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CC Resolution No. 9902RESOLUTION NO. 9902 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CUPERTINO AMENDING THE RULES ON CONDITIONS OF EMPLOYMENT WHEREAS, the Rules on Conditions of Employment need to be modified in order to cOnform with the Memoranda of Understanding between the City of Cupertino and the City Employees' Association and Operating Engineers Local No. 3; NOW, THEREFORE, BE IT RESOLVED that the Rules on Conditions of Employment be amended as shown in Attachment "A" which is incorporated in this resolution by reference. PASSED AND ADOPTED a regular meeting of the City Council of the City of Cupertino this 7th day of July, 1997 by the following, vote: MEMBERS OF THE CITY COUNCIL AYES: Burnett, Chang, Dean, Sorensen, Mayor Bautista NOES: None ABSENT: None ABSTAIN: None ATTEST: Ci~ APPROVED: M~o~, Cit~'of Cupertino- RULES ON CONDITIONS OF EMPLOYMENT INDEX Category_ S ub_i ect GENERAL ADMINISTRATION 1.0 1.1 1.2 1.3 1.4 1.5 1.6 1.7 Purpose Policy Administration Interpretation Coverage Repeal of Existing Rules Amendments to Rules Effective Date RECRUITMENT AND RETENTION 2.0 2.1 2.2 2.3 2.4 Techniques of Recruitment Examinations Eligibility Lists Selection of Employees Appointment Approval APPOINTMENTS AND EMPLOYEE STATUS 3.0 3.1 3.2 3.3 3.4 3.5 Appointments Certified Status Probationary Status Provisional Status Temporary Status Exempt Status INTER-POSITION TRANSFERS OF EMPLOYEES 4.0 4.1 4.2 4.3 Promotions Transfers Voluntary Reductions Demotions CITYWIDE POLICIES 5.0 5.1 5.2 5.3 5.4 5.5 Discrimination/Affirmative Action Alcohol & Drug Abuse Policy Sexual Harassment American Disabilities Act Family Leave Policy DISCIPLINARY ACTIONS 6.0 6.1 6.2 6.3 6.4 Warning Notices Suspensions Dismissals Discharges Due Process Page 2 2 2 3. 3 3 3 4 4 4 4 5 6 11 12 19 20 20 20 20 21 APPEALS AND HEARINGS GRIEVANCE PROCEDURE ATTENDANCE AND LEAVES OF ABSENCE OTHER CONDITIONS OF EMPLOYMENT EMPLOYEE-EMPLOYEE RELATIONS Section 7.0 7.1 7.2 7.3 7.4 8.0 9.0 9.1 9.1.6 9.2 9.3 9.3.1 9.3.2 9.3.3 9.3.4 9.3.5 9.4 9.5 9.6 9.7 9.8 9.9 9.9.1 9.9.2 10.0 10.1 10.2 10.3 11.0 11.1 11.1.2 11.2 11.3 11.3.1 11.4 11.5 11.6 11.7 12 Subject Form of Appeal Filing of Appeal Representation Who May Appeal Hearings on Appeals Grievance Procedure Hours of Work Holidays Holiday Pay Vacations Sick Leave Personal Leave Family Leave Bereavement Leave Absence Notification Incentive Compensation Leaves of Absence Military Leave Jury Duty Temporary Disability Benefits Pregnancy Disability Leave Adoption Leave Catastrophic Leave Attendance Overtime Non-Exempt Overtime Exempt Employees Stand-by-pay Continuous Service Reimbursement Travel & Expenses Reimbursements Resignations Layoffs Reinstatements Seniority Training Programs Suggestion System Medical, Dental & Life Insurance Memoranda of Understanding Page 21 21 21 21 21 22 23 24 25 25 26 27 28 28 28 28 28 29 29 29 29 29 30 30 31 31 31 31 31 32 32 32 32 32 33 33 33 33 33 CITY OF CUPERTINO RULES ON CONDITIONS OF EMPLOYMENT GENERAL ADMINISTRATION Section 1.0 Purpose The purpose of these Rules shall be to provide the basis of common understanding · between supervisors and employees as to terms and conditions of employment insofar as they are not superseded by a formally adopted Memorandum of Understanding for such terms and conditions of employment as are permitted for inclusion therein under the provisions of Chapter 6 of the Personnel Code, Employer-Employee Relation. Section 1.1 Policy The policy under which these Rules shall be administered is one of fairness both to the employee and the City and of uniformity of action so that all may be aware of the duties and responsibilities of the employee in this regard as well as the fights and privileges of employment with the City. Section 1.2 Administration The administration of these Rules is hereby vested in the Human Resources Manager subject to administrative policies as set forth by the City Manager, who is the Appointing Authority. Section 1.3 Intel?_ retation Any interpretation, definition or meaning of any provision, term or condition contained herein shall be as set forth in writing by the Human Resources Manager whose interpretations, definition or meaning shall be considered as being supplemental hereto. Section 1.4 Coverage All officers, employees and positions shall be subject to these Rules save and except for those officers, employees and positions specifically enumerated herein below. a) All Elected Officers b) City Manager c) City Attorney d) Chairmen and members of appointed boards, commission and committees e) Persons engaged under contract to supply expert, professional, technical or other services. Section 1.5 Repeal of Existing Rules All existing Rules and other policies currently or heretofore in effect relating to those terms and conditions of employment as provided for herein are hereby rescinded and repealed. Section 1.6 Amendments to Rules Amendments to and modifications of these Rules shall be as set forth in the Personnel Code. Section 1.7 ~ These Rules shall be filed with the City Clerk on adoption by the City Council and shall become effective immediately thereafter. RECRUITMENT AND RETENTION Section 2.0 Techniques of Recruitment Recruitment of employees for positions in the City shall be the responsibility of the Human Resources Manager. The techniques and procedures of recruitment shall be those most effective in attracting qualified applicants for positions with the City without regard to race, religion, sex, national origin, political background, or sexual preference. Section 2.1 ,Fr,~lalBil~ Examinations shall be prepared and administered to test fairl, y the fitness of applicants. Said examinations shall be comprised of any one or more processes of written, oral, physical fitness, unassembled or such other method as can serve the purpose of determining the skills and knowlege, qualification or fitness of the applicant. The determination as to the processes that will be used for each position classification shall be that of the Human Resources Division 'who may obtain and utilize such assistant as may be required to fulfill the intent of this section. Said examinations may be competitive or noncompetitive; provided however, that advance public notice be advertised prior to each such competitive examination as to the method by which the eligible list shall be prepared, its effective life, weighting factors and such other detail that may provide the applicants with a better understanding of the examination and selection process for the position for which he/she is applying. Section 2.2 Whenever competitive examinations are administered the names of successful applicants thereto shall be placed on lists from which appointments therefrom shall be made during the effective term of the list. Eligibility lists may be constructed so as to give numerical rankins of successful applicants or in category groupings when said lists are obtained from examinations administered in that manner or from examinations administered on a pass-fail basis. Employment lists shall remain in effect for one year unless exhausted sooner or abolished by the Human Resources Manager. Employment lists may be extended for up to an additional year by action of the Human Resources Manager. Section 2.3 Selection of Employees The selection of a successful applicant for a position with the City shall be made by the Department Head having supervisory control of the position to be filled. The Department Head shall recommend such selection of the Appointing Authority who may approve or disapprove an appointment. If the selection of a successful applicant is to be made from an eligibility list constructed by numerical ranking the person selected shall be from one of the three highest available persons on the list. If the selection of a successful applicant is to be made from an eligibility list constructed by category groupings the person selected shall be from among those available in the highest category before a selection may be made from a lower category. Section 2.4 Appointment Approval All appointments whether from eligibility lists or not an irrespective of the type of position to which one is made shall be approved by the Appointing Authority before becoming effective. APPOINTMENTS AND EMPLOYEE STATUS Section 3.0 Appointments All appointments to positions subject to Jurisdiction B of the Personnel Code and .as approved by the Appointing Authority shall be made in one of the following named manners and the affected employee shall be granted the same status accordingly. Section 3.1 F_2,rlifi.elt_$la~ Certified status shall be granted to all employees occupying positions subject to Jurisdiction B who have successfully completed their probationary period when either appointed from an eligible list or as the result of having successfully completed an examination for the appointment. One of four jurisdictions created by the Personnel Code. Jurisdiction B establishes the provisions and conditions for the appointment, employment and retention of subject employees on a basis of merit and fitness. The following offices, positions and employees are excluded from Jurisdiction B: All elected offices, City Manager, City Attorney, Chairmen and Members of appointed boards, commissions and committees, persons engaged under contract to supply services, Department Heads, employees occupying positions whose principal job requirement is good physical fitness and employees serving under, appointments of provisional, exempt, temporary or emergency status. Cupertino. Personnel Code, title XII, Chapter 1, Article 2, p. 2 and Chapter 4, Article 1, p. 8. Section 3.2 probationary_ Status Probationary status shall be granted to all employees occupying positions subject to Jurisdiction B who have been appointed fi:om an eligibility list. The probationary period shall be twelve (12) months. Section 3.3 provisional Status Provisional status shall be granted to all employees who are appointed on other than a temporary basis to positions subject to Jurisdiction B but for which no eligible lists exists. Said provisional appointments shall be terminated no later than one hundred eighty (180) days after appointment. Section 3.4 Temporary_ Status Temporary status shall be granted to all employees appointed for work on a seasonal, less than one-half time or to other non-permanent work. Full time employment in any' position under a temporary appointment shall not exceed 120 days in any twelve (12) month period.. Section 3.5 ~ Exempt status