MCA; or

(e) fills a position with a retiree consistent with ARM 2.21.3710, Limited Reemployment for Retirees.

(2) Agency managers shall post a vacancy announcement for all positions open to external recruitment on the State of Montana Careers web site for at least five working days. The State Human Resources Division, Department of Administration, maintains the State of Montana Careers web site http://statecareers.mt.gov.

(3) If an agency manager decides to conduct an external recruitment for a temporary employee, as defined in 2-18-101, MCA, the vacancy announcement must be posted on the Careers web site.

(4) Agency managers may do, but are not limited to, the following:

(a) distribute vacancy announcements to appropriate recruitment sources in an effort to achieve a diverse workforce;

(b) limit external recruitment advertising to a geographic area. However, all properly completed applications received by the closing date must be considered, regardless of whether the applicant resides within that geographic area; and

(c) seek applicants for vacant positions using an applicant search service.

This rule has been repealed.

(a) the retiree possesses the requisite skills and qualifications to perform the duties and responsibilities of the position;

(b) the agency determines that reemployment is in the agency’s best interests; and

(c) the reemployment does not exceed 12 months.

(2) Agency managers shall document the reasons for reemployment and why it was in the agency's best interests. The documents must be kept in employee's permanent personnel file.

(3) The hour and wage limitations set forth for retirees in 19-3-1106 and 19-20-731, MCA, apply to retiree reemployment. Questions concerning hour and wage limitations should be directed to the Montana Public Employee Retirement Administration or Montana Teachers' Retirement System.

(1) Agencies shall verify that every male person hired on a full-time or part-time basis in permanent or temporary positions has registered in compliance with the federal Military Selective Service Act, except those excluded in (2) of this rule. If an individual has reached his 18th birthday and is under the age of 26, agencies shall require documentation showing he has registered with Selective Service or is exempt from registration. If an individual is age 26 or older and was required to register but has not done so, the individual shall prove to the agency job representative his failure to register was neither known nor willful.

(2) Agencies may exclude certain individuals from their verification procedures who:

(a) were born on or before December 31, 1959;

(b) have been continuously employed in state government without a five-day break in service before July 1, 2001;

(c) are transferring without a five-day break in service to another position in an agency or in state government;

(d) have already provided information confirming selective service status; or

(e) are hired as independent contractors or as employees of temporary service contractors.

(3) Agency managers may determine the types of documentation an individual shall provide showing compliance with the federal Military Selective Service Act. At a minimum, agencies shall require a written statement of selective service status.

(4) Agencies shall request the documentation described in this rule at the time an employment offer is made. Agencies may adopt reasonable timelines for individuals to provide the documentation. The Department of Administration, State Human Resources Division, has published the Military Selective Service Act Compliance fact sheet (http://hr.mt.gov/Portals/78/newdocs/factsheets/SelectiveServiceFactSheet.pdf) to assist agencies in complying with this rule and the Military Selective Service Act. The fact sheet provides examples of adequate documentation and information about who must register with the Selective Service. If an individual does not provide documentation as required, and the exceptions in the fact sheet do not apply, agencies shall:

(a) rescind an employment offer; or

(b) terminate the individual's employment.

(5) Agency managers shall file the Statement of Selective Service Status Form in the employee's permanent personnel file.

This rule has been transferred.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

(1) Individuals familiar with the position shall develop selection procedures before any review of applicant qualifications.

(2) Each selection procedure must be job-related and based on a current job analysis. Agency managers shall review the written job description to ensure it accurately describes the current job duties, competencies, education, and experience to perform the job.

(3) Selection procedures must include defined processes measuring the applicant's suitability for a particular position based on job requirements and ability to integrate successfully into the work unit and agency's culture.

(4) Agency managers may use any selection procedure or combination of procedures that best assess the applicant against the job qualifications. Agencies shall review and update their selection procedures as vacancies occur.

(1) During each step in the selection processes, agency managers shall apply consistent selection procedures regarding:

(a) content of the procedure applied;

(b) sequence of procedures;

(c) persons involved in administering the process; and

(d) the maximum time allotted wherever timed procedures are used.

(2) Consistent treatment does not mean identical treatment.

(1) Agency managers and individuals involved in the selection shall use job-related processes to evaluate the applicant's qualifications against the job requirements and ability to integrate successfully into the agency's culture.  

(2) Agency managers and individuals involved in the selection process shall recognize the unique backgrounds and experiences of each applicant. Selection procedures must be flexible enough to elicit information about the applicant's qualifications and potential contributions to the work unit. Agency managers shall compare applicants to the job qualifications and others in the applicant pool to select the best applicant for the job and work unit.

(3) Agency managers may select from any of the most qualified group of applicants. The public employment hiring preferences must be applied as provided in:

(a) the Veterans' Employment Preference Policy (ARM Title 2, chapter, 21, subchapter 36);

(b) the Persons with Disabilities Employment Preference Policy (ARM Title 2, chapter, 21, subchapter 14); and

(c) as provided in 2-18-111, MCA, Hiring preference for residents of Indian reservations for state jobs within reservation – rules.

