Original Notice.

     Exempt from preproposal statement of inquiry under RCW 34.05.310(4).

     Title of Rule and Other Identifying Information: WAC 357-19-005 What is the authority of general government employers to appoint employees to positions in the classified service?, 357-19-010 What is the authority of higher education employers to appoint employees to positions in the classified service?, 357-19-015 What must employers use as the basis for appointments under the civil service rules?, 357-19-017 What is the purpose of the probationary and trial service period?, 357-19-020 When must an employee serve a probationary period?, 357-19-025 When must an employee serve a trial service period?, 357-19-030 When may an employee be required to serve a trial service period?, 357-19-040 How long is the probationary period?, 357-19-045 Can the length of a probationary period be extended?, 357-19-050 How long is a trial service period?, 357-19-060 Can the length of a trial service period be extended?, 357-19-065 Is an employee's probationary or trial service period affected by the use of leave?, 357-19-070 What happens if an employee who is serving a probationary or trial service period accepts an appointment to another permanent position with the same employer?, 357-19-075 What happens if an employee who is serving a probationary or trial service period is reassigned by the employer?, 357-19-085 Does time worked in a nonpermanent appointment count towards the probationary or trial service period for a permanent position?, 357-19-090 Must employers have a policy on probationary and trial service periods?, 357-19-095 What happens if an employee's work performance fails to meet required standards during the probationary period?, 357-19-100 What happens if an employee's work performance fails to meet the required standards during the trial service period?, 357-19-105 How much notice must an employer give when reverting an employee?, 357-19-110 Can an employee voluntarily revert during the trial service period?, 357-19-115 To which employer and position would an employee revert?, 357-19-117 Can a reverted employee be placed on a layoff list and in the general government transition pool?, 357-19-120 Can employees be granted additional reversion rights?, 357-19-135 Can an employee appeal a trial service reversion?, 357-19-140 Can an employer increase the hours of a position which is normally scheduled to work less than 40 hours a week?, 357-19-145 If an employer permanently increases the hours of a position, may an employee choose not to continue in the position?, 357-19-155 Can an employee voluntarily demote?, 357-19-160 Can an employee be elevated following a demotion?, 357-19-165 What is the difference between reassignment and transfer?, 357-19-170 Can an appointing authority reassign an employee?, 357-19-175 What are the provisions for reassigning a permanent employee to a different geographic area?, 357-19-177 How does a reassignment affect an employee's status and pay?, 357-19-180 Can an employee transfer?, 357-19-190 When is an employee appointed to a position with permanent status?, 357-19-195 If a permanent employee in a classified position accepts an appointment to an exempt position, what is the employee's right to return to a position in the classified service?, 357-19-200 When must an employee apply to return to classified service from exempt service?, 357-19-205 Upon return from exempt service, how is the employee's salary set?, 357-19-215 Does an employee who was hired directly into exempt service have any rights to a classified position or layoff list?, 357-19-220 What happens to an employee whose classified service position is converted to an exempt position?, 357-19-225 How is an incumbent, whose position is converted from exempt to classified, placed within classified service?, 357-19-230 What are the provisions for appointing participants of the police corps programs?, 357-19-235 What are in-training positions?, 357-19-240 What positions can be designated as in-training?, 357-19-245 What components must be included in an in-training plan?, 357-19-250 During an in-training plan, when does an employee advance to the next training step?, 357-19-255 How long must an employee be at each step in an in-training plan?, 357-19-260 While an employee is in an in-training