TITLE 43. TRANSPORTATION

PART 1. TEXAS DEPARTMENT OF TRANSPORTATION

CHAPTER 4. EMPLOYMENT PRACTICES

The Texas Department of Transportation (department) proposes the repeal of §§4.10 - 4.15, new §§4.10 - 4.16, concerning Job Application Procedures, and §§4.70 - 4.78, concerning Family Leave Pool Program, and amendments to §§4.22 - 4.25, concerning Employment and Education Programs.

EXPLANATION OF PROPOSED REPEAL, AMENDMENTS, AND NEW SECTIONS

The purpose of the repeal, amendments, and new sections is to respond to numerous legislative changes, to align the rules with the procedures that are currently being used, and to promote efficiencies in the department's employment practices.

New §4.10, Purpose, identifies the statutory requirements with which the department's job application procedures will comply. The new section is substantively the same as existing §4.10 with the addition of the recognition of preferences for former foster children.

New §4.11, Definition, defines "department" for this subchapter. Unused and unnecessary definitions from former §4.11 have not been included.

New §4.12, Job Postings, explains the department's job posting process to include the types of positions the department will post, the descriptive information, including military occupational specialty codes, that will be included in the department's job postings, and that the department will notify the Texas Workforce Commission when a vacant position has been filled. Government Code, §§656.002 and 656.023, amended by S. B. No. 389, Acts of the 84th Legislature, Regular Session, require state agencies to include on all employment opening forms and notices the military occupational specialty codes that correspond to the employment opening if the duties of the available position correlate with a military occupational specialty.

New §4.13, Application, requires that an applicant must complete an online application and identifies the online application systems available that an applicant may use to submit an employment application. Government Code, §656.002, amended by H. B. No. 426, Acts of the 84th Legislature, Regular Session, requires state agencies to accept applications through the Texas Workforce Commission's WorkInTexas.com website and allows state agencies to continue to accept employment applications in other ways. New §4.13 also identifies the information that must be included on an employment application and specifies when an application must be received and the minimum age of an applicant for an application to be considered.

New §4.14, Screening, lists the factors that the department considers when determining if an applicant meets the minimum job requirements.

New §4.15, Preferences, identifies employment preferences that the department will give an applicant in accordance with statutory requirements. Government Code, §657.003, amended by S. B. No. 805, Acts of the 84th Legislature, Regular Session, requires state agencies to provide a veterans' employment preference. Chapter 672, Government Code, was added by H. B. No. 1043, Acts of the 81st Legislature, Regular Session, and requires a hiring preference at state agencies for certain individuals who were in the state foster care system.

New §4.16, Medical Examination, provides that an applicant for a physically demanding position must pass a medical examination and adds a definition of physically demanding position. Labor Code, §505.054, which was amended by S. B. No. 1323, Acts of the 87th Legislature, Regular Session, no longer requires that all employees must pass a pre-employment physical examination. New §4.16 clarifies that the director of the Human Resources Division is responsible for determining which positions are physically demanding. New §4.16 also deletes the requirement that the department must designate practicing physicians to conduct the medical examinations and instead provides that the department may do so. Labor Code, §505.054, no longer requires that the department must designate practicing physicians to conduct the medical examinations.

Amendments to §4.22, College Cooperative Education Program, clarify that a student participating in the cooperative education program will be required to pass the medical examination only if the student's work assignment requires a medical examination under §4.16(a).

Amendments to §4.23, High School Cooperative Program, establish a new minimum age requirement of 16 years of age for a high school student to be eligible to participate in the high school cooperative program. The amendments also clarify that a student will be required to pass the medical examination only if the student's work assignment in the program requires a medical examination under §4.16(a).

Amendments to §4.24, College Intern Program, clarify that a student participating in the college intern program will be required to pass the medical examination only if the student's work assignment in the program requires a medical examination under §4.16(a).

Amendments to §4.25, Conditional Grant Program, correct typographical errors, remove redundancies, and update program procedures. In subsection (d) the due date for an application is changed to April 1. In subsection (g)(3) the amount for one conditional grant per academic semester is increased in response to rising costs of tuition. In subsection (j)(1) the references to freshman and sophomore years are replaced with specific college credit hours relating to repayment of a conditional grant. In subsection (j)(4) the time that a conditional grant recipient is to begin repayment of the conditional grant is changed until after the student's expected date of graduation. In subsection (j)(6) the requirement that a conditional grant recipient must adhere to the established repayment schedule as a part of the condition for the department to waive repayment of any remaining amounts owed to the department is deleted. Changes in subsection (j) expand the reasons that the department may temporarily reduce, defer, or extend repayment of grant funds on a student's submission of a formal request. The changes to §4.25 promote efficiency in the administration of the Conditional Grant Program.