(1) The employment process (online and traditional application) includes a notice that information applicants provide is subject to verification. Intentional misrepresentation of facts about an applicant’s qualifications, employment history, or other application information may:

(a) exclude an applicant from further consideration for a position; or

(b) result in discharge from employment.

(2) As provided in ARM 2.21.1428, Hiring Decision (Persons with Disabilities Employment Preference policy) and 2.21.3617, Hiring Decision (Veterans' Employment Preference policy), when an applicant claims an employment preference, agency managers shall:

(a) provide the applicant a written notice of the hiring decision; and

(b) maintain a record of the notification and date sent.

(1) Agency managers shall document the following in the recruitment and selection process:

(a) job information;

(b) screening information; and

(c) applicant information.

(2) For the purposes of this subchapter, "job information" includes but is not limited to:

(a) a description of the current duties of the job;

(b) a copy of the vacancy announcement;

(c) a copy of newspaper or journal advertising, if any;

(d) a list of all recruitment sources used; and

(e) a copy of Internet posting, if any.

(3) For the purposes of this subchapter, "screening information" includes but is not limited to:

(a) a copy of all selection procedures and any criteria used to evaluate qualifications;

(b) the names and titles of any persons who participated in the design or administration of the selection procedures; and

(c) a statement of why and how the hiring decision was made.

(4) For the purposes of this subchapter, "applicant information" includes, but is not limited to:

(a) all applications, supplemental question responses, evaluation notes, reference checks, and any other application materials received;

(b) applicants' demographic information from the applicant survey page; and

(c) correspondence with applicants.

(5) Agencies shall maintain items listed in this rule for a period of time consistent with the General Records Retention Schedule found at http://sos.mt.gov/records/state.

This rule has been repealed.

(1) Job information as described in ARM 2.21.3726(2) is public information.

(2) Screening information as described in ARM 2.21.3726(3) is public information; however, an agency may maintain the confidentiality of selection procedures and criteria if:

(a) the agency can establish a legitimate business need to reuse the procedures and criteria; or

(b) agency managers determine public disclosure of the information would jeopardize the agency's ability to select the best-qualified candidate for the position.

(3) Applicant information described in ARM 2.21.3726(4) is confidential pursuant to Montana's constitutional guarantee of privacy; however, an agency may release applicant information to third parties if the agency:

(a) receives a court order;

(b) receives a release from the applicant; or

(c) notifies applicants, as part of the application or selection process, that upon weighing the merits of public disclosure against an applicant's individual privacy interests, the agency has determined continued consideration for the position was contingent upon the applicant providing authorization for release of specified applicant information.

(4) Agency managers shall release applicant information under (3) consistent with the terms of the court order or release.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

(1) This subchapter may be cited as the Equal Employment Opportunity, Nondiscrimination, and Harassment Prevention Policy.

(a) federal laws and regulations prohibiting illegal discrimination including the Genetic Information Nondiscrimination Act of 2008 (GINA);

(b) the Montana Human Rights Act, Title 49, MCA;

(c) the Governmental Code of Fair Practices, Title 49, chapter 3, MCA; and

(d) the Governor's Executive Order No. 04-2016, Executive Order Prohibiting Discrimination in State Employment and Contracts.

(2) These rules establish complaint procedures to promote prompt and equitable resolution of discrimination complaints.

(3) These rules cover all agencies in Montana's executive branch except:

(a) the Montana University System;

(b) the Montana State Fund;

(c) elected officials:

(d) personal appointed staff of elected officials; and

(e) any other position specifically excluded under 2-18-103 and 2-18-104, MCA.

This rule has been repealed.

This rule has been repealed.

(1) The executive branch is committed to equal opportunity, nondiscrimination, and harassment prevention in all aspects of employment and in programs, services, and activities offered to the public.

(2) Agency managers, as defined by the agency in policy or rule to promote consistency with internal policies and procedures, may not tolerate discrimination or harassment based on an individual's race, color, national origin, age, physical or mental disability, marital status, religion, creed, sex, pregnancy, childbirth, or a medical condition related to pregnancy or childbirth, sexual orientation, gender identity or expression, political beliefs, genetic information, military service or veteran's status, culture, social origin or condition, or ancestry. Likewise, agency management may not tolerate discrimination or harassment because of a person's marriage to or association with individuals in one of the previously mentioned protected classes.

(3) Agency managers may use a bona fide occupational qualification (BFOQ) where the reasonable demands of a position require a distinction based on age, physical or mental disability, marital status, sex, religion, or national origin. A BFOQ is a legal exception to an otherwise discriminatory hiring practice. Exceptions are strictly construed, as provided in 49-2-303, MCA, and the burden rests with the agency to demonstrate the exemption should be granted. Federal and state laws prohibit BFOQs based on race or color.