appointment, what class is used to determine the employee's salary, work period designation, performance evaluation?, 357-19-265 Must the employee serve a probationary or trial service period during an in-training appointment?, 357-19-270 Does time spent in a position before the in-training appointment count towards the in-training period?, 357-19-280 If an employee transfers from one in-training position to another in-training position, how is the training period affected?, 357-19-285 What happens to an employee who fails to progress satisfactorily through an in-training plan?, 357-19-290 What are the provisions for appointments under the Intergovernmental Mobility Act (P.L. 91-648)?, 357-19-295 What are cyclic year positions?, 357-19-297 What are the notification requirements for appointing an employee to a cyclic year position?, 357-19-305 What are project positions?, 357-19-310 How are project positions filled?, 357-19-315 What are the notification requirements for appointing an employee to a project position?, 357-19-320 Must an employee appointed to a project position serve a probationary period?, 357-19-325 Must an employee with permanent status who is appointed to a project position serve a trial service period?, 357-19-330 How much notice must employees give their current employers when accepting an appointment to a project position?, 357-19-340 What return rights must an employer provide to a permanent employee who accepts an appointment to a project position?, 357-19-345 What happens to employees in project positions at the conclusion of the project?, 357-19-360 For what reasons may a general government employer make nonpermanent appointments?, 357-19-365 When is it inappropriate for a general government employer to fill a position with a nonpermanent appointment to address a short-term immediate workload peak or other short term needs?, 357-19-370 How long can a general government nonpermanent appointment last?, 357-19-373 What notification must a general government employer give a nonpermanent appointee?, 357-19-375 Can an employee receive consecutive general government nonpermanent appointments?, 357-19-377 What provisions apply to general government nonpermanent appointments?, 357-19-380 What provisions of the civil service rules apply to nonpermanent employees?, 357-19-385 Can a permanent employee accept a nonpermanent appointment?, 357-19-388 What notices must employees and their employers provide each other when an employee accepts a nonpermanent appointment?, 357-19-395 What return rights must an agency provide to a permanent employee who accepts a nonpermanent appointment?, 357-19-400 Can the agency convert a general government nonpermanent appointment to a probationary or trial service appointment?, 357-19-410 How much notice must an employer give for ending a nonpermanent appointment?, 357-19-420 What are the appeal rights of general government nonpermanent employees?, 357-19-425 How does a general government nonpermanent employee request remedial action?, 357-19-430 When may the director take remedial action for general government nonpermanent employees and what does remedial action include?, 357-19-455 What is reemployment?, 357-19-460 Is certification required to reemploy a former permanent status employee?, 357-19-465 Must employers provide reemployment services to employees separated due to disability under the provisions of WAC 357-46-160?, 357-19-470 What reemployment services does the employer provide to an individual seeking reemployment under the provisions of WAC 357-19-465?, 357-19-475 To be eligible for reemployment following disability separation under WAC 357-19-465 what must the employee do?, 357-19-480 Will employees returning from separation under WAC 357-19-465 serve a probationary period?, 357-19-505 What is the purpose of the return-to-work initiative program?, 357-19-510 Who is responsible for administering the return-to-work initiative program?, 357-19-515 Who is eligible to participate in the return-to-work initiative program?, 357-19-525 What are the employer's responsibilities for return-to-work?, 357-19-530 Who is eligible to participate in the employer's return-to-work program?, and 357-19-535 Are an employee's return-to-work opportunities limited to the agency or institution which was the employer at the time of the qualifying injury?