New §4.70, Purpose, describes the purpose and authority for a family leave pool program for an eligible employee of the department to use for bonding and caring for the employee's children or a person over whom the employee has guardianship, or caring for an immediate family member's or the employee's serious illness, including a pandemic-related illness or complication. Government Code, Chapter 661, Subchapter A-1, which was added by H. B. No. 2063, Acts of the 87th Legislature, Regular Session, 2021, requires each state agency to create a family leave pool program.

New §4.71, Definitions, provides meaning for the words and terminology used in this subchapter.

New §4.72, Administration of the Pool, establishes the Pool Administrator's responsibilities for the administration of the family leave pool.

New §4.73, Eligibility, identifies eligibility requirements for the ability to use time contributed to the family leave pool and identifies ineligibility to use time contributed to the family leave pool.

New §4.74, Contributions, explains allowable contributions that employees and retiring employees may make to the family leave pool and clarifies that contributions are not returnable. The section authorizes the pool administrator to adjust employees' accounts and the family leave pool balances based on contributions to the family leave pool and use of leave granted under the family leave pool.

New §4.75, Requests for Withdrawals, establishes procedures for an eligible employee to apply for permission to withdraw time from the family leave pool and places limitations on the amounts that employees may withdraw from the family leave pool.

New §4.76, Decision on a Request, establishes the criteria the pool administrator must use when considering requests and the timeline in which the pool administrator must issue a determination.

New §4.77, Unused Leave, establishes the procedures for returning unused leave granted under the family leave pool program.

New §4.78, Equal Treatment, establishes that use of leave granted under the family leave pool program is equivalent to an employee's using sick leave earned by the employee.

FISCAL NOTE

Stephen Stewart, Chief Financial Officer, has determined, in accordance with Government Code, §2001.024(a)(4), that as a result of enforcing or administering the rules for each of the first five years in which the proposed rules are in effect, there will be no fiscal implications for state or local governments as a result of enforcing or administering the rules.

LOCAL EMPLOYMENT IMPACT STATEMENT

David McMillan, Director of Human Resources, has determined that there will be no significant impact on local economies or overall employment as a result of enforcing or administering the proposed rules and therefore, a local employment impact statement is not required under Government Code, §2001.022.

PUBLIC BENEFIT

David McMillan has determined, as required by Government Code, §2001.024(a)(5), that for each year of the first five years in which the proposed rules are in effect, the public benefit anticipated as a result of enforcing or administering the rules will be realized efficiencies in the department's employment practices.

COSTS ON REGULATED PERSONS

David McMillan has also determined, as required by Government Code, §2001.024(a)(5), that for each year of that period there are no anticipated economic costs for persons, including a state agency, special district, or local government, required to comply with the proposed rules and therefore, Government Code, §2001.0045, does not apply to this rulemaking.

ECONOMIC IMPACT STATEMENT AND REGULATORY FLEXIBILITY ANALYSIS

There will be no adverse economic effect on small businesses, micro-businesses, or rural communities, as defined by Government Code, §2006.001, and therefore, an economic impact statement and regulatory flexibility analysis are not required under Government Code, §2006.002.

GOVERNMENT GROWTH IMPACT STATEMENT

David McMillan has considered the requirements of Government Code, §2001.0221 and anticipates that the proposed rules will have no effect on government growth. He expects that during the first five years that the rule would be in effect:

(1) it would not create or eliminate a government program;

(2) its implementation would not require the creation of new employee positions or the elimination of existing employee positions;

(3) its implementation would not require an increase or decrease in future legislative appropriations to the agency;

(4) it would not require an increase or decrease in fees paid to the agency;

(5) it would not create a new regulation;

(6) it would not expand, limit, or repeal an existing regulation;

(7) it would not increase or decrease the number of individuals subject to its applicability; and

(8) it would not positively or adversely affect this state's economy.

TAKINGS IMPACT ASSESSMENT

David McMillan has determined that a written takings impact assessment is not required under Government Code, §2007.043

SUBMITTAL OF COMMENTS

Written comments on the repeal of §§4.10 - 4.15, new §§4.10 - 4.16 and §§4.70 - 4.78, and amendments to §§4.22 - 4.25 may be submitted to Rule Comments, General Counsel Division, Texas Department of Transportation, 125 East 11th Street, Austin, Texas 78701-2483 or to RuleComments@txdot.gov with the subject line "Employment Practices." The deadline for receipt of comments is 5:00 p.m. on June 13, 2022. In accordance with Transportation Code, §201.811(a)(5), a person who submits comments must disclose, in writing with the comments, whether the person does business with the department, may benefit monetarily from the proposed amendments, or is an employee of the department.

SUBCHAPTER B. JOB APPLICATION PROCEDURES

43 TAC §§4.10 - 4.15

STATUTORY AUTHORITY

The repeals are proposed under Transportation Code, §201.101, which provides the Texas Transportation Commission with the authority to establish rules for the conduct of the work of the department, and more specifically, Labor Code, §505.051, which provides the department with the authority to adopt rules to effectively administer Labor Code, Chapter 505; Education Code, §56.142, which requires the department to establish and administer a conditional grant program; and Government Code, §661.022, which provides the department with the authority to adopt rules to effectively administer a family leave pool program.