(4) To promote a work and customer service environment free from discrimination, agency managers shall:

(a) base hiring decisions on individual competencies and qualifications;

(b) promote an inclusive work environment where individuals are afforded every opportunity to reach their fullest potential;

(c) recognize individual differences as a key element of organizational and team success;

(d) treat individuals with dignity and respect; and

(e) value the rights of all Montanans to benefit from equal access to employment and programs, services, and activities offered to the public.

(5) Agency managers who observe behaviors that may be viewed as discriminatory shall stop the behavior and notify their agency's EEO officer, Americans with Disabilities Act (ADA) coordinator, or human resources manager.

This rule has been repealed.

This rule has been repealed.

(1) The Department of Administration shall:

(a) periodically review and update equal opportunity (EO) standards, guidelines, and administrative processes and procedures;

(b) assist agencies in maintaining an effective EO program;

(c) provide annual utilization analysis reports to agencies;

(d) create and maintain an annual report summarizing state government's efforts toward achieving diversity and inclusion;

(e) provide EEO analyses, reports, and technical assistance to agencies;

(f) recommend strategies to promote diversity and overcome potential barriers to employment;

(g) design and develop diversity and inclusion and equal opportunity training that includes minimum standards for new employee orientation and refresher training; and

(h) submit the biennial State and Local Government EEO-4 Report to the Equal Employment Opportunity Commission by the reporting deadline on odd-numbered years.

(2) Executive branch department heads shall:

(a) appoint an EO officer responsible for:

(i) managing the agency's EO program;

(ii) training employees on EO;

(iii) assisting employees and managers with resolving EO issues;

(iv) conducting internal investigations;

(v) updating the department's annual EEO action plan, unless the department has a federal requirement to develop an affirmative action plan that extends to the entire department;

(vi) developing strategies, goals, and objectives for evaluating the effectiveness of the agency's EEO action plan or affirmative action plan;

(vii) reporting the agency's progress toward minimizing underutilization of women and minorities to the department by March 31 of each year;

(viii) developing internal procedures for providing meaningful access (interpreters, translators, etc.) to programs, services, and activities for customers with limited English proficiency by March 31, 2017;

(ix) reporting to the department each year:

(A) the number of diversity and inclusion and EO and harassment prevention trainings provided; and

(B) the number of employees trained, by new employee and refresher training; and

(b) appoint an ADA coordinator responsible for:

(i) training employees on the ADA, disability awareness, and reasonable accommodations;

(ii) conducting self-evaluations to assess accessibility of programs, services, and activities; and

(iii) assisting with reasonable accommodation requests.

(3) Agency managers shall:

(a) retain electronic records for all jobs recording the sex, race, and ethnic group of employees and applicants as provided in 49-2-102, MCA, and the Uniform Guidelines on Employee Selection Procedures (1978); 43 FR 38295 (August 25, 1978);

(b) provide reasonable accommodations, upon request, for qualified individuals with disabilities and for applicants and employees based on their religious practices, unless doing so would create an undue hardship;

(c) provide reasonable accommodations, upon request, for limitations resulting from pregnancy-related disabilities and the interaction of pregnancy with an underlying impairment, unless doing so would create an undue hardship for the agency;

(d) ensure employees provide meaningful access to programs, services, and activities for customers with limited English proficiency;

(e) include provisions in all contracts and subcontracts for construction of public buildings, other public works, and goods and services, that prohibit discrimination or harassment based on race, color, national origin, age, physical or mental disability, marital status, religion, creed, sex, pregnancy, childbirth, or a medical condition related to pregnancy or childbirth, sexual orientation, gender identity or expression, political beliefs, genetic information, military service or veteran's status, culture, social origin or condition, or ancestry in hiring and accessing programs, services, and activities performed on the state's behalf;

(f) post the state's EO policy poster and complaint-resolution procedures, including contact information for the agency EO officer and ADA coordinator, in areas frequented by employees and the public;

(g) provide a copy of these rules to all employees;

(h) have employees sign a statement acknowledging their understanding and acceptance of the standards set forth in these rules and file a copy in their personnel file;

(i) ensure all new employees receive diversity and inclusion and EO and harassment prevention training within 90 days of hire, beginning April 15, 2017, according to guidelines established by the department;

(j) ensure all employees receive diversity and inclusion and EO and harassment prevention refresher training every three years or more frequently as needed, beginning April 15, 2017, according to guidelines established by the department; and

(k) document all training in the employee's personnel file.

(1) To comply with GINA, which prohibits discrimination based on genetic information with respect to employment or state-sponsored group health plans, agency managers may not:

(a) request, require, or purchase genetic information about employees or their family members; or

(b) use genetic information to:

(i) discriminate against an individual in hiring, discharge, compensation, terms, conditions, or privileges of employment;

(ii) make decisions about admission to apprenticeship and training programs, including on-the-job training;

(iii) limit, segregate, or classify an individual;

(iv) fail or refuse to refer an individual for employment;

(v) deprive an individual of employment opportunities; or

(vi) acquire health insurance or set premiums under the group health plan.