shall be granted to all employees occupying positions not subject to Jurisdiction B of the Personnel Code. INTER-POSITION TRANSFERS OF EMPLOYEES Section 4.0 Promotions A promotion shall be defined as the appointment of a certified or exempt employee occupying a position in a lower classification to a vacant position in a higher clasification. Promotions may be made on a non-competitive or closed-competitive basis irrespective of the existence of eligible lists for the same position classification which may have been constructed from open-competitive examinations. Section 4.1 Transfers A transfer shall be defined as the appointment of an employee or a vacant position having an assignment to the same pay grade as the position previously occupied by the employee immediately prior to the transfer. The status of the employee so transferred shall not be affected by the transfer; provided, however, that a transfer shall not be made fi:om a position subject to Jurisdiction B to one that is exempt therefi:om. The applicability of requiring a qualifying examination of the employee as a prerequisite to the transfer shall be as determined by the Human Resources Manager in reviewing whether desirable minimum standards of the position have been met. 4 Section 4.2 Voluntary_ Reductions A voluntary reduction shall be defined as the approved request of an employee for an appointment to a vacant position having an assignment to a lower pay grade fi:om the position previously occupied by the employee immediately prior to the new appointment. The status of the affected employee shall not be changed as a result of the new appointment; provided, however, that a voluntary reduction may not be made fi:om a position subject to Jurisdiction B to one that is exempt therefrom. The applicability of requiring a qualifying examination of the employee as a prerequisite to approval of a request for a voluntary reduction shall be as determined by the Human Resources Manager in reviewing whether desirable minimum standards of the position have been met. Section 4.3 ~ A demotion shall be defined as the involuntary reduction in rank or grade and shall be made only for cause. No demotion shall be made without the Appointing Authority first having reviewed a statement for cause as submitted by the Department Head having supervisory control of the employee. Said statement for cause shall be given in writing to the affected employee. The status of a demoted employee shall be determined in the same manner as provided by the rule on voluntary reductions, above. CITY'WIDE POLICIES Section 5.1 Discrimination Affirmative Action In accordance with an in support of equal employment opportunity as specified under Title VII of the Civil Rights Act of 1964, as amended, it is the policy of the City Council of the City of Cupertino to provide all applicants for employment and all employees with equal oppommity in employment without regard to race, religion, national origin, sex, sexual orientation, handicap, or age. The City Council of the City of Cupertino hereby resolves as follows: That the City of Cupertino is committed to take affirmative action in the utilization of minorities and females at all job levels and in all segments of the work force to reflect the percentage distribution of minorities and females in each occupational category as they are available in the labor market. That this affirmative action policy will apply to all employment practices, such as recruitment, selection, transfers, promotions, training, compensation, benefits and terminations. That the City of Cupertino establishes that it will seek to maintain the hiring and/or promotion of qualified persons consistent with changing labor market patterns. That it is the responsibility of the City Manager to ensure that this equal employment opportunity policy is communicated to all present employees, prospective employees, recruitment sources, and the community. 5 That every employee of the City of Cupertino is hereby directed to lend his and her support and cooperation in making equal employment opportunity an integral part of the City's program of personnel administration. Section 5.2 Alcohol and Drug Abuse Policy I. PURPOSE: The purpose of this policy is to comply with the Drug Free Work Place Act of 1988 as passed by Congress. HR5210 requires that all Federal grant recipients, including cities, established an anti- .drag policy for the work place. HR5210 required the City to: 1. Establish a drug free awareness program for employees. 2. Provide a notice to all employees specifying that drugs are illegal in the work place and that action will be taken for violations. 3. Make employment conditional upon compliance with this policy and require the · employee to notify the employer within five working days of a conviction due to a drug related offense occurring in the work place. 4. Notify the applicable granting federal agency with ten days of an employee's conviction due to a drag related offense occurring in the work place. 5. Sanction employees for violation and/or require participation in a treatment program. 6. Make a good faith effort to maintain a drag free work place by following the above requirements. In addition to the fact that such requirements are established by law, a drag free policy is appropriate in that it helps ensure that employees are able to perform their duties safely and efficiently. While the City of Cupertino has no intention of intruding into the private lives of its employees, it does believe that involvement with drags and alcohol can take its toll on job performance and employee safety. A key element of this policy is rehabilitation. Employees who believe they have a problem are urged to contact the Human Resources Division for referral to community resources. The key focus of this policy is prevention through educating employees on the dangers of alcohol and drag abuse, and rehabilitation for those who have such problems. Any disciplinary actions will be evaluated on a case-by-case basis and shall be used as a last resort after rehabilitation efforts have failed. 6 II. POLICY: It is the City policy that employees shall not drink alcohol or use drugs in the course of City business, which shall include lunch time if the employee plans to return to work.* Nor shall they possess alcohol or drags while on City property, or at work locations, or in uniform, nor shall employees sell or provide drugs or alcohol to any employee or to any' person while such employee is on duty. Nor shall any employee have their ability to work impaired as a result of the use of alcohol or drugs when reporting for work. While use of medically prescribed drugs is not a violation of this policy, failure by the employee to notify his or her supervisor before beginning work when taking drags which foreseeable interference with an effective performance of duties or operation of City equipment, can result in discipline up to and including termination. In the event there is a question regarding an employee's ability to safely and effectively perform assigned duties while using such medication, clearance from a qualfied physician may be required. Refusal to submit immeidately to an alcohol and/or drag analysis when requested by City management or law enforcement personnel, as a result of reasonable suspicion, may constitute insubordination and may be grounds for disicpline up to an including termination. Employees 'reasonably believed to be under the influence of alcohol or drags shall be prevented from. engaging in further City work and shall be detained for a reasonable time until he or she can be safely transported fi'om the work site. Higher standards may be promulgated based upon specific job requirements as determined by City management. III. APPLICATIONS: This policy applies to all City employees and to all applicants for positions with the City. This policy applies to alcohol and to all substances, drags or medications, legal or illegal, which could impair an employee's ability to effectively and safely perform the functions of the job. IV. EMPLOYEE RESPONSIBILITIES: An employee must: a. Not report to work while his or her ability to perform job duties is impaired due to alcohol or drug use. b. Not directly, or through a third party, sell or provide drugs or alcohol to any person, including any employee while either employee or both employees are on duty. c. Submit immediately to an alcohol and/or drug test when resonable suspicion of alcohol and/or drag use exists on the job and when requested by a responsible City representative. * There are certain City sponsored activities which will be specifically designated that may include the consumption of alcoholic beverages. Examples of such activities included, but are not limited to, wine tasting classes, employee Christmas parties, Commissioner's dinners, picnics in a city park held during non-work hours, etc. 7 d. Notify his or her supervisor before beginning work when taking any medications or drugs, prescription or non-prescription, which may interfere with the safe and effec- tive performance of duties including operation of City equipment. e. Provide within 24 hours of request bonafide verification of a current valid prescrip- tion for any potentially impairing drug or medication identified when a drag screen is positive. f. Notify the City of Cupertino within five working days after being convicted of any drag related offense occurring in the course of City business. g. Notify the appropriate first-line supervisor upon observation of another City employee whose behavior and/or physical characteristics are reasonably suspicious and harmful to himself/herself and/or others. V. MANAGEMENT RESPONSIBILITIES AND GUIDELINES: a. Managers and supervisors are responsible for understanding this policy and applying it without bias or prejudice. Managers and supervisors must avail themselves of training on the employer's role in handling the special problems of employees who suffer from alcohol or drug dependency. Managers and supervisors may request that an employee submit to a fitness-for-duty examination when there is reasonable suspicion that an employee is impaired, and is unable to perform the job duties required in a safe and efficient manner. When doing so, the manager or supervisor is required to document, in writing, the facts and circumstances leading to the reasonable suspicion that the employee was impaired and could not perform safely on the job. (Note: First-line supervisors should consult with their supervisors, department directors