CROSS REFERENCE TO STATUTES IMPLEMENTED BY THIS RULEMAKING

Education Code, §§56.141-56.145; Government Code, §§656.002, 656.023, and 657.003, Chapter 661, Subchapter A-1, and §§672.002 and 672.005; and Labor Code, §505.054.

§4.10.Purpose.

§4.11.Definitions.

§4.12.Job Vacancy Notices.

§4.13.Notification.

§4.14.Application.

§4.15.Medical Examination.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on April 20, 2022.

TRD-202201520

Becky Blewett

Deputy General Counsel

Texas Department of Transportation

Earliest possible date of adoption: June 5, 2022

For further information, please call: (512) 463-8630


SUBCHAPTER B. JOB APPLICATION PROCEDURES

43 TAC §§4.10 - 4.16

STATUTORY AUTHORITY

The new sections are proposed under Transportation Code, §201.101, which provides the Texas Transportation Commission (commission) with the authority to establish rules for the conduct of the work of the department.

CROSS REFERENCE TO STATUTE

None.

§4.10.Purpose.

It is the policy and practice of the Texas Transportation Commission and the Texas Department of Transportation to ensure and promote internal and external equal employment opportunity and to use affirmative action to achieve these ends. In keeping with this policy and with the requirements of Transportation Code, §§201.401-201.404 and Government Code, Chapters 656, 657, and 672, this subchapter prescribes the procedures for notifying potential applicants of vacant positions within the department, making applications for employment, and obtaining employment preferences for veterans or former foster children.

§4.11.Definition.

In this subchapter, "department" means the Texas Department of Transportation.

§4.12.Job Postings.

(a) The department will post all vacant positions in salary groups B17 and above for which the public will be considered on the department's website and send the information in those postings to the Texas Workforce Commission.

(b) The posting will include:

(1) job identification number;

(2) department and state code and title;

(3) salary group and salary;

(4) work location;

(5) travel requirements;

(6) a link to the website of the State Auditor's Office containing the military occupational specialty codes identified and reported under Government Code, §654.0375;

(7) general description and job duties;

(8) education, work experience, competencies, and licenses and certifications required of the job;

(9) the position's full-time or part-time and regular or temporary designations;

(10) conditions of employment or remarks, including application procedures and special requirements;

(11) job posting open date; and

(12) job posting closing date and time or indication that the position is open until filled.

(c) The department will notify the Texas Workforce Commission when a vacant position described by subsection (a) of this section has been filled.

§4.13.Application.

(a) To be considered for a position posted under §4.12 of this subchapter (relating to Job Postings), an applicant must submit a completed online state of Texas application through the Texas Workforce Commission's WorkinTexas website or an application or resume through the department's online application system that includes the applicant's work experience, education, and all necessary information or documentation regarding the applicant's qualifications and competencies that pertain to the requirements of the job.

(b) An application will not be accepted if the applicant will not be 16 years of age or older on date of hire.

(c) Applications must be received before the date and time included in the job posting under §4.12(b)(12) of this subchapter.

§4.14.Screening.

The department's qualification screening process considers an applicant's education, work experience, and licenses and certifications to ensure that the applicant meets the minimum job requirements.

§4.15.Preferences.

The department will give an applicant employment preference over other applicants who do not have greater qualifications for the same position, if the applicant:

(1) qualifies for employment preference under Government Code, Chapter 657, Veteran's Employment Preferences; or

(2) is entitled to an employment preference under Government Code, Chapter 672, Employment Preference For Former Foster Children.

§4.16.Medical Examination.

(a) After a conditional job offer is made and accepted, the department will require that an applicant for a physically demanding position pass a medical examination to verify that the applicant is able to perform the essential functions of the job, with or without reasonable accommodation. For purposes of this subsection, "physically demanding position" means a full-time, part-time, temporary, project, or seasonal position that the director of the Human Resources Division has determined requires the performance of one or more essential functions that involve a high level and long duration of physical exertion.

(b) The department may designate practicing physicians to make the physical examination of applicants.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on April 20, 2022.

TRD-202201521

Becky Blewett

Deputy General Counsel

Texas Department of Transportation

Earliest possible date of adoption: June 5, 2022

For further information, please call: (512) 463-8630


SUBCHAPTER C. EMPLOYMENT AND EDUCATION PROGRAMS

43 TAC §§4.22 - 4.25

STATUTORY AUTHORITY

The amendments are proposed under Transportation Code, §201.101, which provides the Texas Transportation Commission (commission) with the authority to establish rules for the conduct of the work of the department.

CROSS REFERENCE TO STATUTE

None.

§4.22.College Cooperative Education Program.

(a) Purpose. The College Cooperative Education Program is designed to combine collegiate classroom education with full-time practical employment experience through alternating periods of work and study.