(2) Requests for genetic information include, but are not limited to:

(a) conducting Internet searches on individuals in a way that is likely to result in obtaining genetic information;

(b) knowingly or purposefully listening to third-party conversations or searching an individual's personal effects for the purpose of obtaining genetic information; and

(c) requesting information about an individual's current health status in a way that is likely to result in obtaining genetic information.

(3) To avoid inadvertently receiving genetic information, agency representatives who request medical information as part of an employment-related medical exam or a medical certification in response to a request for sick leave, leave qualifying under the Family Medical Leave Act, or a reasonable accommodation request under the Americans with Disabilities Act, shall include the following statements verbatim in their written request for medical information:

(a) ''The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers and other entities covered by GINA Title II from requesting or requiring genetic information of employees or their family members. To comply with this law, we ask you not to provide any genetic information when responding to this request for medical information."

(b) "Genetic information, as defined by GINA, includes an individual's family medical history, the results of an individual's or family member's genetic tests, the fact that an individual or an individual's family member sought or received genetic services, and genetic information of a fetus carried by an individual or an individual's family member or an embryo lawfully held by an individual or family member receiving assistive reproductive services."

(c) ''Genetic test means an analysis of human DNA, RNA, chromosomes, proteins, or metabolites that detects genotypes, mutations, or chromosomal changes."

(4) Agency managers may not ask probing questions of an individual if they inadvertently learn of a health condition of an applicant, employee, or the health condition of a family member.

(a) Probing questions include, but are not limited to, asking the individual whether other family members have the condition or whether the individual has been tested for the condition. These questions are likely to result in the acquisition of genetic information.

(5) Agency representatives possessing genetic information about an employee shall maintain the information as confidential in compliance with ARM Title 2, chapter 21, subchapter 66, Employee Records Management Policy.

This rule has been repealed.

(1) Harassment, including sexual harassment, consists of, but is not limited to, oral, written, or electronic communications (for example, voice mails, e-mails, text messages, or other social networking tools) in the form of repeated and unwelcomed jokes, slurs, comments, visual images, or innuendos based on a protected class. Even mutually agreeable behavior, or behavior accepted between two or more people, can be offensive to others; for this reason it is prohibited in the workplace.

(2) Sexual harassment is a form of discrimination that includes unwelcome verbal or physical conduct of a sexual nature when:

(a) submission to the conduct is implicitly or explicitly made a term or condition of employment;

(b) submission to or rejection of the conduct is used as the basis for an employment decision affecting the individual; or

(c) the conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment.

(3) Agency managers may not tolerate any behavior that negatively focuses on a protected class. Although a behavior or pattern of behavior might not constitute illegal discrimination, it might still violate this rule.

(4) Agency managers who observe behaviors that could be viewed as discrimination or harassment shall stop the behavior and notify their agency's EEO officer, ADA coordinator, or human resources manager.

(1) Agency managers may not retaliate or allow, condone, or encourage others to retaliate against any customer, applicant, or current or former employee for opposing unlawful discriminatory practices, filing a discrimination complaint or participating in a discrimination proceeding, including testifying in court.

(2) Agency managers who become aware of retaliation shall inform the agency's human resource manager, human resource staff, EEO officer, or ADA coordinator. The human resource manager, human resource staff, EEO officer, or ADA coordinator shall advise management on the appropriate course of action.

(1) Agency managers shall encourage employees, applicants, clients, and customers who believe they have been discriminated against or harassed to contact their supervisor, another manager, or the agency's EEO officer, ADA coordinator, or human resources staff.

(2) Complaints may be oral or in writing; however, complainants are encouraged to use the Department of Administration's complaint form found at http://hr.mt.gov/hrpp/policies.mcpx.

(3) For complaints not submitted on a complaint form, the agency representative receiving the complaint shall obtain and document the following information:

(a) name, address, and phone number(s) of the complainant(s);

(b) date(s), time(s), and location(s) of the alleged discriminatory behavior or conduct;

(c) name(s), if known, of the accused(s);

(d) description of the behavior or conduct that resulted in an alleged violation;

(e) whether the alleged discrimination was based on a protected class; and

(f) names of potential witnesses who may have heard or observed the alleged discriminatory conduct or behavior.

(4) Agency representatives who receive a complaint or become aware of allegations of discrimination or harassment shall promptly notify the human resource manager, EEO officer, or ADA coordinator, regardless of their perception of the validity of the complaint.

(5) The human resource manager, EEO officer or ADA coordinator, legal counsel, and appropriate manager shall meet to discuss the appropriate course of action. If the complaint is against any of these individuals, that individual is excluded from the meeting. The discussion must focus on measures to stop the alleged behavior, a review of the investigative process, and management's role in the process.

(6) If management determines an internal investigation would not be appropriate because of a potential conflict, they may request assistance from the State Human Resources Division or other outside source.

(7) The human resource manager or human resource staff, as appropriate, shall coordinate with the investigator and advise management throughout the course of the investigation.