and general services manager, and a joint decision should be made as to whether or not the employee should undergo a fitness for duty medical examination.) When there is a reasonable suspicion that the employee is impaired, the manager or supervisor must attempt to detain the employee until the employee can be safely transported from the work place. If the employee refuses to submit to the fitness-for duty examination, or attempts to leave before safe transport can be found, the manager or supervisor shall remind the employee of the requirements and disciplinary consequences of this policy. Managers and supervisors shall notify their department directors or designee, when there is reasonable suspicion that an employee may have illegal drags in his or her possession. If the department director or designee concurs that there is reasonable suspicion of illegal drag possession, the department director shall notify the appro- priate law enforcement agency. Directors and supervisors must use the reasonable suspicion standards in determining whether a fitness-for-duty examination is warranted. Examples of what could lead to a reasonable suspicion of impairment are: 1) slurred speech; 2) alcohol odor on breath; 3) unsteady waling and movement; 4) size of pupils and their reaction to light; 5) an accident involving City property; 6) verbal altercation; 7) unusual behavior; 8) possession of alcohol or drugs; and 9) infOrmation obtained from a reliable person with personal knowledge. The above is not an exclusive list, but is used for example only. VI. PHYSICAL EXAMINATION AND DRUG SCREENING PROCEDURES: The drug and/or alcohol screening may test for any substance which could impair an employee's ability to effectively and safely perform the functions of his/her assigned job duties, including but not limited to prescription medications, heroin, cocaine, barbituates, amphetamines, marijuana, and alcohol. The examination will be conducted by a licensed physician in a local medical facility. The drug testing will be conducted by a licensed toxicologist in a laboratory identified as having met all legal requirements for performing such tests. The initial type of screening to be performed can be either a blood or urine analysis at the employees option. Positive results must be confirmed in accordance with federal regulations including prescribed test levels. During Fit-For-Duty Examinations: ' 1. A positive result from a drug and/or alcohol analysis may result in disciplinary action, up to and including discharge. 2. If the drag screen is positive, the employee must provide, within 24-hours of request, bonafide verification of a valid current prescription for the drug identified in the drug screen. The prescription must be in the employee's name. 3. If an alcohol or drug test is positive, the supervisor or department director and the general services manager shall review the employee's record to make a determination as to the possibility of rehabilitation for the purpose of returning the employee to his or her assignment; or, after following rehabilitiation, whether to reassign the employee or precede with disciplinary action, up to an including discharge. A positive test for an illegal &rug will be considered impairing to the employee's ability to perform his or her job, and therefore the corrective provisions of this policy will apply VII. CONFIDENTIALTIY: Laboratory reports or test results shall not appear in the employee's general personnel folder. Information of this nature will be contained in a separate confidential medical folder and securely kept under the control of the general services manager. Reports of test results may be disclosed to City of Cupertino management strictly on a need-to-know basis, and to the tested employee upon request. Disclosures without employee (patient) consent may also occur when 9 1. The information is compelled by law or by judicial or administrative process. 2. The information is to be used in administering and employee benefit plan. 3. The information is needed bY medical personnel for the diagnosis or treatment of the patient who is unable to authorize disclosure. VIII.-APPEAL PROCESS: Fit-For-Du _ty Examinations: Employees whose tests results are positive, and who are consequently facing disciplinary action may: Submit a written explanation, accompanied by any documentation's justifying the substance. Prescriptions currently in use must be submitted within 24 hours, but the written explanation accompanied by the prescription and a written recommendation submitted by a doctor or rehabilitation counselor may be submitted within 48 hours of the test results. The doctor conducting conducting the fit-for-duty examination will review the explanation and document and make a recommendation to the general services manager who will forward this recommendation to the City Manager whose decision will be final. Request a meeting with applicable union representative, department director and the general services manager to discuss the possibilities of rehabilitation for the purpose of retaining employment with the City of Cupertino. Each case will be handled on an individual basis. However, the principle of offering rehabilitation as a first resort and disciplinary action as a last resort will govern. Employees may request a re-test, from the sample, by the facility with which the City of Cupertino has contracted, at his or her own expense. If the re-test results contravene the first test results, the City will reimburse the employee the cost of the re-test. ° The City of Cupertino maintains the right to request that a third test be conducted using the same sample in instances where the results of the second test contravene the results of the first. Results of the third test will combine with those of the first two to form the deciding factor. The City will conduct drug and alcohol awareness programs, presented by the Human Resources Division. These programs will include prevention and detection methods, with emphasis on maintaining a drag flee work place. Additionally, printed material will be given to all employees explaining the dangers of alcohol and drag abuse. All employees will be given a copy of this policy. 10 Section 5.3 Sexual Harassment Policy 1. Policy Statement: The City of Cupertino opposes all forms of sexual harassment on the job and in the work site, including acts of employees and non-employees. The City is committed to providing a work environment in which employees are treated with respect and dignity and which is free from discrimination. Sexual harassment, or harassment for any reason by another employee or supervisor, will not be tolerated and is subject to disciplinary action up to and including discharge. All levels of city government share in the responsibility of ensuring a working environment free of sexual harassment. II. ~: Sexual harassment shall be defined as unwelcome sexual advances, requests for sexual favors and other verbal or physical conduct of a sexual nature when such conduct is made explicitly or implicitly a term or condition of employment, is used as a basis for employment decisions, or has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment. III. F, lamp. l.~: 1. Written: suggestive or obscene letters; notes; invitations. 2. Verbal: derogatory comments; slurs; jokes 3. Physical: assault; touching; impeding or blocking movements; or any physical interference with normal work. 4. Visual: leering; sexually-oriented gestures; or display of sexually suggestive or derogatory objects, pictures, cartoons, or posters. 5. Others: threat or insinuation that lack of sexual favors Will result in reprisal; withholding support. IV. Complaint Procedure: Employees who are the victim of, or witness to, any form of discrimination or sexual harassment violation may submit a complaint. Supervisory personnel have a duty to report violations that come to their attention and to take appropriate action. Confidentiality is stressed because of the sensitive nature of the complaint. 1. The basis is the complaint's perception that the behavior, practice or action is discriminatory or offensive and constitutes prohibited discrimination or harassment. Examination of the nature and circumstances of each complaint will determine whether the alleged acts or practices constitute discrimination or sexual harassment. 2. Complaints may be submitted in writing or given verbally. 3. Complaints may include a suggested method of resolution and corrective action. 4. The employee has the choice of submitting the complaint to his/her supervisor, department head or the Human Resources Manager. 11 5. Upon receipt of the complaint, the Human Resources Manager will investigate the charges including contacting the person who allegedly engaged in the sexual harassment, informing him or her of the basis of the complaint and providing an opportunity to respond. 6. Upon completion of the investigation, the Human Resources Manager, in consultation with the department head, will determine what, if any, disciplinary action will be taken. Both parties will be notified of the action to be taken. 7. If it is determined the sexual harassment occurred, appropriate disciplinary action up to and including dismissal will be taken. The severity of the discipline will be deter- mined by the s. everity and/or frequency of the offense. 8. Disciplinary action taken under this procedure may be appealed consistent with provisions within Memoranda of Understanding or the Rules on Conditions of Employment. V. Responsibilities: 1. The City Manager is responsible for enforcement of the city policy against harassment. 2. The Human Resources Manager is responsible for ensuring that all complaints of harassment are investigated thoroughly and promptly, including presentation of recommendations for any necessary action to the city manager. 3. Every department head is responsible for informing all employees, including super- visors, of the city policy against harassment and for taking the steps necessary to set a positive example in the prevention of harassment. 4. Every supervisor of every City employee is responsible for taking immediate and appropriate corrective action upon the observation of any incident of harassment or upon receipt of an oral or written report of any occurrence of harassment. 5. Every City employee is responsible for reporting any act of harassment to the immediate supervisor or department head or Human Resources Manager. VI. Penalties 1. Violation of this policy shall generally constitute just and reasonable cause for discipline, up to and including termination. 