(b) Institution eligibility. In order to be eligible to participate in the cooperative education program, a higher education institution must:

(1) be located in the United States;

(2) be an institution with a college or graduate, technical, trade, vocational, or business school curriculum that is accredited by an association of colleges and schools, or licensed by a state agency;

(3) have the authority to administer requirements, standards, and credits necessary to award degrees, diplomas, and certificates; and

(4) have a cooperative education program.

(c) Student eligibility. In order to be eligible to participate in the cooperative education program, a student must:

(1) be at least 17 years of age;

(2) be a United States citizen, lawful permanent resident alien, or a non-citizen with proof of eligibility to work in the United States;

(3) be enrolled in an eligible institution's cooperative education program, other than by correspondence;

(4) have attended that institution for at least one semester;

(5) have passed at least 28 semester hours toward formal degree requirements in a master or doctorate degree program, a baccalaureate degree program, an associate degree program of no less that one academic year, or an undergraduate certificate or diploma program of not less than one academic year; and

(6) have an overall institutional grade point average of at least 2.5 on a four-point scale.

(d) Application. To apply for the cooperative education program, the student must:

(1) attend an orientation at the institution concerning the cooperative education program; and

(2) submit a completed application to the institution on a form prescribed by the department.

(e) Interview. If the institution's cooperative office refers a student to the department, the student must interview with the department.

(f) Selection criteria. The department's selection is based upon the student's:

(1) current enrollment and participation in a field of study related to the assigned work;

(2) skill, knowledge, and ability as related to the job description;

(3) grade point average;

(4) relevant previous work experience; and

(5) availability to work for three successive alternating periods of employment between three successive alternating periods of study.

(g) Employment eligibility. If selected, the student must:

(1) complete a Form I-9 Employment Verification;

(2) if the student's work assignment in the cooperative education program will be to a position for which a medical examination is required under §4.16(a) of this chapter (relating to Medical Examination), pass the medical examination [a physical exam]; and

(3) if the cooperative employment requires driving, pass a driver's record check.

(h) Role of eligible institution. The institution will:

(1) provide an orientation briefing which will include application instructions;

(2) screen and refer the student to the department based on the criteria in the job description;

(3) schedule the student's initial interview with the department;

(4) forward the student's application, degree plan, and transcript to the department;

(5) enter into a written cooperative education agreement with the department;

(6) visit the department as requested; and

(7) review supervisor reports and evaluations.

(i) Role of department. To implement this program, the department will:

(1) provide the eligible institution with a job description;

(2) interview and select the student;

(3) enter into a written cooperative agreement with the institution;

(4) determine the work assignment;

(5) consider the cooperative student eligible for the same benefits and training as a full-time employee;

(6) retain the college cooperative student for three successive alternating periods of employment between three successive alternating periods of study as long as the student's performance is satisfactory; and

(7) evaluate the college cooperative student as provided in subsection (l) of this section.

(j) Role of the college cooperative student. The college cooperative student must:

(1) abide by the program's rules and the department's policies and procedures;

(2) adhere to the established work schedule;

(3) notify the institution's cooperative education office and the department of any changes in academic status;

(4) meet the academic and conduct standards set forth by the institution;

(5) maintain at least an overall grade point average of at least 2.5 on a four-point scale during the cooperative education period;

(6) meet the conduct standards set forth by the department; and

(7) notify his or her department supervisor in writing if the overall job assignment is significantly incompatible with the academic degree.

(k) Duration. A college cooperative student is eligible to work as a regular full-time employee during alternating academic semesters or quarters. A college cooperative student must apply separately to participate in the department's summer program as a regular employee.

(l) Evaluation. The department will evaluate the performance of the college cooperative student at the end of work semester or quarter by:

(1) using the department's student cooperative program performance evaluation;

(2) discussing the evaluation with the college cooperative student;

(3) submitting the evaluation to the institution for inclusion in the institution records; and

(4) conducting a student exit questionnaire to assess the overall education experience.

§4.23.High School Cooperative Education Program.

(a) Purpose. The High School Cooperative Education Program is designed to combine high school classroom education with part-time practical employment experience in office and industrial arts environments.

(b) High school eligibility. In order to be eligible to participate in the HSCEP, a high school must:

(1) be located in Texas; and

(2) have a cooperative education program.

(c) Student eligibility. In order to be eligible to participate in the HSCEP, a high school student must be:

(1) at least 16 [17] years of age;

(2) attending an eligible high school; and

(3) working towards employment as an accounting clerk, business data entry operator, clerk-typist, file clerk (records management), general office clerk, information communications clerk, insurance clerk, receptionist, word processing operator, or industrial equipment operators.

(d) Application. To apply for the HSCEP, the high school student must submit a completed application to the high school on a form prescribed by the department.

(e) Interview. If the high school's cooperative office refers a student to the department, the student must interview with the department.

(f) Selection criteria. The department selection is based upon the student's:

(1) current enrollment and participation in a field of study related to the assigned work;

(2) skill, knowledge, and ability as related to the job description;

(3) relevant previous work experience; and

(4) grade point average.

