WSR 05-01-247

PROPOSED RULES

DEPARTMENT OF PERSONNEL


[ Filed December 22, 2004, 11:43 a.m. ]

Original Notice.

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

Title of Rule and Other Identifying Information: WAC 357-31-380 What is the purpose of the state leave sharing program?, 357-31-385 When is an employee eligible to receive shared leave?, 357-31-390 What criteria does an employee have to meet to be eligible to receive shared leave?, 357-31-395 What definitions apply to shared leave?, 357-31-400 How much shared leave may an employee receive?, 357-31-405 What documentation may an employee seeking shared leave be required to submit?, 357-31-410 May employees donate leave to employees in other agencies, institutions of higher education, or related higher education boards?, 357-31-415 Can donated leave be used for any purpose?, 357-31-420 What rate of pay is the employee receiving shared leave paid?, 357-31-425 What types of leave can an employee donate for the purposes of the state leave sharing program?, 357-31-430 How will shared leave be administered?, 357-31-435 Must employees use their own leave before using shared leave?, 357-31-440 How must employees who are receiving shared leave be treated during their absence?, 357-31-445 What happens to leave that was donated under the state leave sharing program and was not used by the recipient?, 357-31-450 Must an employee who receives shared leave repay the value of the leave that he or she used?, and 357-31-455 What records must an employer maintain pertaining to the state leave sharing program?

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 shared leave for state employees.

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 357-31-380   What is the purpose of the state leave sharing program?   The purpose of the state leave sharing program is to permit state employees, at no significantly increased cost to the state for providing leave, to come to the aid of another state employee who has been called to service in the uniformed services or who is suffering from or has a relative or household member suffering from an extraordinary or severe illness, injury, impairment, or physical or mental condition which has caused or is likely to cause the employee to take leave without pay or terminate his or her employment.

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NEW SECTION
WAC 357-31-385   When is an employee eligible to receive shared leave?   An employee is eligible to receive shared leave when the employee is able to use accrued vacation leave, sick leave, or a personal holiday. Employees may only receive shared leave donations from categories of leave they are eligible to use.

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NEW SECTION
WAC 357-31-390   What criteria does an employee have to meet to be eligible to receive shared leave?   An employee may be eligible to receive shared leave if the agency head or higher education institution president has determined the employee meets the following criteria:

(1) The employee:

(a) suffers from, or has a relative or household member suffering from, an illness, injury, impairment, or physical or mental condition which is of an extraordinary or severe nature; or

(b) The employee has been called to service in the uniformed services.

(2) The illness, injury, impairment, condition, or call to service has caused, or is likely to cause, the employee to:

(a) Go on leave without pay status; or

(b) Terminate state employment.

(3) The employee's absence and the use of shared leave are justified.

(4) The employee has depleted or will shortly deplete his or her:

(a) Personal holiday, accrued vacation leave, and accrued sick leave if the employee qualifies under subsection (1)(a) of this section; or

(b) Personal holiday, accrued vacation leave, and paid military leave allowed under RCW 38.40.060 if the employee qualifies under subsection (1)(b) of this section.

(5) The employee has abided by employer rules regarding:

(a) Sick leave use if the employee qualifies under subsection (1)(a) of this section; or

(b) Military leave if the employee qualifies under subsection (1)(b) of this section.

(6) If the illness or injury is work-related and the employee has diligently pursued and been found to be ineligible for benefits under chapter 51.32 RCW if the employee qualifies under subsection (1)(a) of this section.

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NEW SECTION
WAC 357-31-395   What definitions apply to shared leave?   (1) "Employee" means any employee who is entitled to accrue sick leave or vacation leave and for whom accurate leave records are maintained.

(2) "Employee's relative" normally must be limited to the employee's spouse, child, grandchild, grandparent, or parent.

(3) "Severe" or "extraordinary" condition is defined as serious or extreme and/or life threatening.

(4) "Service in the uniformed services" means the performance of duty on a voluntary or involuntary basis in a uniformed service under competent authority and includes active duty, active duty for training, initial active duty for training, inactive duty training, full-time national guard duty including state-ordered active duty, and a period for which a person is absent from a position of employment for the purpose of an examination to determine the fitness of the person to perform any such duty.

(5) "Uniformed services" means the armed forces, the army national guard, and the air national guard of any state, territory, commonwealth, possession, or district when engaged in active duty for training, inactive duty training, full-time national guard duty, or state active duty, the commissioned corps of the public health service, the coast guard, and any other category of persons designated by the President of the United States in time of war or national emergency.

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NEW SECTION
WAC 357-31-400   How much shared leave may an employee receive?   The employer determines the amount of leave, if any, which an employee may receive under these rules. However, an employee must not receive more than two hundred sixty-one (261) days of shared leave and a nonpermanent employee who is eligible to use accrued leave or personal holiday may not use shared leave beyond the expected end date of the appointment.