2. In addition, the courts have found individuals personally liable when they engage in or take no action to prevent sexual harassment. Section 5.4 Americans With Disabilities Act The purpose of this policy is: · to'prohibit and eliminate any discrimination in employment against a qualified individual with a disability; · to define what constitutes "disability"; · to define who is a "qualified individual with a disability"; 12 to define discrimination on the basis of disability; and to establish a procedure for investigating and resolving internal disability discrimination complaints. Discrimination on the basis of disability against an applicant or an employee who is a qualified individual with a disability, by a supervisor, management employee, or co-worker is · not condoned and will not be tolerated. This policy applies to the job application process and to all terms and conditions of employment including, but not limited to, hiring, placement, promotion, disciplinary action, layoff, recall, transfer, leave of absence, compensation and training. All complaints of discrimination on the basis of disability will be promptly and objectively investigated. Disciplinary action up to and including termination will be instituted for behavior described in the definition of discrimination on the basis of disability set forth below. Any retaliation against a person for filing a discrimination charge or making a discrimination complaint is Prohibited. DEFINITIONS "Disability" is: (1) a physical or mental impairment that substantially limits one or more major life activity; or (2) having a record of such an impairment; or (3) being regarded as having such an impairment. 1. Physical or Mental Impairments Physical or mental impairments include, but are not limited to: vision, speech and heating impairments; emotional disturbances and mental illness; seizure disorders; mental retardation; orthopedic and neuromotor disabilities; learning disabilities; diabetes; heart disease; nervous conditions; cancer, asthma; Hepatitis B; HIV infection; and drug addiction if the addict has successfully completed or is participating in a rehabilitation program and no longer uses illegal drags. The following conditions are not physical or mental impairments: transvestitism; illegal drug use; homosexuality and bisexuality; compulsive gambling, kleptomania; pyromania; pedophillia; exhibitionism; and voyeuris; pregnancy; height, weight; eye color; hair color; left-handedness; poverty; lack of education; a prison record; and poor judgment or quick temper if not symptoms of a mental or physiological disorder. 13 2. Substantial Limitation of Ma)or Life Activities An individual is disabled if he or she has a physical or mental impairment that (a) renders him or her unable to perform a major life activity, or that (b) substantially limits the condition, manner or duration under which he or she can perform a particular major life activity in comparison to other people. Major life activities are functions such as caring for oneself, performing manual tasks, walking, seeing, heating, speaking, breathing, learning and working. In determining whether physical or mental impairment substantially limits the condition, manner or duration under which an individual can perform a particular major life activity in comparison to other people, the following factors shall be considered: a) the nature and severity of the impairment; b) the duration or expected duration of the impairment; and c) the permanent or long-term impact (or expected impact) of or resulting fi.om the impairment. In determining whether a Physical or mental impairment substantially limits an individual with respect to the major life activity of "working" the following factors should be considered: a) the geographical area to which the individual has reasonable access; b) the job fi.om which the individual has been disqualified because of an impair- ment and the number and types of jobs within that geographical area utilizing similar training, knowledge, skills or abilities from which the individual is also disqualified because of the impairment; and/or c) the number and types of other jobs within that geographical area not utilizing similar training, knowledge, skills or abilities (to the job from which dis- qualified) fi.om which the individual is also disqualified because of the impair- ment (broad range of jobs in various classes). 3. Having a Record of Impairment An individual is disabled if he or she have a history of having an impairment that substantially limits the performance of a major life activity; or has been diagnosed, correctly or incorrectly, as having such an impairment. 4. Regarded as Having a Disability_ An individual is disabled if he or she is treated or perceived as having an impairment that substantially limits major life activities, although no such impairment exists. 14 B. Qualified Individual with a Disability. A "qualified individual with a disability" is a person who (1) satisfies the job related requirements for the position, and (2) can perform the "essential functions" of the position despite their disability, or who (3) with "reasonable accommodation" can perform the essential functions of the position. 1. $1~tisfied Job-Related Requirements The first step is to determine whether the disabled individual satisfied the job-related requirements of the position. Satisfying the job-related requirements of the position means that the disabled individual possesses the appropriate educational background, employment experience, skills, and license required for the position. 2. Essential Factors The second step is to determine whether the individual can perform the essential functions of the position despite their disability. Essential functions are the fundamental duties of a position. Marginal or peripheral functions of a position are not essential functions. A function may be essential because: a) the reason the position exists is to perform that function; b) of the limited number of employees available among whom the performance of that job function can be distributed; and c) it is highly specialized and requires specific expertise or skill to perform. The following factors shall be considered in determining whether a function is essential; the agency's judgment as to which functions are essential; written job descriptions; the amount of time spent on the job performing the function; the consequences of not requiring the performance of the function; the terms of a collective bargaining agreement or MOU; and the work experience of past and present incumbents in the position. 3. Accommodation If the individual cannot perform the essential functions despite their disability, the third step is to determine whether reasonable accommodation would enable the individual to perform the essential functions of the position. Accommodation is any change in the work environment or in the way things are customarily done that enables a disabled individual to enjoy equal employment opportunities. Accommodation means modifications or adjustments: 15 a) to a job application process to enable an individual with a disability to be considered for the position; b) to the work environment in which a position is performed so that a disabled person can perform the essential functions of the position; and c) that enable disabled individuals to enjoy equal benefits and privileges of employment 'as other similarly situated employees without disabilities enjoy. Accommodation includes making existing facilities and equipment used by employees readily accessible to and usable by individuals with disabilities. Accommodation applies to: all employment decisions and to the job application process; all services and programs provided in connection with employment; · non-work facilities provided by the agency to all employees; and known disabilities only. Accommodation is not required iff it eliminates essential functions of a position fi:om the disabled individual's job; or adjustments or modifications requested are primarily for the benefit of the disabled individual. 4. Undue Hardship Agency will not provide an accommodation that imposes an "undue hardship" on the operation of the agency's business. Undue hardship means significant difficulty or expense incurred in the provision of accommodation. Undue hardship includes but is not limited to financial difficulty. Undue hardship refers to any accommodation that would be unduly costly, extensive, substantial or disruptive, or that would fundamentally alter the nature or operation of the business. Whether a particular accommodation will impose an undue hardship is determined on a case-by-case basis. The following factors will be considered in determining whether an accommodation would create an undue hardship: the nature and cost of the accommodation; the financial resources of the agency; the number of employees' and the type of operations of the agency, including the composition and functions of its workforce. 5. Determining the Appropriate Accommodation If a qualified individual with a disability requests the provision of a reasonable accommodation, the agency shall engage in an informal, interactive process with the disabled person which identifies the precise limitations resutling from the disability and the potential accommodations that could overcome those limitations. 