(g) Employment eligibility. If selected, the student must:

(1) complete a Form I-9 Employment Verification; and

(2) if the student's work assignment in the cooperative education program will be to a position for which a medical examination is required under §4.16(a) of this chapter (relating to Medical Examination), pass the medical examination [a physical exam].

(h) Role of eligible high school. The high school will:

(1) screen and refer the student to the department based upon the criteria in the job description;

(2) forward the high school student's application to the department;

(3) schedule the high school student's interview with the department;

(4) provide the department with the independent school district's approved cooperative training plan;

(5) visit each student's workplace station at least once during a grading period; and

(6) provide the department with the independent school district's evaluation form.

(i) Role of department. To implement this program, the department will:

(1) provide the high school with a job description, general information brochures about the department, a copy of the HSCEP procedure and employment applications;

(2) interview and select the HSCEP student;

(3) enter into a cooperative training plan;

(4) determine the work assignment according to the department's functional classification system;

(5) consider the HSCEP student eligible for the same benefits as a part-time employee; and

(6) evaluate the student as provided for in subsection (l) of this section.

(j) Role of HSCEP student. The student must:

(1) sign a cooperative education program standards form;

(2) abide by the program's rules and the department's policies and procedures;

(3) adhere to the established work schedule;

(4) notify the high school's cooperative education office and the department of any changes in academic status;

(5) meet the academic and conduct standards set forth by the high school; and

(6) meet the work performance and conduct standards set forth by the high school and the department.

(k) Duration. A HSCEP student is eligible to work as a regular part-time employee (15 to 25 hours a week) during the academic semesters. A cooperative high school student must apply separately to participate in the department's summer program as a regular employee.

(l) Evaluation. The department will evaluate the HSCEP student every six weeks by:

(1) using the evaluation form prescribed by the student's independent school district; and

(2) submitting the evaluation to the high school every six weeks.

§4.24.College Intern Program.

(a) Purpose. The college intern program is designed to furnish a college student with full-time practical employment.

(b) Institution eligibility. In order to be eligible to participate in the intern program, a higher education institution must:

(1) be located in the United States;

(2) be an institution with a college or graduate, technical, trade, vocational, or business school curriculum that is accredited by an association of colleges and schools, or licensed by a state agency; and

(3) have the authority to administer requirements, standards, and credits necessary to award degrees, diplomas, and certificates.

(c) Student eligibility. In order to be eligible to participate in the intern program, a student must:

(1) be at least 17 years of age;

(2) be a United States citizen, lawful permanent resident alien, or a non-citizen with proof of eligibility to work in the United States;

(3) be enrolled in an eligible institution's intern program, other than by correspondence;

(4) have attended that institution for at least one semester;

(5) have passed at least 28 semester hours toward formal degree requirements in a master or doctorate degree program, a baccalaureate degree program, an associate degree program of no less that one academic year, or an undergraduate certificate or diploma program of not less than one academic year;

(6) have an overall institutional grade point average of at least 2.5 on a four-point scale if an undergraduate student; and

(7) have an overall institutional grade point average of 3.0 on a four-point scale if a graduate student.

(d) Application. To apply for the intern program, the student must submit a completed application to the institution on a form prescribed by the department.

(e) Interview. If the institution's placement office or student advisor refers a student to the department, the student must interview with the department.

(f) Selection criteria. The department selection is based upon the student's:

(1) current enrollment and participation in a field of study related to the assigned work;

(2) skill, knowledge, and ability as related to the job description;

(3) grade point average; and

(4) relevant previous work experience.

(g) Employment eligibility. If selected, the student must:

(1) complete a Form I-9 Employment Verification;

(2) if the student's work assignment in the college intern program will be to a position for which a medical examination is required under §4.16(a) of this chapter (relating to Medical Examination), pass the medical examination [a physical exam]; and

(3) if the internship requires driving, pass a driver's record check.

(h) Role of eligible institution. The institution:

(1) may provide an orientation briefing to prospective interns which will include application instructions;

(2) may screen and refer the student to the department based on the criteria in the job description;

(3) may schedule the student's initial interview with the department;

(4) will forward the student's application, degree plan, and transcript to the department;

(5) may visit the department as requested; and

(6) will review supervisor reports and evaluations.

(i) Role of department. To implement this program, the department will:

(1) provide the institution with a job description;

(2) interview and select the student;

(3) determine the work assignment;

(4) consider the intern eligible for the same benefits and training as a full-time employee; and

(5) evaluate the intern as provided in subsection (l) of this section.

(j) Role of the intern. The intern must:

(1) abide by the program's rules and the department's policies and procedures;

(2) adhere to the established work schedule;

(3) notify the institution's department chair and the department of any changes in academic status;

(4) meet the academic and conduct standards set forth by the institution;

(5) maintain an overall grade point average of at least 2.5 on a four-point scale if an undergraduate student;

(6) maintain an overall grade point average of at least 3.0 on a four-point scale if a graduate student;

(7) meet the conduct standards set forth by the department; and

(8) notify his or her department supervisor in writing if the overall job assignment is significantly incompatible with the academic degree.