Employers are encouraged to consider other methods of accommodating the employee's needs such as modified duty, modified hours, flex-time, or special assignments in place of shared leave.

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NEW SECTION
WAC 357-31-405   What documentation may an employee seeking shared leave be required to submit?   (1) For employees seeking shared leave under WAC 357-31-390 (1)(a), the employer may require the employee to submit a medical certificate from a licensed physician or health care practitioner verifying the severe or extraordinary nature and expected duration of the condition before the employer approves or disapproves the request.

(2) For employees seeking shared leave under WAC 357-31-390 (1)(b), the employer may require the employee to submit a copy of the military orders verifying the employee's required absence before the employer approves or disapproves the request.

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NEW SECTION
WAC 357-31-410   May employees donate leave to employees in other agencies, institutions of higher education, or related higher education boards?   Leave donated under the civil service rules and shared leave statutes may be transferred from employees of one employer to an employee of the same employer or, with the approval of the heads of both employers, to an employee of another state employer.

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NEW SECTION
WAC 357-31-415   Can donated leave be used for any purpose?   Vacation leave, sick leave, or all or part of a personal holiday transferred from a donating employee under these rules must be used solely for the purpose stated in WAC 357-31-380.

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NEW SECTION
WAC 357-31-420   What rate of pay is the employee receiving shared leave paid?   The receiving employee is paid his/her regular rate of pay. Therefore, the value of one (1) hour of shared leave may cover more or less than one (1) hour of the recipient's salary.

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NEW SECTION
WAC 357-31-425   What types of leave can an employee donate for the purposes of the state leave sharing program?   An employee may donate vacation leave, sick leave, or all or part of a personal holiday to another employee for purposes of the state leave sharing program under the following conditions:

(1) Vacation leave: The donating employee's employer approves the employee's request to donate a specified amount of vacation leave to an employee authorized to receive shared leave and the full-time employee's request to donate leave will not cause his/her vacation leave balance to fall below eighty (80) hours after the transfer. For part-time employees, requirements for vacation leave balances are prorated.

(2) Sick leave: The donating employee's employer approves the employee's request to donate a specified amount of sick leave to an employee authorized to receive shared leave and the employee's request to donate leave will not cause his/her sick leave balance to fall below one hundred seventy-six (176) hours after the transfer.

(3) Personal holiday: The donating employee's employer approves the employee's request to donate all or part of his or her personal holiday to an employee authorized to receive shared leave.

Any portion of a personal holiday that is accrued, donated as shared leave, and then returned during the same calendar year to the donating employee, may be taken by the donating employee.

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NEW SECTION
WAC 357-31-430   How will shared leave be administered?   The calculation of the recipient's leave value must be in accordance with applicable office of financial management policies, regulations, and procedures. The dollar value of the leave is converted from the donor to the recipient. The leave received is coded as shared leave and is maintained separately from all other leave balances.

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NEW SECTION
WAC 357-31-435   Must employees use their own leave before using shared leave?   Employees who qualify for shared leave under WAC 357-31-390 (1)(a) must first use all compensatory time, personal holiday, sick leave, and vacation leave that they have accrued before using shared leave. Employees who qualify under WAC 357-31-390 (1)(b) must use all of their accrued vacation leave and paid military leave allowed under RCW 38.40.060 before using shared leave.

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NEW SECTION
WAC 357-31-440   How must employees who are receiving shared leave be treated during their absence?   An employee using shared leave under these rules continues to be classified as a state employee and receives the same treatment in respect to salary, wages, and employee benefits as the employee would normally receive if using accrued vacation leave or sick leave.

Employees who, during their probationary period or trial service period, go on shared leave must have their probationary period or trial service period extended by the number of calendar days they are on shared leave unless the shared leave is because the employee has been called to service in the uniformed services.

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NEW SECTION
WAC 357-31-445   What happens to leave that was donated under the state leave sharing program and was not used by the recipient?   (1) Any shared leave not used by the recipient during each incident/occurrence as determined by the employer must be returned to the donor(s).

The remaining shared leave must be returned to the donors and reinstated to the respective donors' appropriate leave balances based on each employee's current salary rate at the time of the reversion. The shared leave returned must be returned in accordance with office of financial management policies.

(2) Unused shared leave may not be cashed out by a recipient.

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NEW SECTION
WAC 357-31-450   Must an employee who receives shared leave repay the value of the leave that he or she used?   An employee who uses leave that is donated under the state leave sharing program is not required to repay the value of the leave that he or she used.

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NEW SECTION
WAC 357-31-455   What records must an employer maintain pertaining to the state leave sharing program?   Agencies must maintain records which contain sufficient information to provide for any state review.

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