(1) The EEO officer, ADA coordinator, or another representative chosen by management shall begin an investigation upon receiving a complaint.

(2) Before the investigation begins, the appropriate manager shall separately explain the following to the complainant and accused:

(a) the investigation process and anticipated timelines; and

(b) what retaliation is and that it is illegal.

(3) Agency managers shall provide:

(a) periodic updates to the complainant and the accused; and

(b) documentation of their initial meeting and all subsequent follow-up action to the investigator.

(4) The investigator shall:

(a) gather evidence to determine a "cause" or "no-cause" finding;

(b) coordinate with the agency's legal counsel before conducting interviews and throughout the investigation; and

(c) provide periodic updates to the agency's human resource manager.

(1) After receiving the final report, the appropriate manager shall promptly inform the complainant and accused of the outcome of the investigation in writing.

(2) In the case of a cause finding, the appropriate agency manager shall:

(a) take appropriate disciplinary action, if necessary, according to the ARM Title 2, chapter 21, subchapter 65, Discipline Policy;

(b) advise the complainant corrective action to stop the behavior has been taken, but not disclose the details or nature of disciplinary action;

(c) reemphasize that retaliation is unacceptable behavior; and

(d) contact the complainant within 30 days to ensure the behavior has stopped and no retaliation has occurred.

(3) In the case of a no-cause finding, the appropriate agency manager shall contact the complainant within 30 days to ensure the complainant has not experienced retaliation.

(1) Agency managers shall make every attempt to protect the privacy of individuals involved in the complaint process; however, individual privacy cannot be guaranteed.

(2) Agency managers may not prohibit employees from discussing a complaint or ongoing investigation with coworkers unless management conducts an individualized assessment and demonstrates that one of the following factors exists:

(a) there are witnesses in need of protection;

(b) evidence is in danger of being destroyed;

(c) testimony is in danger of being fabricated; or

(d) there is a need to prevent a cover-up.

(3) Agency managers shall document their rationale for requiring that employees refrain from discussing a complaint or ongoing investigation.

(4) The human resource staff shall maintain the investigative report and supporting documents in a secure, confidential case file separate from the regular employee file.

(1) Agency EEO officers shall track internal complaints using the Complaint Tracking Sheet located on the State Human Resources Division web site: http://hr.mt.gov/hrpp/policies.mcpx. EEO officers shall provide quarterly summaries of internal complaints to the State Human Resources Division no later than the fifteenth day of each quarter.

(2) The report must include:

(a) the total number of complaints;

(b) whether the complainant and accused was an employee, customer, or client;

(c) the protected class or basis of the complaint;

(d) the reason for complaint (for example, employment-related, denied access to a program or service, or inappropriate comment); and

(e) the outcome of the complaint.

(3) The report is for tracking purposes only and may not include confidential information such as names of individuals involved.

(4) The State Human Resources Division shall collect and analyze the data to:

(a) assess program effectiveness;

(b) develop or modify existing policies, procedures, and guides; and

(c) promote compliance with applicable laws, regulations, and policies.

(a) Montana Human Rights Bureau, 33 S. Last Chance Gulch, Suite 2, P.O. Box 1728, Helena, MT 59624-1728, (406) 444-4356, (800) 542-0807, Montana Relay Service 711; or

(b) United States Equal Employment Opportunity Commission (EEOC) Seattle Field Office, 909 First Avenue, Suite 400, Seattle, WA 98104-1061, (800) 669-4000, TTY (800) 669-6820, ASL Video (844) 234-5122.

(2) Jurisdiction may vary based on the nature of the complaint. For example, neither the Human Rights Bureau nor the EEOC considers complaints based on culture, social origin or condition, ancestry, or military or veteran status.

(3) The Human Rights Bureau must receive the complaint within 180 days of when the alleged discriminatory practice occurred or was discovered unless the person has filed an internal complaint. A person who files an internal complaint under these rules has 180 days from the conclusion of the internal investigation to file a complaint with the Human Rights Bureau if management completes the investigation within 120 days of when the alleged discriminatory practice occurred or was discovered. If management does not complete the investigation within 120 days, the person must file a complaint with the Human Rights Bureau within 300 days of when the alleged discriminatory practice occurred or was discovered.

(4) The EEOC must receive the complaint within 300 calendar days from the date the discrimination took place if the Human Rights Bureau enforces a law prohibiting employment discrimination against the same protected class. Otherwise, the complaint must be filed with the EEOC in 180 days.

(5) Service members and veterans who believe they have been discriminated against in employment based on military service or veteran status may contact:

(a) the Employer Support of the Guard and Reserve at (800) 336-4590; or

(b) the Veterans' Employment and Training Service (VETS) at (866)-487-2365. Service members and veterans may submit a formal, online complaint with VETS at http://webapps.dol.gov/elaws/vets/userra/1010.asp. (History: 2-18-102, MCA; IMP, 2-18-102, MCA; NEW, 2011 MAR p. 1672, Eff. 8/26/11; AMD, 2013 MAR p. 110, Eff. 2/1/13; AMD, 2016 MAR p. 1838, Eff. 10/15/16.)