(k) Duration. An intern is eligible to work as a regular full-time employee during three months of the summer or up to five months during the semester. The intern must apply separately to extend employment beyond that period in accordance with the needs of the department.

(l) Evaluation. The department will evaluate the performance of the intern at the end of the work tour by:

(1) using the department's student performance evaluation;

(2) discussing the evaluation with the intern;

(3) providing a copy of the evaluation to the institution; and

(4) conducting a student exit questionnaire to assess the overall education experience.

§4.25.Conditional Grant Program.

(a) Purpose. This section establishes procedures for the administration of a conditional grant program that will provide financial assistance to eligible economically disadvantaged students who intend to work for the department in civil engineering or any other profession for which the department determines there is a critical need. Authority for the creation of the conditional grant program is contained in Education Code, Chapter 56, Subchapter I.

(b) Program. Upon determination by the executive director or the director's designee, the department may provide financial assistance to eligible students who:

(1) declare an intent to seek a baccalaureate degree from an institution in the State of Texas in a field of study that satisfies the department's minimum education requirement for an eligible profession;

(2) intend to work for the department for the two academic years immediately following the date of the student's receipt of an eligible degree from an institution in the State of Texas; and

(3) exhibit a high level of academic performance.

(c) Eligibility.

(1) Initial eligibility. To be initially eligible for a conditional grant, a student must:

(A) complete and file with the department evidence of household income and, on forms prescribed by the department, a conditional grant application and a declaration of intent to become a member of an eligible profession and work for the department for the two academic years immediately following the date of the student's receipt of an eligible degree;

(B) enroll in an institution;

(C) be a Texas resident as defined by the Texas Higher Education Coordinating Board; [and]

(D) be an economically disadvantaged student; and

(E) have complied with any other requirements adopted by the department.

(2) Maintaining eligibility. In order to maintain eligibility, a student must be enrolled each semester in an institution in a course of instruction leading toward a degree in an eligible profession and, except as provided in paragraph (4) of this subsection, must:

(A) maintain an overall institutional grade point average of at least 2.5 on a four-point scale; and

(B) receive credit for not fewer than 12 hours each semester toward the student's degree program.

(3) Exception.

(A) If, during not more than one semester, a student fails to meet the grade point or credit hour requirements of this subsection, he or she will continue to maintain eligibility.

(B) Subparagraph (A) of this paragraph does not apply to a freshman student, unless the director of the department's Human Resources Division or designee determines that the student has a reasonable opportunity to comply with the requirements of Subparagraph (C) of this paragraph. The director will base his or her decision on an overall assessment of the student's freshman academic record.

(C) Students who fail to meet the grade point requirement, but are allowed to maintain eligibility under this paragraph, must receive credit for not fewer than 12 hours each semester and attain a semester grade point average of 2.5 during all semesters thereafter until the student graduates.

(4) Hardship waiver. The department may waive, upon approval of the executive director, the requirement that a student receive credit for not fewer than 12 hours each semester if a student demonstrates hardship. Hardship may involve serious illness, family emergency, or other extraordinary circumstances beyond the control of the student.

(d) Application.

(1) To apply for a conditional grant, a student must submit to the department:

(A) a completed application in a form prescribed by the department; and

(B) a declaration of intent.

(2) The application will require information and documentation relating to residency status, secondary school performance or college performance, the current or intended enrollment institution, the sworn statement as required by subsection (k) of this section, and such other information the department deems necessary to determine eligibility pursuant to subsection (c) of this section.

(3) An application must be submitted by April [March] 1st of each year for the subsequent fall and spring semesters admission.

(e) Selection.

(1) Academics. The department will rank applicants according to the following selection criteria:

(A) secondary school or college grade point average;

(B) SAT or ACT score;

(C) honors and awards from, and participation in technical or academic organizations such as Texas Prefreshman Engineering Program, Texas Alliance for Minorities in Engineering, National Honor Society, Debate Team, or Dean's List;

(D) vocational education;

(E) work experience; and

(F) whether the applicant is the first generation of the applicant's family to attend or graduate from an undergraduate program or from a graduate or professional program.

(2) Financial need. Applicants that meet a minimum academic threshold using the criteria in paragraph (1) of this subsection will be ranked giving highest priority to students who demonstrate the greatest financial need as measured by the Federal Poverty Guidelines.

(f) Grant agreement.

(1) The department will send written notice to applicants selected to receive a grant informing them of the amount to be awarded for the conditional grant as certified by their educational institution.

(2) Each selected student will be required to execute a grant agreement prior to receiving a conditional grant. The grant agreement will be in a form prescribed by the department and will set forth the terms and conditions of the grant, including, but not limited to, the amount of the grant and the requirements of continued eligibility pursuant to subsection (c) of this section.

(g) Conditional grant.