     Hearing Location(s): Department of Personnel, 521 Capitol Way South, Olympia, WA, on July 29, 2004, at 10:00 a.m.

     Date of Intended Adoption: July 29, 2004.

     Submit Written Comments to: Sharon Whitehead, Department of Personnel, P.O. Box 47500, FOR DOP TRACKING PURPOSES PLEASE NOTE ON SUBMITTED COMMENTS "FORMAL COMMENT," fax (360) 586-4694, by July 23, 2004.

     Assistance for Persons with Disabilities: Contact Department of Personnel by July 23, 2004, TDD (360) 753-4107 or (360) 586-8260.

     Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: These rules pertain to appointment and reemployment for state employees.

     Summary: Due to the passage of SHB 1268 the director of the Department of Personnel has rule-making authority regarding the topic of appointment and reemployment for state employees. The proposed rules implement this provision of the Personnel System Reform Act.

     Statutory Authority for Adoption: Chapter 41.06 RCW.

     Statute Being Implemented: RCW 41.06.150.

     Rule is not necessitated by federal law, federal or state court decision.

     Name of Proponent: Department of Personnel, governmental.

     Name of Agency Personnel Responsible for Drafting: Sharon Whitehead, 521 Capitol Way South, Olympia, WA, (360) 664-6348; Implementation and Enforcement: Department of Personnel.

     A cost-benefit analysis is not required under RCW 34.05.328.

June 9, 2004

E. C. Matt, Director

Department of Personnel

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     The probationary period for the campus police officer class (or successor title) must extend from the date of appointment until twelve (12) months following the successful completion of the Washington state criminal justice training commission basic law enforcement academy or twelve (12) months from the date of appointment if academy training is not required.

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     The trial service period for the campus police officer class (or successor title) must extend from the date of appointment until twelve (12) months following the successful completion of the Washington state criminal justice training commission basic law enforcement academy or twelve (12) months from the date of appointment if academy training is not required.

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     (1) Time served in the initial probationary or trial service period counts towards the probationary or trial service period of the new position if the employer determines the positions or classes to which the positions are allocated are closely related; or

     (2) The probationary or trial service period starts over if the employer determines the positions or classes to which are positions are allocated are not closely related.

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     Reviser's note: The typographical error in the above section occurred in the copy filed by the agency and appears in the Register pursuant to the requirements of RCW 34.08.040.
NEW SECTION
WAC 357-19-075   What happens if an employee who is serving a probationary or trial service period is reassigned by the employer?   If an employee is reassigned while serving a probationary or trial service period, time spent in the initial probationary or trial service period counts towards the probationary or trial service period of the position to which the employee was reassigned.

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•	Suspend the trial service period and allow the employee to resume the trial service period when the employee returns from the nonpermanent appointment; or
•	Require the trial service period to start over when the employee returns from the nonpermanent appointment.

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     (1) When a trial service period is required upon transfer or voluntary demotion as provided in WAC 357-19-030.

     (2) When a probationary or trial service period is extended, per WAC 357-19-045 and 357-19-060; and

     (3) When a probationary or trial service period is continued, per WAC 357-19-070.

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     (2) Upon voluntary reversion, the employee has the rights provided by WAC 357-19-115 through 357-19-117 with the current employer. At the discretion of the former employer, employees may voluntarily revert to the former employer and have the rights provided by WAC 357-19-115 through WAC 357-19-117 with the former employer.

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     (1) For employees reverting from trial service following a promotion or transfer, the employer must revert the employee to a vacant position, or a position filled by a nonpermanent appointee, for which the employee satisfies competencies and other position requirements and which is:

     (a) Allocated to the class the employee last held permanent status in; or

     (b) If no positions are available, allocated to a class which has the same or lower salary range maximum.

     (2) For employees reverting from trial service following a voluntary demotion, the employer must revert the employee to a vacant position, or a position filled by a nonpermanent appointee, for which the employee satisfies the competencies and other position requirements and which is allocated to a class which has the same or lower salary range maximum as the class from which the employee is reverting.

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     Reviser's note: The typographical error in the above section occurred in the copy filed by the agency and appears in the Register pursuant to the requirements of RCW 34.08.040.
NEW SECTION
WAC 357-19-170   Can an appointing authority reassign an employee?   Within an agency or higher education institution, an appointing authority may reassign an employee to a different position within the same class as long as the employee meets the competencies and other position requirements. (See WAC 357-19-175 for special provisions covering reassignments to different geographic areas.)

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•	If the reassignment is within a reasonable commute of the employee's domicile, the appointing authority may reassign the employee without the employee's agreement.
•	If the reassignment is outside of a reasonable commute of the employee's domicile and the employee does not agree to the reassignment, the employer's layoff procedure applies.

     The employer defines what is within a reasonable commute.