16 The accommodation process shall generally involve five steps. First, the agency shall analyze the particular job at issue and determine its purpose and essential functions. Second, the agency shall consult with the disabled individual to ascertain the precise job-related limitations imposed by the individual's disability. Third, the agency shall consult with the disabled individual to identify potential accommodations. Fourth, the agency shall assess the effectiveness of each potential accommodation with regard to enabling the individual to perform the essential functions of the position. Finally, the agency shall consider the preference of the individual to be accommodated and select and implement the accommodation that is most appropriate for both the employee and the agency. C. Discrimination on the Basis of Disability Discrimination on the basis of disability means: to limit, segregate, of classify a job applicant or employee in a way that may adversely affect opportunities or status because of the applicant's or employee's disability; to participate in a contract which could subject an applicant or employee with a disability to discrimination; · to use any standards, criteria or method of administration which could have the effect .of discriminating on the basis of disability; · to deny equal jobs or benefits because of a disability;. · to fail to make reasonable accommodations to known physical or mental limitations of an otherwise qualified individual unless it can be shown that the accommodation would impose an undue hardship; · to use a selection criteria which excludes a disabled person unless the criteria is job-related and consistent with business necessity; and · to fail to use employment tests in a manner that ensures that the test results accurately reflect the applicant's or employee's skills or aptitude for a particular job. A job applicant or employee who believes he or she has been discriminated against on the basis of disability may make a written complaint as soon as possible after the incident to: (a) 'complainant's immediate supervisor; (b) complainant's department head; or (c) the Human Resources Manager, who has been designated to coordinate agency's efforts to comply with federal and state laws concerning employment discrimination on the basis of disability. In order to facilitate the investigation, the complainant is encouraged to submit the complaint within 30 days of the alleged incident(s). Where reasonable circumstances prevent the filing of the complaint within this time period, complaints received after this time period may be accepted. 17 2. The complaint shall include: · a description of the offending behavior(s) or violations; · date(s), time(s) and location(s) of incident(s); · name(s) of alleged offender(s); · name(s) of witnesses, if any; and · remedy desired. 3. Complainant's immediate supervisor or department head shall refer all comPlaints received to the Human Resources Manager. 4. Upon receipt of a complaint, the Human Resources Manager shall investigate all charges. The investi- gation shall include interviews with: (a) the complainant; (b) the person(s) allegedly engaged in discrimination, and (c) any other person believed to have relevant knowledge concerning the complaint. o Upon completion of the investigation, the Human Resources Manager shall review the information gathered through the investigation to determine whether the alleged conduct constitutes dis-crimination, giving consideration to all factual information, the totality of the circumstances, including the nature of the alleged discriminatory conduct and the context in which the alleged incidents occUrred. o The Human Resources Manager shall then prepare a written report setting forth the result of the investigation and the determination as to whether discrimination occurred. The results of the investigation shall be conveyed to appropriate persons including to the complainant, the person(s) allegedly engaged in discrimination, the supervisor, and the department head. 7. If it is determined that discrimination occurred, swift and appropriate disciplinary action will be commensurate with the severity and/or frequency of the offense. 8. Reasonable steps shall be taken to protect the victim and other potential victims from further discrimination. 9. Reasonable steps shall be taken to protect the victim from retaliation as a result of communi- cating the complaint. 18 Section 5.5 Family Leave Polity Effective August 5, 1993 the Family Leave Act became effective and pertains to all local governments and other employers with more than 50 employees. Family and Medical Leave (FMLA leave) provides employees with the right to take family care and medical leave for up to 12 work weeks during any 12 month period if he/she: 1) has been employed for at least 12 months; and 2) has worked at least 1250 hours during the last · 12 months. The City requires an employee to use accrued sick leave which becomes part of the leave entitlement. FMLA leave can be taken because of: 1) The birth of a child of an employee. 2) The placement of a child with an employee in connection with the adoption of a child by an employee. 3) The serious illness of a child of an employee or to care for a parent or a spouse who has a serious health condition; or 4) a serious health condition that makes the employee unable to perform the functions of their position. During any FMLA leave the City must maintain the employee's coverage under any group health plan on the same conditions as coverage would have been provided if the employee had been continuously employed during the entire leave period. Other benefits can be maintained at the employee's cost. If an 'employee fails to remm fi:om leave, the employer has a right to reimbursement for the group health costs during the time of the leave. There are two exceptions to the preceding: 1) The employee is too ill to return; or, 2) The employer is "key" and the employer believes "grievous economic injury will result if that employee is reinstated. An employee should provide as much advance notice as possible of the date of the Family Medical Leave being requested and an estimated duration. The employer shall respond to the leave request as soon as possible. When granting FMLA leave, the employer shall provide the employee with the following notice: 1) That the leave will be counted as FMLA leave; 2) Any requirements for the employee to provide medical certification; 3) The employee's need to use paid leave where applicable; 4) any requirement of the employee to make payment to maintain benefits and the arrangements for making such payments; 5) any requirements that the employee provide a fitness-for-duty certificate to be restored to employment; 6) the employee's status as "key" * employee and the potential consequences that restoration may be denied; 7) The employee's right to restoration to the same or an equivalent position upon return from leave; and 8) the employee's potential liability for payment of health insurance premiums paid by the employer during the employee's unpaid leave if the employee fails to return to work after taking leave. * "key" employee is an employee who is among the highest paid ten percent of all the City of Cupertino employees. 19 DISCIPLINARY ACTIONS Section 6.0 Warning Notices At the discretion of the Department Head having supervisory control warning notices in writing may be prepared and served on an employee for minor infi'actions of regulations or for unacceptable conduct. A copy of each such warning notice so served will be forwarded to the Human Resources Manager who will retain it with other personnel records of the offending employee. Such records may be used to substantiate subsequent, more serious disciplinary actions. The misconduct of an offending employee shall be reviewed for indication of improvement or correction. Such information will be retained with other personnel records for a period of three years only. Section 6.1 Suspensions A Department Head having supervisory control may suspend an employee without pay for serious or repeated infractions of regulations. Such suspensions may not exceed thirty (30) days in any twelve (12)month period without the right of the employee to file an appeal with the Appointing Authority for a hearing on the matter. (See Section 6.3 Who May Appeal) Nothing contained herein shall preclude the right of the Department Head to require an employee to cease work immediately and leave the work premises without pay when such action by the Department Head is in the interest of safeguarding the health, safety and welfare of the City, its employees, citizens and their properties. Section 6.2 ~ An employee may be dismissed by a supervising Department Head for substantiated cause when it is deemed to be in the best interest of the City. Upon verbal or written notice of dismissal an employee shall be required to leave the work premises with loss of all rights and privileges of employment. An employee holding certified status may appeal the dismissal to the Appointing Authority with three (3) working days from date of notice of dismissal. If no appeal is initiated within the specified period, the dismissed employee shall be discharged from employment. Section 6.3 ~ An employee shall be discharged from employment with the City after dismissal without appeal or at~er denial of an appeal by the Appointing Authority. An employee so discharged shall lose all pay, rights and privileges of employment with the City on the effective date of notice of dismissal. A written statement of the causes of discharge and dismissal shall be prepared for the employee's personnel records and a copy given to the affected employee. 20 Section 6.4 ~ In each and every instance involving the issuance of warning notices, suspensions or the dismissal or discharge of an employee subject to the merit and fitness provisions of Section 2.52.040 of the Municipal Code, such will not be effectuated without the employee first having been given in writing the basis for such action being taken and the opportunity to question the reasons therefore of his supervisor or Department Head. Said opportunity shall be as soon as it is practical after having been served the written notice and shall not constitute any limitation otherwise available through the grievance or appeal or procedure. APPEALS AND HEARINGS Section 7.0 Form of Appeal All appeals to the Appointing Authority shall be in writing and shall be signed by the employee. Section 7.1 Filing of Appeal The filing of an appeal to the Appointing Authority shall be accomplished by the submission of the signed written document to the Human Resources Manager who shall be responsible for the issuance of proper notifications. Section 7.2 Representation An employee submitting an appeal to the Appointing Authority may be represented by a person of his choosing or may elect to represent himself; provided, however, that when an employee is to be represented by another person the name of that person shall be made known to the Appointing Authority at least three days prior to the scheduled hearing. Substitution of representation may only be as permitted by the Appointing Authority. Section 7.3 Who May Appeal Any employee subject to the merit and fitness provisions of Section 2.52.040 of the Municipal Code may file an appeal with the Appointing Authority as the final step of the grievance procedure, for suspensions exceeding thirty (30) days in any twelve (12) month period, or after notice of dismissal. Appeals fi.om dismissal may be filed only by employees currently holding certified status at the time of dismissal. Section 7.4 Hearings on Appeals If deemed necessary, heatings may be held on apPeals by the Appointing Authority. The conduct of such heatings shall be as determined necessary by the Appointing Authority to best evaluate each appeal on its merits. 