(1) Employees who violate these rules are subject to discipline, up to and including discharge under ARM Title 2, chapter 21, subchapter 65, Discipline Policy. A rule violation includes managers who allow discrimination to occur or fail to take appropriate action to correct inappropriate behavior, including discrimination or harassment.

(2) Failure to conduct an investigation in a proper and timely manner, interference with an investigation, failure to cooperate with an investigator, or making a false statement to an investigator may result in disciplinary action, up to and including discharge.

(1) This subchapter may be cited as Reasonable Accommodations and Equal Access Policy.

(1) The rules in this subchapter establish the minimum requirements for providing reasonable accommodations, reasonable modifications, and equally effective communication for persons with disabilities as for persons without disabilities consistent with:

(a) the Americans with Disabilities Act of 1990 (ADA);

(b) ADA Amendments Act of 2008;

(c) Genetic Information Nondiscrimination Act of 2008 (GINA);

(d) Montana Human Rights Act, Title 49, MCA;

(e) Governmental Code of Fair Practices provided in Title 49, chapter 3, MCA; and

(f) Rights of Persons with Disabilities provided in Title 49, chapter 4, MCA.

(2) This subchapter covers all agencies in Montana's executive branch except:

(a) the Montana University System;

(b) the Montana State Fund;

(c) elected officials;

(d) personal staff of elected officials; and

(e) any other position specifically excluded under 2-18-103 and 2-18-104, MCA.

(1) The department adopts and incorporates the definitions in Title I and Title II of the ADA, as amended by the ADA Amendments Act of 2008 (P.L. 110-325), effective January 1, 2009, 42 USC 12102, 12103, 12111, and 12131, which set forth all definitions applicable to the law, except those defined under this rule. A copy of these definitions may be obtained by contacting the department at the address provided in ARM 2.21.4121 or at http://www.ada.gov/pubs/adastatute08.htm.

(2) The following definitions also apply to this subchapter:

(a) "Designated personnel" means agency representatives identified this subchapter as those responsible for processing reasonable accommodation requests including agency managers (as defined by the agency in policy or rule to promote consistency with internal policies and procedures), ADA coordinators, Equal Employment Opportunity (EEO) officers, human resource staff, and individuals involved in the hiring process.

(b) "Extenuating circumstances" means circumstances beyond management's control and may include time spent waiting for medical documentation, special equipment, modifications to a work area, or other factors.

(1) The Department of Administration shall:

(a) periodically review and update, as needed, reasonable accommodation and equal access rules, processes, and procedures; and

(b) design and develop training for employees that includes reasonable accommodations, reasonable modifications, and effective communication processes and procedures.

(2) Agency managers shall:

(a) provide reasonable accommodations to known physical or mental limitations of otherwise qualified employees or applicants with disabilities unless doing so would create an undue hardship;

(b) make reasonable modifications to policies, practices, or procedures unless doing so would create an undue financial or administrative burden or fundamentally alter the nature of a service, program, or activity;

(c) offer equally effective communications to people with disabilities and post public notice statements in areas frequented by employees and the public and on the agency's web site to increase awareness of individual rights and the state's responsibilities under the ADA;

(d) include a reasonable accommodation statement in all job listings; and

(e) provide a copy of these rules to all employees.

(1) Agency managers shall provide reasonable accommodations to qualified individuals with disabilities in all aspects of employment unless doing so would cause undue hardship.

(2) Agency managers shall encourage employees and applicants with disabilities to request reasonable accommodations at any time they identify a barrier to employment. A barrier may include a policy, procedure, or workplace arrangement preventing applicants from effectively competing for a position and employees from performing essential functions of their position or receiving benefits of employment.

(3) The obligation to provide reasonable accommodations applies to all aspects of employment. This responsibility is ongoing and a reasonable accommodation may become necessary any time a person's disability or job changes.

(1) Employees or applicants with a disability may request reasonable accommodations through any one of the designated personnel.

(2) Reasonable accommodation requests may be oral or in writing and do not have to include the words "reasonable accommodation" or "disability." Employees may simply indicate they are having difficulty performing their job or applying for a position because of a disability.

(3) Family members, friends, health care professionals, or other representatives may request reasonable accommodations on employees' or applicants' behalf.

(4) There are no time limits for requesting an accommodation; however, employees should not wait for an impairment to affect their job performance before requesting an accommodation. Employees are encouraged to communicate with agency management about performance issues as soon as they realize the need for an accommodation.

(1) Designated personnel who receive reasonable accommodation requests shall promptly notify their agency ADA coordinator of the request.

(2) If the request comes from someone other than an agency manager, the ADA coordinator shall inform the appropriate manager and provide assistance throughout the reasonable accommodation process. With assistance from the ADA coordinator, the agency manager shall:

(a) participate in an informal dialogue (known as the interactive process) with the employee or applicant;

(b) periodically follow up with the employee or applicant on all reasonable accommodation requests; and

(c) approve or deny the request within 30 working days following the initial request, unless extenuating circumstances exist.

