WSR 05-01-246

PROPOSED RULES

DEPARTMENT OF PERSONNEL


[ Filed December 22, 2004, 11:42 a.m. ]

     Original Notice.

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

     Title of Rule and Other Identifying Information: WAC 357-31-460 For what purposes must parental leave be granted?, 357-31-465 Who qualifies for parental leave?, 357-31-470 How and when can an employee request to be off work on parental leave?, 357-31-475 How long can an employee request to be off work for parental leave?, 357-31-480 Is parental leave in addition to any leave for sickness or temporary disability because of pregnancy and/or childbirth?, 357-31-485 How and when must an employer respond to an employee's request for parental leave?, 357-31-490 Will time off for parental leave be paid or unpaid?, 357-31-495 Will time off for parental leave be designated under the Family and Medical Leave Act?, 357-31-500 When must disability leave due to pregnancy and/or childbirth be granted?, 357-31-505 How does an employee request disability leave due to pregnancy and/or childbirth?, 357-31-510 Is the employee required to provide the employer with medical certification during disability leave due to pregnancy and/or childbirth?, 357-31-515 Will time off during the period of disability leave due to pregnancy and/or childbirth be paid?, 357-31-520 How does the Family and Medical Leave Act of 1993 and the Family Care Law interact with the civil service rules?, 357-31-525 What is an employee entitled to under the Family and Medical Leave Act of 1993?, 357-31-530 Under the Family and Medical Leave Act of 1993, how is an eligible employee defined?, 357-31-535 Who designates absences which meet the criteria of the Family and Medical Leave Act?, 357-31-540 Who chooses if an employee will use paid leave or leave without pay for absences granted under the Family and Medical Leave Act?, 357-31-545 Under the Family and Medical Leave Act, can an employee request an intermittent or reduced schedule?, 357-31-550 When an employee returns from an absence designated as FMLA, what position will the employee return to?, 357-31-555 Must employers continue health insurance benefits when an employee is on leave designated as FMLA?, 357-31-560 Must the employer have a Family and Medical Leave policy?, and 357-31-565 May employers grant paid leave for purposes of recognition?

     Hearing Location(s): Department of Personnel, 600 South Franklin, Olympia, WA, on January 26, 2005, at 2:00 p.m.

     Date of Intended Adoption: January 26, 2005.

     Submit Written Comments to: Sharon Whitehead, Department of Personnel, P.O. Box 47500, fax (360) 586-4694, by January 20, 2005. FOR DOP TRACKING PURPOSES PLEASE NOTE ON SUBMITTED COMMENTS "FORMAL COMMENT."

     Assistance for Persons with Disabilities: Contact Department of Personnel by January 20, 2005, TTY (360) 753-4107 or (360) 586-8260.

     Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: The proposed rules address parental leave, leave under the Family and Medical Leave Act and recognition leave.

     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.

     Agency Comments or Recommendations, if any, as to Statutory Language, Implementation, Enforcement, and Fiscal Matters: Due to the passage of SHB 1268 the director of the Department of Personnel has rule-making authority regarding leave for state employees. The proposed rules implement this provision of the Personnel System Reform Act.

     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.

     No small business economic impact statement has been prepared under chapter 19.85 RCW. Not required.

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

December 22, 2004

E. C. Matt

Director


NEW SECTION
WAC 357-31-460   For what purposes must parental leave be granted?   (1) Employers must grant parental leave to employees for purposes of:

     (a) The birth and care of a newborn child of the employee; or

     (b) Placement of a child with the employee for adoption or foster care.

     (2) Parental leave must be taken during the first year following the child's birth or placement of the child with the employee for adoption or foster care.

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NEW SECTION
WAC 357-31-465   Who qualifies for parental leave?   Only permanent employees or employees who have worked for the state for twelve (12) months and for at least one thousand two hundred fifty (1250) hours qualify for parental leave.

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NEW SECTION
WAC 357-31-470   How and when can an employee request to be off work on parental leave?   The employee must submit a written request for parental leave in accordance with the employer's leave policy. The employee must provide not less than thirty (30) days' notice, except when a child's birth or placement requires leave to begin in less than thirty (30) days, in which case the employee must provide notice as soon as is practicable.

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NEW SECTION
WAC 357-31-475   How long can an employee request to be off work for parental leave?   Employees are entitled to request six (6) months of parental leave for the purposes specified WAC 357-31-460. Employers may only deny requests for that portion of the parental leave that exceeds the provisions of WAC 357-31-525. The only basis for denial is operational necessity. Employers may approve requests for more than six (6) months of parental leave.

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NEW SECTION
WAC 357-31-480   Is parental leave in addition to any leave for sickness or temporary disability because of pregnancy and/or childbirth?   Under RCW 49.78.005, the family leave required by U.S.C. 29.2612 (a)(1)(A) and (B) of the federal family and medical leave act of 1993 (Act Feb. 5, 1993, P.L. 103-3, 107 Stat. 6) must be in addition to any leave for sickness or temporary disability because of pregnancy or childbirth as provided in WAC 357-31-500.

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NEW SECTION
WAC 357-31-485   How and when must an employer respond to an employee's request for parental leave?   If the employee's request for parental leave is covered by WAC 357-31-525, the employer must approve the request; therefore, no response is needed.

     If the employee's request is for time off which exceeds the provisions of WAC 357-31-525, the employer must respond in writing to the employee's request within ten (10) working days of the receipt of the request. If the leave is denied, the employer must provide a rationale supporting the operational necessity.

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NEW SECTION
WAC 357-31-490   Will time off for parental leave be paid or unpaid?   (1) Parental leave may be a combination of vacation leave, personal holiday, compensatory time, and leave of absence without pay. Sick leave may be used if the criteria in WAC 357-31-130 are met. The combination and use of paid and unpaid leave during a parental leave is at the employee's choice.