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     Reviser's note: The typographical error in the above section occurred in the copy filed by the agency and appears in the Register pursuant to the requirements of RCW 34.08.040.
NEW SECTION
WAC 357-19-190   When is an employee appointed to a position with permanent status?   An appointing authority must make a permanent status appointment of an employee under the following conditions:

     (1) Upon successful completion of a probationary, trial service, or transition review period;

     (2) Upon reassignment of a permanent employee who is not in trial service status;

     (3) Upon transfer, or demotion when the employee is not required to serve a trial service period;

     (4) Upon rehire from layoff or appointment to a position as a layoff option when a transition review period is not required;

     (5) Upon conversion of an exempt position to the classified service, per WAC 357-19-460, if the incumbent has been employed for at least an amount of time equal to the probationary period for the class; and

•	If the incumbent has not been employed that long, the employee must serve a probationary period. The employer may count the time spent in the position prior to conversion towards the probationary period.

     (5) Upon the director conferring permanent status to an employee under remedial action provisions.

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     Reviser's note: The typographical error in the above section occurred in the copy filed by the agency and appears in the Register pursuant to the requirements of RCW 34.08.040.
NEW SECTION
WAC 357-19-195   If a permanent employee in a classified position accepts an appointment to an exempt position, what is the employee's right to return to a position in the classified service?   A permanent employee who accepts an appointment to an exempt position has the right to return to classified service at any time as long as the employee was not terminated from an exempt position for gross misconduct or malfeasance.

     The employee's right is to a position in the highest class in which the employee previously held permanent status or to a position of similar nature and salary. A position in the highest class does not necessarily mean return to the most recent employer. The return right is to the most recent employer with which permanent status in the highest class was held.

     If upon an employee being returned to a classified position there are fewer positions than there are employees entitled to such positions, the employer's layoff procedure applies.

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•	Separation from employment in the exempt position, or
•	Separation from employment in any subsequent exempt position if there is no break in state service of more than thirty (30) calendar days between initial and subsequent exempt appointments.

     Employees who apply for return to classified service within thirty (30) calendar days must be returned to a position at the time of separation from the exempt appointment or the time of application, whichever is later.

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     (1) If the employee has permanent status and is appointed to the exempt position or to another exempt position, the employee has the right to return to the classified service at the conclusion of the exempt appointment as specified in WAC 357-19-195.

     (2) If the employee has permanent status and is not appointed to the exempt position or another exempt position, the employee has the right to assume a position in the highest class previously held, or to a position of similar nature and salary. If upon an employee being returned to a classified position there are fewer positions than there are employees entitled to such positions, the employer's layoff procedure applies.

     The employee may appeal the exemption of the position in accordance with chapter 357-52 WAC.

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     (1) If the incumbent has been continuously employed for a period of time equivalent to or greater than the probationary period established for the classified position, the incumbent will have permanent status and does not serve a probationary period. If the incumbent has been employed for less than the duration of the probationary period, WAC 357-19-020 applies.

     (2) The incumbent is not required to pass a qualifying examination.

     (3) Salary is set in accordance with WAC 357-28-210.

     (4) The incumbent is credited with unused accrued sick leave at the time of conversion and continues to accrue sick leave as provided in chapter 357-31 WAC (Leave and Holidays Chapter).

     (5) The incumbent is credited with unused accrued vacation leave at the time of conversion and accrues vacation leave at the same rate as for classified employees as provided in chapter 357-31 WAC (Leave and Holidays Chapter).

     (6) Seniority is established using the date of hire into the position that is being converted to classified service.

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     (1) The title of the goal class of the in-training plan.

     (2) The duties and responsibilities of the goal class.

     (3) The training steps and job classes that will be used to reach the goal class.

     (4) The training content for each step of the in-training plan. The training must include at least one of the following components:

•	On-the-job training (knowledge and skill developed through experience);
•	Classroom or field instruction;
•	Courses conducted by an educational institution, vocational school, or professional training organization; or
•	Written, oral, and/or practical examination(s).

     (5) The length of the training steps that are being used to reach the goal class.

     (6) The competencies that must be acquired by the employee while in training to the goal class.

     (7) The method(s) that will be used to determine if the employee has successfully completed the requirements of the in-training plan.

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     The employer determines if time spent in a position before the position was designated as an in-training position counts towards the requirements of the in-training plan.