21 GRIEVANCE PROCEDURE Section 8.0 Grievance Procedur~ Definition and Procedure. A grievance is a good faith dispute or difference of opinion raised by an employee against the City involving the meaning, interpretation or application of the express prOvisions of an applicable Memorandum of Understanding or the Rules on Conditions of Employment or existing work rules. A grievance shall be processed in the following manner: Step_ 1: Any employee who has a grievance shall submit it designated as a grievance to the employee's immediate supervisor, who is designated for this purpose by the City. The supervisor shall give the employee an oral answer within five (5) calendar days after such presentation. S_t13l_2: If the grievance is not settled in step .1 and the employee wishes to advance the grievance to Step 2 of the grievance procedure, it shall be referred in writing to the employee's next highest supervisor within five (5) calendar days after the supervisor's oral answer, or answer due in Step 1, and shall be signed by the aggrieved employee and the employee's designated representative/Union Business Agent, if applicable. The written grievance shall contain a complete statement of the facts, the provision of the Memorandum of Understanding or work rules which the City is alleged to have violated and the relief requested. The supervisor or other person designated for this purpose shall discuss the grievance within five (5) calendar days with the employee and the employee's designated representative at a time mutually agreeable to the parties. If no settlement is reached, the supervisor or other person designated for this purpose shall provide the employee a written ~-aswer within five (5) calendar days following their meeting. Step 3: If the grievance is not settled in Step 2 and the employee wishes to appeal the grievance to Step 3 of the grievance procedure, it shall be referred in writing to the employee's Department Head within five (5) calendar days after the supervisor's answer in Step 2 and shall be signed by both the aggrieved employee and the employee's designated representative. The Department Head shall discuss the grievance within five (5) calendar days with the employee and the employee's designated representative at a time mutually agreeable to the parties. If no settlement is reached, the Department Head shall give the City's written answer to the employee within five (5) calendar days following their meeting. Step 4: If the grievance is not settled in Step 3 and the employee wishes to appeal the grievance to Step 4 of the grievance procedure, the employee's designated representative may refer the grievance to advisory mediation as described below within 14 calendar days after the decision is provided at the third step. (1) The parties shall attempt to agree upon an advisory arbitrator within seven (7) calendar days after receipt of the notice of referral. In the event that parties are unable to agree upon an advisory arbitrator within said seven (7) day period, the parties shall immediately jointly request the State Mediation and Conciliation Service to submit a panel of five (5) advisory arbitrators. Each party retains the right to reject one panel in its entirety and request that a new panel be submitted. Both the employee's designated representative and the City shall have the right to strike two (2) names fi:om the panel. The parties shall alternatively strike names until one remains. The person remaining shall be the advisory arbitrator. 22 (2) The advisory arbitrator shall be notified of his/her selection and shall be requested to set a time and place for the hearing, subject to the availability of the employee's designated representative and the City representative. (3) The City or the employee's designated representative have the right to request the arbitrator to require the presence of witnesses or documents. The City and the employee's designated representative retain the right to employ legal counsel. (4) The advisory arbitrator shall submit his/her recommendation in writing within thirty (30) days following the close of the hearing or the submission of briefs by the parties whichever is later. (5) More than one grievance may be submitted to the same advisory arbitrator if both parties mutually.agree in writing. (6) The fees and expenses of the advisory arbitrator and the cost of a written transcript shall be divided equally between the City and the employee's designated representative; provided, however, that each party shall be responsible for compensating its own representatives and witnesses. Limitations on Authori _ty of Advisory_ Arbitrator. The advisory arbitrator shall have no right to amend, modify, ignore, add to, or subtract from. the provisions of the Memorandum of Understanding or Rules on Conditions of Employment. The advisory arbitrator shall consider and decide only the question of fact as to Whether there has been a violation, misinterpretation, or misapplication of the specific provisions of the applicable 'document. The advisory arbitrator shall be empowered to determine the issue raised by the grievance as submitted in writing at the Second Step. The advisory arbitrator shall have no authority to make a recommendation on any issue not so submitted or raised. The advisory arbitrator 'shall be without power to make recommendations contrary to or inconsistent with, in any way, applicable laws or rules and regulations of administrative bodies that have the force and effect of the law. The advisory arbitrator shall not in any way limit or interfere with the powers, duties and responsibilities of the City under law and applicable court decisions. The recommendation shall be advisory only to the Appointing Authority. The Appointing Authority will make the final decision. ATTENDANCE AND LEAVES OF ABSENCE Section 9.0 Hours of Work The normal work week shall be Monday through Friday. The normal work day shall be from 8:00 a.m. to 5:00 p.m. except for Friday, which is 7:30 a.m. to 4:30 p.m. with one (1) hour off for lunch. 23 A variance to the normal work week or work day may be established by the Department Head with the written approval of the Appointing Authority when such is deemed by the Appointing Authority to be n the best interest of the City. Any such variance shall identify the positions to which it applies and shall be filed with the Human Resources Manager. The normal work week shall be 40 hours in seven days. Section 9.1 Holidays The following named holidays shall be considered as non-work days: a) New Year's Day b) Martin Luther King Day c) Washington's Birthday d) Memorial Day e) Independence Day f) Labor Day g) Veteran's Day · h) Thanksgiving Day i) Friday Following Thanksgiving Day j Christmas Eve (1/2 shift) k. Christmas Day 1. New Year's Eve (1/2 shift) Section 9.1.2 In addition to the foregoing paid holidays, eligible employees shall be allowed to schedule 20 hours as additional holiday leave not to be taken in increments of less than one (1) hour. This floating holiday leave shall be taken at dates of the employee's selection, provided that 1) prior supervisory approval be obtained, and 2) before the end of the 2nd pay period in December of each calendar year. For new employees, floating holiday leave will be prorated in the calendar year in which they were hired in the following manner: a) Employees hired after January 1 but on or before March 31 shall be entitled to 20 hours floating holiday leave in that calendar year. b) Employees hired on or after April 1 but on or before September 30 shall be entitled to 10 hours of floating holiday leave in that calendar year. c) Employees hired on or after October 1 but before December 31 will not be entitled to floating holiday leave in that calendar year. Section 9.1.3 When a holiday or a non-work day falls on a Saturday the preceding Friday shall be observed as the non-work day and when a holiday falls on a Sunday the following Monday shall be observed as the non-work day. 24 Section 9.1.4 Nothing contained herein shall preclude the fight of the Department Head with the approval of the Appointing Authority to reschedule work assignments or hours of work to meet emergency situations and other administrative necessities caused by the observance of a holiday or non-work day or period; provided, however, that all such affected employees are duly compensated for said rescheduled work assignments. Section 9.1.5 Employees whose normal work day is at variance with the normal work hours specified in Section 9.0 of these rules may be compensated for the differential shift hours their duties require. The Appointing Authority may establish suitable administrative policies and guidelines for this compensation. Section 9.1.6 Holiday Pay In order for an employee to receive his/her regular pay for a holiday or designated non- work day, work must be performed on the regular scheduled day before and the regular scheduled day after the holiday or designated non-work day. Employees on vacation, injury leave, approved short term leave of absence, with or without pay, or who submit satisfactory evidence of personal illness shall be considered as working their regular schedule for pay purposes. Section 9.2 Vacations All employees, other than those holding temporary status, whose work assignment is of a recurring nature of not less than a normal work week shall accrue vacation credits. Accrued vacation may be taken with the prior approval of the Department Head. Vacation leave must be taken in no less than one (1) hour increments. During the first three years of employment, an employee shall earn vacation credit on the basis of 5/6 work day, or the hourly equivalent, for each complete month of continuing service. During the fourth year of employment, an employee shall earn vacation credit on the basis of 1/1/4 work days, or the hourly equivalent, for each completed month of continuing service. During the tenth year of employment, an employee shall earn vacation credit on the basis of 1 5/12 work days, or the hourly equivalent, for each completed month of continuing service. During the fifteenth year of employment and thereafter an employee shall earn vacation credits at the rate of 1 2/3 work days, or the hourly equivalent, for each month of completed continuous service. During the twentieth year of employment and thereafter, an employee shall earn vacation credits at the rate of 1 5/6 work day or the hourly equivalent for each month of completed continuous service. An employee may carry over to the next year any portion of vacation credit but shall be limited to not more than that which was earned during the previous year. 25 An employee may accrue no more vacation credit than twice the annual rate being earned. On termination of employment or on receiving a leave of absence of more than three (3) months an employee shall be compensated for all earned but unused vacation accrued at the time of termination or at the start of said leave of absence. Unused'vacation may not be used to extend final employment date beyond the annual rate being earned. The accrual of vacation credits for those employees whose normal work week is of not less than one-half (1/2) time shall be prorated according to the time of the recurring work assignment as to the normal work week. Employees may convert, on a once per calendar year basis, unused vacation time for payment subject to the following conditions. 