     (2) If necessary while on approved parental leave, the employee must be allowed to use eight (8) hours per month of the accrued paid leave identified in subsection (1) of this section during a parental leave of absence without pay to provide for continuation of benefits as provided by the public employees' benefits board. The employer designates when during the month paid leave will be interspersed to maintain benefits.

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NEW SECTION
WAC 357-31-495   Will time off for parental leave be designated under the Family and Medical Leave Act?   Employers may designate a total of twelve (12) work weeks of accrued paid leave or leave without pay for purposes of parental leave as family and medical leave under the Family and Medical Leave Act. These twelve (12) weeks are in addition to any paid or unpaid leave the employee is eligible for and takes for sickness or temporary disability due pregnancy or childbirth.

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NEW SECTION
WAC 357-31-500   When must disability leave due to pregnancy and/or childbirth be granted?   Leave of absence must be granted for the period of time that a permanent employee is sick or temporarily disabled because of pregnancy and/or childbirth.

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NEW SECTION
WAC 357-31-505   How does an employee request disability leave due to pregnancy and/or childbirth?   The employee must submit a written request for disability leave due to pregnancy and/or childbirth in accordance with the employer's leave policy.

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NEW SECTION
WAC 357-31-510   Is the employee required to provide the employer with medical certification during disability leave due to pregnancy and/or childbirth?   In accordance with the employer's family and medical leave policy, the employee may be required to submit medical certification or verification for the period of disability leave due to pregnancy and/or childbirth.

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NEW SECTION
WAC 357-31-515   Will time off during the period of disability leave due to pregnancy and/or childbirth be paid?   Disability leave due to pregnancy and/or childbirth may be a combination of sick leave, vacation leave, personal holiday, compensatory time, and leave without pay. The combination and use of paid and unpaid leave must be per the choice of the employee.

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NEW SECTION
WAC 357-31-520   How does the Family and Medical Leave Act of 1993 and the Family Care Law interact with the civil service rules?   Benefits provided through state laws and civil service rules must not be diminished or withheld in complying with the Family and Medical Leave Act of 1993.

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NEW SECTION
WAC 357-31-525   What is an employee entitled to under the Family and Medical Leave Act of 1993?   (1) The Family and Medical Leave Act of 1993 (29 USC 2601 et seq) and its implementing rules, 29 CFR Part 825, provide that an eligible employee must be granted, during a twelve-month period, a total of twelve (12) work weeks of absence when one or more of the following conditions exist:

     (a) As a result of the employee's serious health condition;

     (b) To care for an employee's parent, spouse, or minor/dependent child who has a serious health condition; and/or

     (c) To provide care to an employee's newborn, adopted or foster child as provided in WAC 357-31-460.

     (2) For general government employers, the twelve-month period in subsection (1) above is a rolling twelve (12) months measured from the date an employee begins leave under the Family and Medical Leave Act of 1993. Higher education employers must define within their family and medical leave policy how the twelve (12) months is measured

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NEW SECTION
WAC 357-31-530   Under the Family and Medical Leave Act of 1993, how is an eligible employee defined?   In accordance with 29 CFR Part 825, an eligible employee is an employee who has worked for the state for at least twelve (12) months and for at least one thousand two hundred fifty (1,250) hours during the previous twelve-month period.

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NEW SECTION
WAC 357-31-535   Who designates absences which meet the criteria of the Family and Medical Leave Act?   The employer designates absences which meet the criteria of the Family and Medical Leave Act. Paid or unpaid leave, excluding compensatory time, used for that designated absence must be counted towards the twelve (12) weeks of the Family and Medical Leave Act entitlement.

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NEW SECTION
WAC 357-31-540   Who chooses if an employee will use paid leave or leave without pay for absences granted under the Family and Medical Leave Act?   The employee may choose to use appropriate accrued paid leave or leave without pay for absence granted in accordance with the Family and Medical Leave Act. Use of accrued paid leave and leave without pay must be in accordance with the civil service rules.

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NEW SECTION
WAC 357-31-545   Under the Family and Medical Leave Act, can an employee request an intermittent or reduced schedule?   Employee absence granted for the purpose of WAC 357-31-525 (1)(a) and (b) must be granted on an intermittent or reduced schedule at the employee's request when medically necessary.

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NEW SECTION
WAC 357-31-550   When an employee returns from an absence designated as FMLA, what position will the employee return to?   Following absence designated as FMLA the employee must be returned to the same or equivalent position held prior to the absence.

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NEW SECTION
WAC 357-31-555   Must employers continue health insurance benefits when an employee is on leave designated as FMLA?   The employer must continue an eligible employee's existing employer-paid health insurance benefits during paid or unpaid leave granted in accordance with the Family and Medical Leave Act.

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NEW SECTION
WAC 357-31-560   Must the employer have a Family and Medical Leave policy?   Each employer must develop and disseminate a policy specifying the procedures, required information, and time frames for employees to request and use leave in accordance with the state laws, the civil service rules, and the Family and Medical Leave Act of 1993 law and regulations found in 29 CFR Part 825.

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NEW SECTION
WAC 357-31-565   May employers grant paid leave for purposes of recognition?   Employers who have received performance management confirmation may grant employees up to five (5) days of paid leave within a twelve-month period to recognize outstanding accomplishments or the achievement of pre-defined work goals by individual employees or units. Leave granted under this provision:

     (1) Is not payable upon layoff, dismissal, separation, or resignation;

     (2) Must be used within twelve (12) months of the leave being granted; and

     (3) Must be used before the employee uses vacation leave.

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