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This table is used to determine what happens when an employee appointed to an in-training position fails to satisfactorily progress through the in-training plan.
	Type of In-Training Position:
	Class/Occupational Category: All positions in the occupational category/class series are designated as in-training positions by the employer		Individual position: The individual position is designated as an in-training position
Employee Status:
Employee in Probationary Period	->	The employee must be separated in accordance with WAC 357-46-185.	->	The employee must be separated in accordance with WAC 357-46-185.
Employee in Trial Service Period	If the employee WAS PERMANENT before the in-training appointment: -> The employee has reversion rights in accordance with WAC 357-19-115 to the class the employee held permanent status in before the in-training appointment. If the employee was NOT PERMANENT before the in-training appointment: ->The employee must be dismissed under the provisions of WAC 357-40-020.		->	The employee has reversion rights in accordance with WAC 357-19-115 to the class in which the employee was most recently permanent.
Employee achieved permanent status in job class of the current in-training step but is failing to progress to the next step	If the employee WAS PERMANENT before the in-training appointment: -> The employee has reversion rights in accordance with WAC 357-19-115 to the class the employee held permanent status in before the in-training appointment. If the employee was NOT PERMANENT before the in-training appointment: -> The employee must be dismissed under the provisions of WAC 357-40-020.		->	The employee is removed from the in-training position and has reversion rights in accordance with WAC 357-19-115 to a position, if available, in the class in which the employee currently holds permanent status.

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•	Known, recurring periods in the annual cycle when the position is not needed; or
•	Limited funding of the position.

     Cyclic year positions are permanent positions and must be filled in accordance with the rules on recruitment, assessment, and certification as provided in chapter 357-16 WAC.

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     Reviser's note: The typographical error in the above section occurred in the copy filed by the agency and appears in the Register pursuant to the requirements of RCW 34.08.040.
NEW SECTION
WAC 357-19-310   How are project positions filled?   Project positions must be filled in accordance with the rules on recruitment, assessment, and certification as provided in chapter 357-16 WAC.

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     In accordance with WAC 357-19-030, a permanent employee who voluntarily transfers or voluntarily demotes to a project position may be required by the employer to serve a trial service period.

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     When the current employer receives the employee's notice, the employer must notify the employee in writing of his/her return right at the conclusion of the appointment to the project position.

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     (1) A permanent employee is absent from the position;

     (2) The agency is recruiting to fill a vacant position with a permanent appointment;

     (3) The agency needs to address a short-term immediate workload peak or other short-term needs;

     (4) The agency is not filling a position with a permanent appointment due to the impending or actual layoff of a permanent employee(s); or

     (5) The nature of the work is sporadic and does not fit a particular pattern.

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     (2) A nonpermanent appointment for a reason specified in WAC 357-19-360 (1) through (4) must not exceed twenty-four (24) months unless the director has approved an extension of the appointment due to the continued absence of a permanent employee. An employer may choose to not count time spent in formal training programs towards the twenty-four month limit. On-the-job training is not considered a formal training program for purposes of this rule.

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     (2) The written notification must at a minimum contain the following information:

     (a) The reason for the nonpermanent appointment in accordance with WAC 357-19-360;

     (b) The hours of work and the base salary;

     (c) The anticipated short-term duration or sporadic nature of the appointment;

     (d) A statement regarding the receipt or nonreceipt of benefits. If the employee is to receive benefits, the statement shall include which benefits are to be received; and

     (e) The right to request remedial action as provided in WAC 357-19-420.

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     (1) Nonpermanent appointees must meet the skill/competency requirements of the position to which they are appointed.

     (2) Nonpermanent appointments may be filled on a noncompetitive basis which means the employer is not required to comply with the rules on recruitment, assessment, and certification as provided in chapter 357-16 WAC.

     (3) Nonpermanent appointments may be filled using the competitive process specified in chapter 357-16 WAC as long as the eligible applicant indicates a willingness to accept a nonpermanent appointment.

     (4) Agencies may underfill a position with a nonpermanent appointment.