1. The employee must have an earned vacation of a minimum of 15 days. 2. Any payments made for unused vacation will be subject to all appropriate taxes as determined by the Finance Department. 3.' Minimum exchange will be 1 day, maximum exchange will be 5 days. All changes are irrevocable. Section 9.3 ~ All full time employees, other than those holding temporary status, shall earn eight (8) hours per month sick leave time without limit on accumulation. Those permanent employees working less than full time (at least 20 hours per week) shall earn in one month the number of hours sick leave they would normally work in one day or the equivalent without limit on accumulation. Employees absent without pay for any reason for more than forty (40) hours during a calendar month shall not earn sick leave benefits for that month. Sick leave may be utilized due to the employee's personal illness, injury, maternity, or sickness or injury in the immediate family. Immediate family is defined as spouse and children. Employees shall, whenever possible, make appointments for medical, dental, and similar purposes on non-work hours. If this is not possible, sick leave may be used for these purposes. With proper notice and approval of the supervisor, sick leave shall be taken in periods of no less than one-half hour increments. Employees will have the option, subject to approval, of converting sick leave to vacation leave on a two-to-one basis. The maximum allowable exchange will be 96 hours of sick time for 48 hours of vacation leave per calendar year. Minimum exchange will be 8 hours sick leave for 4 hours of vacation. An employee may convert sick leave in excess of 320 hours to vacation leave on a one-to-one basis to a maximum of 48 hours and a minimum of 4 hours. As a condition of converting sick leave to vacation, all employees will be required to use at lease one-half vacation accrued during the previous twelve months. 26 Such conversion, either to exchange sick leave for 'vacation or vice versa shall be subject to the following conditions: 1. All requests to exchange sick leave for vacation time shall be submitted in writing to the Department Head at least 60 calendar days in advance of intended vacation utilization. 2. The granting of such exchange and subsequent use will be the discretion of the Department Head. 3. If twelve (12) months have elapsed since approVal of the exchange of sick leave for vacation time, (after submitting at least one written request for utili- zation) the employee will have the right to re-convert the vacation time to sick leave in reverse ratio to the original exchange. This exchange will be allowed only for previously converted sick time to vacation and will not be permitted for regularly accrued vacation time. 4. If an employee, after converting sick leave to vacation time, exhausts all of his/her remaining sick leave due to injury or illness, he/she may make a written request to the Department Head to re-convert vacation time to sick leave on a reverse ratio basis. Approval will be subject to an assessment by the Department Head as to the validity of the illness/injury and whether or not a written physician's statement attesting to the illness/injury is required will be at the sole opinion of the Department Head. 5. If the employee's vacation accrual exceeds the maximum allowable accrual, he/she will have the option to re-Convert vacation time back to sick leave on a reverse ratio basis. Such re-conversion shall be limited to previously converted sick leave/vacation and may not exceed the amount necessary to reduce the accrued vacation to the maximum allowable. Regularly accrued vacation time will not be eligible for this re- conversion to sick leave and vacation time will not be eligible for this re-conversion to sick leave and any regularly accrued vacation time accrued in excess of the maximum allowable will be disallowed and not subject to utilization by the employee. NOTE: As used in this document, "reverse ratio" is intended to mean that the ratio of sick leave to vacation will revert to the original ratio at the time the initial exchange was implemented. Section 9.3.1 ~ The City shall allow accumulated sick leave to be used for conducting personal business which cannot be conducted outside regular working hours. The employee must request leave, if non-emergency, at least forty-eight (48) hours (two working days) prior to the time of utilization giving the reason for the request on the form presently provided. In cases of emergency, the forty-eight (48) hour notification procedure may be waived by the immediate supervisor, provided the form is completed and the reason for the request is stated upon return. 27 Section 9.3.2 F_amily_Lf, a~ The City of Cupertino will be in compliance with State and Federal Leave Laws. Section 9.3.3 Bereavement Leave Employees shall be granted paid bereavement leave not to exceed three (3) work days upon the Occasion of death of a close relative. Close relatives are defined as mother, father, sister, brother, wife, husband, child, grandparent, grandchildren, mother-in-law and father-in-law. Section 9.3.4 Absence Notification An employee is expected not to absent himself fi:om work for any reason other than personal illness without making prior arrangements with his supervisor. Unless prior arrangements are made, an employee, who for any reason, fails to report for work must make a sincere effort to immediately notify his supervisor his reason for being absent. If the absence, whether for personal illness or otherwise, is to continue beyond the first day, the employee must notify the supervisor on a daily basis unless otherwise arranged with his supervisor. In proper cases, exceptions will be made. Any unauthorized absence of an employee fi:om duty shall be deemed to ban absence without pay and will be grounds for disciplinary action by the Department Head. In the absence of such disciplinary action, any employee who absents himself/herself for three days or more without authorized leave shall be deemed to have resigned. Such absence may be covered, however, by the Department Head by a' following grant of leave with or without pay when extenuating circumstances are found to have existed. Section 9.3.5 Incentive Compensation The City shall pay any employee for unused non-vested leave upon retirement, or termination for other than just cause, according to the following schedule: 1. If upon retirement, which shall require the formal filing of the appropriate forms with the Public Employees Retirement System, and employee has at lease 320 hours of accrued non-vested leave a cash payment shall be made equivalent to eighty-five percent (85%) of the dollar value of the unused non-vested balance. The dollar value for such payment shall be calculated at a wage rate which is the average of the preceding five (5) years for the employee, or for each full year of employment if employed fewer than five years. 2. If upon termination for other than discharge with just cause, an employee has at least 320 hours of accrued non-vested leave a cash payment shall be made equivalent to seventy percent (70%) of the dollar value of the unused non-vested leave balance. The dollar value for such payment shall be calculated at a wage rate which is the average of the pre- ceding five (5) years for the employee, or for each full year of employment if employed fewer than five years. Section 9.4 Leaves of Absence Leaves of absence without pay not to exceed three (3) consecutive work days may be granted to an employee by his/her Department Head. Such leaves of absence in excess of three (3) consecutive work days shall require the prior approval of the Appointing Authority. All such leaves of absence in excess of ten (10) work days shall have the prior written approval of the Appointing Authority and shall be reported to the Human Resources Manager on the appropriate form provided. 28 Section 9.5 ~ Military leave shall be granted in accordance with the provisions of State law. All employees entitled to military leave shall give their supervisor an opportunity, within the limits of the military requirement, to determine when such leave shall be taken. Section 9.6 Jury_ Duty Employees called for jury duty shall be paid the difference for such non-work time between the base salary they would have earned had they not been required to serve or be in attendance and the base salary, exclusive of any mileage allowance, received for such service. Section 9.7 Temporary_ Disability_ Benefits Any employee sustaining an injury arising out of, or in the course of, the performance of his job and who cannot work at the duties and responsibilities normally assigned to that job is entitled to receive temporary disability payments as prescribed by State law. Any employee entitled to receive temporary disability payments may elect to supplement such payments with an mount not to exceed that which is the employee's weekly earning or weekly earning capacity by use of sick leave payments to the extent that such sick leave has been accrued to the employee's account. Section 9.8 Pre_maancy Disability_ Leave A pregnant employee is entitled up to four (4) months leave of absence without pay for temporary disability resulting from pregnancy, miscarriage, childbirth or recovery therefrom. Employees shall take unpaid leave of absence during such leave except that accrued vacation pay and sick leave may be taken at the option of the employee. As with all other temporary disabilities, a physicians certificate is required to verify the extent and duration of the temporary disability. An employee who plans to take a pregnancy leave must give a reasonable notice (not less than four (4) weeks) before the date she expects to take the leave and the estimated duration of the leave. The City will pay health and welfare benefits at the same rate as prior to the leave until the employee is released by her physician to return to work or for sixty (60) days, whichever comes first. . Section 9.9 ~i.0.gli.o.a_Lgl~ Upon request a leave of absence without pay for up to four (4) weeks will be granted to adoptive parents. Accrued vacation pay and sick leave may be taken at the option of the employee during this leave time. The City will pay health and welfare benefits at the same rate as prior to the leave. 