(3) Designated personnel shall always consider an employee's or applicant's requested accommodation; however, they may elect another reasonable accommodation if it would effectively allow the employee to perform the essential functions of the job or allow an applicant to compete for a position.

(4) Employees may refuse the elected accommodation; however, if the employee cannot perform the essential functions of the job, with or without the accommodation, the refusal may limit the employee's qualifications for the position.

(1) Agency managers shall participate in the interactive process until they identify an effective accommodation or determine a reasonable accommodation is not possible. Failure to participate in the interactive process could result in a delay or failure to provide a reasonable accommodation.

(2) When an employee or applicant requests a reasonable accommodation, the dialogue between designated personnel and the employee may include the following:

(a) a discussion of the employee's specific limitations;

(b) how the limitation affects the employee's performance;

(c) specific job tasks or selection procedures that are or may be problematic for the employee;

(d) possible accommodations; and

(e) if implemented, whether the accommodation was effective.

(3) The extent of the dialogue between designated personnel and the employee or applicant may vary because of the nature of an individual's disability or their specific request. If the disability and the need for an accommodation are obvious, the discussion may be brief. In some cases, the agency manager may need to ask questions about the nature of the individual's disability and the individual's functional limitations in an effort to identify an effective accommodation.

(4) Designated personnel shall limit discussion with applicants to the individual's specific request, their inability to participate in a particular selection process, and possible accommodations.

(5) Designated personnel may not ask probing questions likely to disclose genetic information in compliance with ARM Title 2, chapter 21, subchapter 40, Equal Employment Opportunity, Nondiscrimination, and Harassment Prevention Policy.

(1) Agency managers shall document all reasonable accommodation requests and their contact with designated personnel. Documentation must include the following:

(a) accommodation requested and discussed;

(b) impact of the impairment on the employee's ability to perform their job or an applicant's ability to participate in the selection process;

(c) follow-up discussions with employees, applicants, or their representative; and

(d) decisions made and actions taken.

(1) Medical examinations must be job-related and consistent with business necessity.

(2) Agency managers may request documentation from an appropriate health care professional when the need for a reasonable accommodation is not known or obvious. If an agency manager requests medical documentation, the manager:

(a) shall provide the request to the applicant or employee in writing;

(b) shall explain the need for documentation and limit the request to information about the individual's disability, functional limitations, and the need for a reasonable accommodation to perform the essential functions of the job;

(c) shall include a statement to the applicant, employee, or health care provider to not provide genetic information as specified under ARM Title 2, chapter 21, subchapter 40, Equal Employment Opportunity, Nondiscrimination, and Harassment Prevention Policy;

(d) may not request more information than required to support the need for a specific type of accommodation; and

(e) may not request documentation when the disability and the need for a reasonable accommodation are obvious or when the individual has already provided sufficient information to substantiate their need for a reasonable accommodation.

(3) If the individual does not provide the requested documentation, agency managers are not required to provide an accommodation. Agency managers may make exceptions if extenuating circumstances prevent the individual from providing the documentation.

(4) Agency managers shall document the time exhausted while waiting for documentation. This time does not count against the agency's 30-working-day timeline to process the request.

(5) If an individual provides insufficient documentation, the agency manager shall explain why the documentation was insufficient and allow additional time to provide sufficient documentation.

(6) Agency management may require an individual to go to a health care professional of the agency's choice when the individual fails to provide sufficient documentation. If management requires an individual to go to a health care provider, the agency shall pay costs associated with the visit.

(7) If an employee chooses not to see a health care professional of the agency's choice and fails to provide sufficient documentation, agency managers are not required to provide an accommodation.

(1) Agency managers shall serve as the approval authority for all reasonable accommodation requests.

(2) If agency managers determine the request is reasonable, they shall:

(a) grant the request and notify the employee or applicant in writing of their decision;

(b) implement the accommodation as soon as practical;

(c) follow up with the employee or applicant to ensure the accommodation is effective;

(d) continue the interactive process if the accommodation is not effective, the need for the accommodation has changed, or the job has changed; and

(e) continue the interactive process until they find an alternative or determine it is not possible to provide a reasonable accommodation.

(1) When an employee with a disability can no longer perform the essential functions of their position with or without a reasonable accommodation, the agency manager shall consider reassigning the employee to an equivalent vacant position unless doing so would create an undue hardship. The employee shall concur with the reassignment.

(2) When reassigning an employee to a vacant position as a reasonable accommodation, agency managers shall:

(a) do so without a competitive process;

(b) consider any implications under a seniority system of a collective bargaining agreement;

(c) attempt to reassign a qualified employee to a vacant position equivalent in pay, status, and other relevant factors (e.g., benefits, geographical location); and

(d) continue the interactive process after reassigning an employee to ensure the employee is able to perform the essential functions of the job, with or without a reasonable accommodation.