(1) The amount of a conditional grant is the sum of:

(A) the amount of tuition and fees for the student, as certified by the institution; and

(B) a stipend based upon financial need as provided by subsection (h) [(g)] of this section.

(2) Each semester the department will distribute a conditional grant for each eligible student on receipt of an enrollment report and certification of the amount of tuition, fees, and stipend (if any) for the student from the institution.

(3) The total amount of any one conditional grant may not exceed the certified amount of tuition and fees for the student and a stipend for each whole calendar month in an amount determined by the department, but may not exceed $4,000 [$3,000] per academic semester based on financial need.

(4) If the amount appropriated to the department for conditional grants is less than the estimated amount of all unpaid conditional grants, the department will proportionally reduce each unpaid conditional grant.

(h) Stipend.

(1) A student desiring to receive a stipend must:

(A) sign a financial information release statement; and

(B) complete the required financial need forms at the institution.

(2) The department will award a stipend to the student upon certification by the institution of the student's certified financial need.

(3) Costs of room and board will be included in the stipend amount[; however, the grant may not exceed $3,000 an amount per academic semester].

(i) Default. The department will declare a student to be in default of the grant agreement and will require the student to repay all conditional grant funds received from the department if the student:

(1) withdraws from the institution; or

(2) fails to comply with one or more requirements of the grant agreement.

(j) Repayment.

(1) If a student fails to meet the requirements of the program or chooses to leave the program before [prior to] the student's completion of at least 30 college credit hours [college sophomore year], the department will terminate the agreement and the student will not be required to repay any expended funds. If the student [meets all agreement requirements, during the freshman year and continues in the program, but at any time later during the remaining academic semesters] is declared to be in default of the program agreement after the student's completion of at least 30 college credit hours, the student is required to repay [any and] all funds received from the department[, including funds expended for the freshman year].

(2) If a student is required to repay funds pursuant to subsection (i) [(h)] of this section, the department will establish a repayment schedule of:

(A) 120 equal monthly installments for students who received grants for four years or more;

(B) 96 equal monthly installments for students who received grants for more than three years, but less than four years;

(C) 72 equal monthly installments for students who received grants for more than two years, but less than three years; or

(D) 48 equal monthly installments for students who received grants for less than two years.

(3) The installment is based on the amount owed the department and must be paid each month. Repayments may be made in fewer than the required number of installments.

(4) A student will not be required to begin payments until after the student's expected date of graduation as determined on the date of [four months subsequent to] the determination of default.

(5) A student who completes an eligible degree and does not work for the department for two academic years immediately following the date of the student's receipt of an eligible degree from a Texas institution will be required to:

(A) begin payments three months subsequent to the determination of default; and

(B) pay a minimum monthly installment of $200.

(6) The department will waive repayment of any remaining amounts for a student who defaults and [makes the required payments according to the established repayment schedule if the student] graduates with an eligible degree and honors the original agreement to work for the department in an eligible profession for at least two academic years commencing immediately upon graduation. [The student must adhere to the repayment schedule until the student begins employment with the department.]

(7) The department may temporarily reduce or defer the required payments or [and/or] extend the prescribed repayment period, upon approval of the executive director, if a student submits a formal request, demonstrates his or her inability to pay due to catastrophic illness or family emergency, and follows all conditional grant requirements during the deferment period. Any reduction, deferral, or extension will not relieve a student of his or her responsibility to repay all funds.

(8) Credit bureau notification. The department will notify the appropriate credit bureaus or agencies if a student fails to repay the department or fails to adhere to the terms of the conditional grant agreement.

(k) Child support statement.

(1) In accordance with the Family Code, §231.006, a child support obligor who is 30 or more days delinquent in paying child support is not eligible to receive funds under this subchapter.

(2) A student shall provide along with the application submitted as required by subsection (d) [(c)] of this section a signed, sworn statement, in a form and manner prescribed by the department, affirming that the student is not 30 or more days delinquent in providing child support under a court order or a written repayment agreement.

(3) A student who is ineligible under this section shall remain ineligible to receive funds under this subchapter until:

(A) all arrearages have been paid; or

(B) the student is in compliance with a written repayment agreement or court order as to any existing delinquency.

(4) A student who is found to have submitted a falsely sworn statement under this section shall, upon demand, remit to the department all funds received while ineligible under paragraph (1) of this subsection.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on April 20, 2022.

TRD-202201522

Becky Blewett

Deputy General Counsel

Texas Department of Transportation

Earliest possible date of adoption: June 5, 2022

For further information, please call: (512) 463-8630


SUBCHAPTER G. FAMILY LEAVE POOL PROGRAM

43 TAC §§4.70 - 4.78

STATUTORY AUTHORITY

The new sections are proposed under Transportation Code, §201.101, which provides the Texas Transportation Commission (commission) with the authority to establish rules for the conduct of the work of the department.

CROSS REFERENCE TO STATUTE

None.

§4.70.Purpose.