29 Section 9.9.1 Catastrophic Leave 1. The City will form a committee to establish a definition of catastrophic or life-threatening illness. This committee will evaluate each individual case when it is submitted to quality to receive funds. The only limitation is that the employee must be the one facing the illness. The committee has the right to ask the applicant to submit further documentation from their physician to determine the applicant does suffer a catastrophic or life- threatening illness. All benefited employees who have passed initial probation with the City will be eligible to receive assistance. An employee does not have to be a contributor to be eligible. An employee or their representative must complete a prescribed application form together with supporting medical documentation to the Human Resources Division when applying for funds. 3. A recipient must have used all of their available leave hours before he/she is eligible. 4. The minimum time an employee could receive funds would be one week. The maxi- mum mount is two months (LTD becomes available at this time). 5. Vacation leave and compensatory time offwill be the only leave of absence hours that may be donated. An employee may not donate vacation leave hours Which would re- duce his/her total accrued leave balances to less than 120 hours. Leave credits may be donated in any pay period. All leave donations are irrevocable. 6. A leave of absence transfer drive will be held whenever necessary to provide for a minimum catastrophic balance which is the equivalent of 40 hours of the average hourly rate of full-time permanent employment. Transfers may be in increments of one hour or more. All donations will be confidential. There will be no selling or coercion of employees to donate. If the bank is depleted, a vacation transfer drive may be held at the request of the Committee. 7. Donated leave hours will be converted to cash and deposited in a time-bank where it will be available for distribution. Interest accruing from the bank shall be credited the time-bank. Checks will be issued to the recipient with the regular payroll which will keep them in an active employment mode with the City. This procedure prevents overpayments or corrections since it comes after the actual leave has been taken. (Conversion allows for adjustments for different rates of pay.) No employee shall receive payment for more than 100% of their regular pay. Section 9.9.2 Attendance Employees shall be expected to perform their given work assignments diligently until the end of that work period. An employee who is not able to do so shall so advise his superVisor of that fact at the earliest possible time after that fact is known to him/her. Abuse of attendance requirements may be grounds for appropriate disciplinary action. 30 Section 9.9.3 Adequate and proper attendance records shall be maintained records shall form the basis for payroll and accounting requirements. for each employee which Section 10.0 Overtime If it is. required for an employee to perform work outside compensation shall be made in one of the following ways: of the normal work week, Section 10.1 Non-Exempt Overtime All approved work performed by employees in excess of 40 hours in a seven day work week, shall be paid at the overtime rate of one and one-half (1 1/2) times the normal rate of pay. Work performed on regularly scheduled days off, City holidays or during an employee's scheduled vacation shall be considered to be overtime and paid accordingly. At the employee's discretion, compensatory time off may be granted for overtime worked at the rate of time and one-half for each hour worked in lieu of compensation in cash. Compensatory time may be accrued up to 60 hours. Section 10.2 Exempt Employees Management and non-represented professional employees designated exempt under the Fair Labor Standards Act are ineligible for overtime payment. However, no deduction fi.om leave balances are made when such employee is absent less than a regular work day. Section 10.3 Employees who are required to make themselves available for being called back to work outside the normal work period shall be compensated for such stand-by assignment at the rate of $140.00 per week for each week so assigned. OTHER CONDITIONS OF EMPLOYMENT Section 11.0 Continuous Service Continuous service shall be defined as the uninterrupted service of an employee from the date of his/her latest appointment to the then present time. Continuous service shall be broken through death, discharge, resignation, retirement or layoffs exceeding twelve (12) months duration without the employee having been reinstated. Continuous service shall be interrupted through a leave of absence without pay exceeding ten (10) work days, layoffs and suspensions exceeding ten (10) work days. 31 Section 11.1 Reimbursement for Travel and Other Expenses Employees who are required to use their personal vehicles for City business shall be reimbursed for suer use at an appropriate rate to be determined by a schedule adopted by the City Council. Submission of a request for reimbursement must be approved by the Department Head. Exceptions to the foregoing paragraph are: City Manager, Department Heads, Service Center Manager, Recreation Supervisors, Traffic Engineer Building Official and the Public Information Officer. The pay rate of each includes an allowance for the use of their personal vehicles. However, should any of the identified persons travel in excess of two hundred miles round trip they would be eligible for reimbursement at the established rate. Section 11.1.2 Reimbursements Employees who are required to advance personal funds for the purchase of minor materials and supplies or for other approved services during the performance of or arising out of the duties assigned to the employees work shall be reimbursed for funds so expended. The Appointing Authority may prescribe such administrative rules and regulations governing the allowable kinds and amounts of such reimbursable expenditures and the methods and procedures usable to substantiate and process submitted claims. Section 11.2 ]~gglli.9~ ' Resignations are deemed accepted and employee's supervisor or Department 'Head. irrevocable once presented in writing to an Section 11.3 ~ Layoffs of employees may be made by the Appointing Authority for lack of funds, lack of work or for other similar and just cause. The order of layoff shall be that which, in the opinion of the Appointing Authority, will cause the least disruption of service to the City. Unless otherwise prevented fi.om doing so as a result of conditions or situations beyond the City's control. The City will provide a minimum of thirty (30) days notice to any employee subject to being laid off pursuant to the Rule on layoffs. Section 11.3.1 Reinstatements The names of employees affected by layoff shall be placed on a recall list for a period of two years in the reverse order of layoff and shall have the first opportunity for reinstatement. Failure to respond within ten days to a written notice of such opportunity shall cause that name to be removed fi'om the recall list. With the approval of the Appointing Authority, a permanent or probationary employee who has resigned with a good work record or an employee recalled fi'om a list resulting fi'om a layoff may be reinstated within twenty-four months of the effective date of resignation to a vacant position in the same or comparable class he/she previously occupied. Upon reinstatement the employee, for all purposes, shall be considered as though they had received an original appointment. 32 Section 11.4 S_eako. r~ Seniority shall be defined as the length of continuous service in a given classification. Seniority shall not be affected by a change in the all0cation of a position, by a change in the class specifications or by a change in the evaluation of the class of positions. Section 11.5 Training Programs It shall be the policy of the City to encourage 'employee participation in training programs which will be of benefit to the employee and the City in the better performance of his/her work and as a means of providing assistance to the employee qUalifying for promotiOnal opportunities. The Appointing Authority may prescribe suitable regulations and guidelines under which such programs may be administered. Section 11.6 Suggestion System Suggestions of employees relating to the improvement of work related matters shall be encouraged. The means of receiving, processing and implementing such suggestions as well as the method of giving appropriate recognition thereto shall be as prescribed by the Appointing Authority. Section 11.7 Hospitalization. Medical. Dental and Life Insurance Pro_re'ams It shall be the policy of the City to provide suitable group hospitalization, medical, dental, life insurance programs and income protection under which employees and their dependents may be covered. The needs of the employees shall be given due consideration. EMPLOYEE-EMPLOYER RELATIONS Section 12 Memorandum of Understandim, Rules relating to those matters of mutual interest and concern between City management and City employees which are subject to meeting and conferring in good faith shall be as mutually agreed to between the two parties and as approved by the City Council in Memoranda of Understanding. In the absence of such memoranda the rules contained herein shall apply wherever applicable. In the absence of any specific rule on any given matter the City Manager in that capacity or as Appointing Authority shall establish suitable policies by administrative regulations and orders which shall be considered as supplemental hereto unless or until amended or superseded. 33