(3) If reassigning an employee would violate a seniority system or collective bargaining agreement, it is not reasonable to reassign an employee.

(4) If an equivalent vacant position is not available, management may reassign the employee to a lower-pay position, provided the employee is qualified and agrees to the transfer.

(5) "Vacant" means the position is available when the employee asks for an accommodation, or the employer knows a position is to become available within a reasonable amount of time. Agency managers shall determine a reasonable amount of time on a case-by-case basis.

(6) Agency managers are not required to create a new position as a reasonable accommodation.

(1) If agency managers determine they cannot reasonably accommodate a request or an accommodation would create an undue hardship, they shall forward the recommendation to their division administrator. If the division administrator is the manager receiving the request, the administrator shall make the recommendation to their supervisor.

(2) If the division administrator or higher-level manager concurs with the recommendation, the administrator or manager shall notify the employee or applicant in writing within 30 working days of the initial request.

(3) The written notification must include an explanation for the denial and the appeal process.

(1) Agency managers may discharge an employee with a disability when the employee is no longer able to perform the essential functions of their job with or without a reasonable accommodation, and managers have ruled out all possible options.

(2) If denial of a reasonable accommodation results in the discharge of an employee, the appeal process outlined in ARM Title 2, chapter 21, subchapter 65, Discipline Policy or applicable collective bargaining agreement supersedes the reasonable accommodation appeal process.

(1) The department head shall serve as the appeal authority for all denials.

(2) Employees and applicants wishing to appeal a denial shall submit a written request, along with supporting documents, to the department head within 15 working days from the time they receive the denial letter.

(3) The department head shall work with the appropriate agency manager, the ADA coordinator, and human resources manager to review pertinent information and the rationale for denial.

(4) Upon completion of the review, the department head shall:

(a) deny the request, approve the request, or refer it back to management for further action; or

(b) notify the employee or applicant of their decision in writing within 15 working days of receiving the appeal.

(5) If the department head denies the appeal, the written notification must include an explanation for the denial and information on the right to file a complaint with the Montana Human Rights Bureau, Department of Labor and Industry.

(6) Employees and applicants may contact the Montana Human Rights Bureau at (406) 444-2884 or (800) 542-0807 or the federal Equal Employment Opportunity Commission at (800) 669-4000 to file a complaint.

(1) Agency managers shall:

(a) treat all information related to an employee's or applicant's disability as confidential; and

(b) maintain disability-related information according to the requirements of ARM Title 2, chapter 21, subchapter 66, Employee Records Management Policy.

(1) Agency ADA coordinators shall track reasonable accommodation requests using the Reasonable Accommodation Tracking Sheet at the State Human Resources Division web site: http://hr.mt.gov/hrpp/policies.mcpx and also available from the State Human Resources Division, Department of Administration, Room 125 Mitchell Building, 125 Roberts Street, P.O. Box 200127, Helena, MT 59620-0127, or telephone (406) 444-3871.

(2) ADA coordinators shall provide a quarterly summary of all reasonable accommodation requests to the State Human Resources Division no later than the fifteenth day of each quarter.

(3) The report must include the following information:

(a) total number of requests;

(b) whether requests were by employees or applicants;

(c) types of accommodations requested and approved;

(d) cost of accommodations;

(e) effectiveness of the accommodations;

(f) number of days to process the requests (including extenuating circumstances); and

(g) if denied, the reason for denial and whether the employee or applicant appealed.

(4) Data are for tracking purposes only and must not include confidential information such as names or references to medical conditions or impairments.

(5) The State Human Resources Division shall collect and analyze data to:

(a) assess program effectiveness;

(b) develop or modify existing policies, procedures and guides; and

(c) promote compliance with applicable laws, regulations, and policies.

(1) Employees with disabilities may be eligible for disability retirement benefits under 19-3-1002, MCA. Employees may contact the Montana Public Employee Retirement System at (877) 275-7372 (toll free) or (406) 444-3154 for more information.

(1) Agency managers shall make reasonable modifications to policies, practices, and procedures that deny, or have the potential to deny, equal access to programs, services, or activities to individuals with disabilities, unless doing so would result in an undue burden or fundamentally alter a program, service, or activity.

(2) Anyone requesting to modify a policy, practice, or procedure may contact the office responsible for providing the program, service, or activity, including agency management, ADA coordinator, EEO officer, or human resources staff.

(1) Agency managers shall furnish auxiliary aids and services, upon request, to promote equally effective communication for people with disabilities, unless doing so would result in an undue burden or fundamentally alter the program, service, or activity.

(2) Anyone requiring auxiliary aids and services may contact the department directly responsible for providing the program, service, or activity, including agency management, ADA coordinator, EEO officer, or human resources staff.

(3) Agency managers may not charge individuals with disabilities to offset costs associated with providing required auxiliary aids and services.

(4) Agency managers are not required to provide personal use items such as wheelchairs, prescription eyeglasses, hearing aids, or personal services such as eating, toileting, or dressing.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.