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     When the current employer receives the employee's notice, the employee's permanent agency must notify the employee in writing of his/her return right to the agency at the conclusion of the nonpermanent appointment.

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•	the permanent employee does not return to the position or the layoff action has been implemented; and
•	the agency needs to fill the position permanently.

     The agency may change the appointment status to trial service only if the employee held permanent status prior to accepting a nonpermanent appointment.

     At the discretion of the appointing authority, time spent in the nonpermanent appointment may count towards the probationary or trial service period for the permanent position.

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     A nonpermanent appointment may be terminated immediately with pay in lieu of the one (1) work day of notice required for nonpermanent employees or the fifteen (15) calendar days' notice required for permanent employees.

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•	The employer has made an appointment that does not comply with rules on nonpermanent appointment; or
•	The duration of a nonpermanent appointment as defined in WAC 357-19-360 (1) through (4) has exceeded twenty-four months without director approval.

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•	The employer's internal layoff list or statewide layoff list for the class has no eligible candidates; and
•	The former employee satisfies the competencies and other requirements of the position to which the employee is being reemployed.

     Upon reemployment, the employee must serve a probationary period unless the employer determines otherwise.

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•	Determination of job classes and/or positions for which the former employee is qualified;
•	Assistance regarding the employment/application process;
•	Reemployment consideration in accordance with the employer's certification procedure for positions for which the individual meets the competency and other position requirements.
•	Access to training programs relevant to the job classes for which the former employee may become qualified.

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     (1) Complete and submit an application(s) for reemployment to the employer.

     (2) Meet the competencies and other requirements of the class and/or position for which applying.

     (3) Submit to the appointing authority a statement from a licensed health care provider affirming the former employee's fitness to return to work and specifying any work restrictions due to a physical, sensory, or mental disability of the individual.

     (a) If the licensed health care provider's statement provides inadequate information, the former employee will obtain the necessary clarification from the licensed health care provider or provide a release to the personnel officer/appointing authority to communicate directly with the licensed health care provider regarding the disabling condition as it relates to employment. Such information will be obtained at the former employee's expense.

     (b) The employer may require that the former employee be examined by a licensed health care provider of the employer's choice at the employer's expense.

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     Reviser's note: The typographical error in the above section occurred in the copy filed by the agency and appears in the Register pursuant to the requirements of RCW 34.08.040.
NEW SECTION
WAC 357-19-505   What is the purpose of the return-to-work initiative program?   The purpose of the program is to assist eligible general government permanent employees to return to work following an industrial injury. Eligibility requirements are specified in WAC 357-19-515.

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     (1) The employee must be a former permanent employee or a current employee of an employer who participates in the program;

     (2) The employer must approve the participation of the employee to be in the program;

     (3) The employee must be permanently unable to return to the job of injury due to the effects of the industrial injury; however, the employee must be capable of returning to some form of gainful employment;

     (4) The employee must have an open industrial insurance claim for which the employee is receiving current time loss compensation benefits; and

     (5) The department must be able to secure authorization from the department of labor and industries to bill return-to-work services against the industrial insurance claim.

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     (1) Adopt a written return-to-work policy and submit a copy to the department.

     (2) Designate an employer representative to be responsible for coordinating the employer's return-to-work program.

     (3) Provide information on the employer's return-to-work policy to employees.

     (4) Provide training of appropriate supervisors on implementation of the employer return-to-work policy, including but not limited to assessment of the appropriateness of the return-to-work job for the employee; general knowledge of available return-to-work options, resources available; and awareness that the return-to-work program expects cooperation and participation by all employers.

     (5) Coordinate participation of applicable employee assistance programs, as appropriate.

     (6) If possible, provide time-limited opportunities to employees who are in the return-to-work program.

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     (1) The employee is a permanent employee.

     (2) The employee is receiving compensation under RCW 51.32.090.

     (3) The employee has a temporary disability which makes him/her temporarily unable to return to his or her previous work, but who is capable of carrying out work of a lighter or modified nature as evidenced by a written statement from a physician or licensed mental health professional.

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