The purpose of the family leave pool program is to make leave available to an eligible employee who has exhausted all eligible leave for the purposes of bonding with and caring for the employee's children or a person over whom the employee has guardianship or caring for an immediate family member's or the employee's serious illness. Authority for the creation of the family leave pool program is contained in Government Code, Chapter 661, Subchapter A-1, State Employee Family Leave Pool.

§4.71.Definitions.

The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise.

(1) Department--The Texas Department of Transportation.

(2) Employee--A person, other than the executive director, who is employed by the department.

(3) Health care provider--A licensed physician.

(4) Immediate family member--A person who lives in the same household as an employee and who is related to the employee by kinship, adoption, or marriage or is a foster child of the employee, a parent of the employee, or any person 18 years of age or older requiring guardianship for whom the employee is appointed the guardian.

(5) Pool administrator--The Director of the Human Resources Division or the employee designated by the director to administer the department's family leave pool program.

(6) Serious illness--An illness, injury, impairment, or physical or mental condition that requires continuing in-home care under the direction the services of a health care provider.

(7) Sick leave--Paid absence from work because of illness, injury, or pregnancy.

§4.72.Administration of the Pool.

The pool administrator is responsible for:

(1) developing and implementing policies, operating procedures, and forms for the administration of this subchapter; and

(2) issuing interpretations and clarifications relating to the family leave pool program.

§4.73.Eligibility.

(a) An employee may participate in the family leave pool program regardless of whether the employee has previously contributed to the family leave pool.

(b) An employee is eligible to use time contributed to the family leave pool if the employee has exhausted all eligible compensatory, discretionary, sick, and vacation leave because of:

(1) the birth of a child;

(2) the placement of a foster child or adoption of a child under 18 years of age;

(3) the placement of any person 18 years of age or older requiring guardianship;

(4) a serious illness to an immediate family member or the employee, including a pandemic-related illness;

(5) an extenuating circumstance created by an ongoing pandemic, including providing essential care to an immediate family member; or

(6) a previous contribution of time to the pool.

(c) An employee is not eligible to use time contributed to the family leave pool if the employee has been formally disciplined for abuse of leave during the 12-month period preceding the date on which the employee requests withdrawal from the pool.

§4.74.Contributions.

(a) An employee may contribute one or more days of the employee's accrued sick or vacation leave to the family leave pool. A retiring employee may designate the number of the retiring employee's accrued sick or vacation leave hours to be donated to the family leave pool.

(b) After the pool administrator approves an employee's contribution, the pool administrator will deduct from the employee's account the contributed amount and credit that amount to the family leave pool. Deducted amounts will not be returned to the employee's account.

§4.75.Requests for Withdrawals.

(a) An eligible employee may apply for permission to withdraw time from the family leave pool by completing a form designated by the department and submitting to the pool administrator the completed form and:

(1) a written statement from the health care provider who is treating the employee or the employee's immediate family member if the permission being sought is due to a serious illness, including a pandemic-related illness; or

(2) applicable documentation, including an essential caregiver designation, proof of a school or daycare closure, or other appropriate documentation if the permission being sought is due to extenuating circumstances created by an ongoing pandemic.

(b) Subject to subsection (c) of this section, an employee may not withdraw time from the family leave pool in an amount that is more than 720 hours or one-third of the pool balance at the time of the approval of the request, whichever is less.

(c) When the pool balance is below 7,200 hours, an employee may not withdraw from the family leave pool more than the sum of 340 hours plus the hours of unpaid leave that, as a result of the cause for which the time is requested, was incurred by the employee before the request is approved.

§4.76.Decision on a Request.

(a) The pool administrator will consider requests in the order in which they are received and will determine an employee's eligibility and approve or deny the request within five business days after the date on which a completed request form is received.

(b) If the pool administrator approves the request, the pool administrator will determine the amount of time that an employee may withdraw from the family leave pool based on:

(1) the number of hours requested by the employee;

(2) the documentation submitted in support of the requested leave;

(3) the date and time the employee exhausted or will exhaust all eligible compensatory, discretionary, sick, and vacation leave; and

(4) the limitations on the amount of withdrawals from the family leave pool provided by §4.75 of this subchapter (relating to Requests for Withdrawals).

§4.77.Unused Leave.

(a) Unused leave granted under the family leave pool program shall be returned to the pool when the need for that leave ceases.

(b) The pool administrator may require that the unused leave be returned to the family leave pool if the employee:

(1) fails to provide required documentation in accordance with the applicable department policies and procedures;

(2) submits false information; or

(3) abuses the use of family leave pool hours.

(c) The estate of a deceased employee is not entitled to payment for unused leave withdrawn by the employee from the family leave pool.

§4.78.Equal Treatment.

An employee absent while using time withdrawn from the family leave pool shall be treated as if the employee is absent on earned sick leave.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on April 20, 2022.

TRD-202201523

Becky Blewett

Deputy General Counsel

Texas Department of Transportation

Earliest possible date of adoption: June 5, 2022

For further information, please call: (512) 463-8630