WSR 05-01-250

PROPOSED RULES

DEPARTMENT OF PERSONNEL


[ Filed December 22, 2004, 11:45 a.m. ]

Original Notice.

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

Title of Rule and Other Identifying Information: WAC 357-31-165 At what rate do employees accrue vacation leave?, 357-31-170 At what rate do part-time employees accrue vacation leave?, 357-31-175 Do employees accrue vacation leave if they have taken leave without pay during the month?, 357-31-180 When an employee has taken leave without pay during the month is the employee's rate of accrual adjusted for the leave without pay?, 357-31-185 When and how does an employee request the use of vacation leave?, 357-31-190 When can an employee start to use accrued vacation leave?, 357-31-195 Can an employee use vacation leave before it is accrued?, 357-31-200 When must an employer grant the use of vacation leave?, 357-31-205 What may an employer consider in granting the use of vacation leave?, 357-31-210 What is the maximum number of hours of vacation leave that an employee can accumulate?, 357-31-215 When may vacation leave be accumulated above the maximum two hundred forty (240) hours?, 357-31-220 What must be included in the statement of necessity for excess vacation leave?, 357-31-225 When employees separate from state service, are they entitled to a lump sum payment of unused vacation leave?, 357-31-230 When can an employee use accrued compensatory time?, 357-31-235 May an employee use leave if the employee sustains a work-related injury or illness that is compensable under the state workers' compensation law?, 357-31-240 What happens if an employee uses accrued sick leave during a period when he/she is receiving time loss compensation?, 357-31-245 What happens if an employee uses accrued vacation leave, accrued compensatory time, or receives holiday pay during a period when he/she is receiving time loss compensation?, 357-31-250 Are employees entitled to paid bereavement leave?, 357-31-255 What types of leave may an employee use when absent from work or arriving late to work because of inclement weather?, 357-31-260 When may an agency head or institution president suspend operations?, 357-31-265 What is the effect of suspended operations on employees who are not required to work during the closure?, 357-31-270 When an employer has suspended operations, how are employees who are required to work during the closure affected?, 357-31-275 What must be included in the employer's suspended operations procedure?, 357-31-280 How long can operations be suspended?, 357-31-285 Is an employer required to authorize the absence of an employee for family care emergencies?, 357-31-290 What qualifies as a family care emergency?, 357-31-295 What type of leave may employees use for family care emergencies?, 357-31-300 Is there a limit to how much leave can be used for a family care emergency?, and 357-31-305 Is advance approval required for an employee to take time off for a family care emergency?

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 vacation leave, compensatory time, bereavement leave, leave due to inclement weather, suspended operations, and leave used for family care emergencies.

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 357-31-165   At what rate do employees accrue vacation leave?   (1) Full-time employees accrue vacation leave at the following rates:

(a) During the first year of continuous state employment - 12 days (8.0 hours per month);

(b) During the second year of continuous state employment - 13 days (8 hours, 40 minutes per month);

(c) During the third and fourth years of continuous state employment - 14 days (9 hours, 20 minutes per month);

(d) During the fifth, sixth, and seventh years of total state employment - 15 days (10 hours per month);

(e) During the eighth, ninth, and tenth years of total state employment - 16 days (10 hours, 40 minutes per month);

(f) During the eleventh year of total state employment - 17 days (11 hours, 20 minutes per month).

(g) During the twelfth year of total state employment - 18 days (12 hours per month).

(h) During the thirteenth year of total state employment - 19 days (12 hours, 40 minutes per month).

(i) During the fourteenth year of total state employment - 20 days (13 hours, 20 minutes per month).

(j) During the fifteenth year of total state employment - 21 days (14 hours per month).

(k) During the sixteenth and succeeding years of total state employment - 22 days (14 hours, 40 minutes per month).

(2) Higher education employers may establish accrual rates that exceed the rates listed in subsection (1) of this section.

(3) The following applies for purposes of computing the rate of vacation leave accrual:

(a) as an elected official or in a judicial appointment is credited.

(b) Employment exempt by the provisions of WAC 357-04-040, 357-04-045, 357-04-050, 357-04-055 is not credited.

(c) Each contract year, or equivalent, of full-time faculty and/or administrative exempt employment with a higher education employer is credited as one (1) year of qualifying service.

(d) Exempt employment with a general government employer is credited, other than that specified in WAC 357-04-055 which is excluded.

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NEW SECTION
WAC 357-31-170   At what rate do part-time employees accrue vacation leave?   (1) Part-time general government employees accrue vacation leave credits on a pro rata basis in accordance with WAC 357-31-125.

(2) Part-time higher education employees accrue on the same pro rata basis that their appointment bears to a full-time appointment.

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NEW SECTION
WAC 357-31-175   Do employees accrue vacation leave if they have taken leave without pay during the month?   (1) Full-time general government employees who are in pay status for less than eighty (80) nonovertime hours in a month do not earn a monthly accrual of vacation leave.

(2) Full-time and part-time higher education employees who have more than ten (10) working days of leave without pay in a month do not earn a monthly accrual of vacation leave.

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NEW SECTION
WAC 357-31-180   When an employee has taken leave without pay during the month is the employee's rate of accrual adjusted for the leave without pay?   Leave without pay taken for military leave of absence without pay or for scheduled mandatory periods of leave without pay for employees in cyclic year positions do not affect the rate at which employees accrue vacation leave. For all other periods of leave without pay, the following applies:

(1) When a general government employee takes leave without pay, the employee's anniversary date and unbroken service date are adjusted in accordance with WAC 357-31-345. These adjustments affect the rate at which an employee accrues vacation leave.

(2) When a higher education employee takes more than ten (10) working days of leave without pay, that month does not qualify as a month of employment under WAC 357-31-165.

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NEW SECTION
WAC 357-31-185   When and how does an employee request the use of vacation leave?   All requests for vacation leave must be made in accordance with the employer's leave policy.

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NEW SECTION
WAC 357-31-190   When can an employee start to use accrued vacation leave?   An employee (part-time or full-time) must complete six (6) months of continuous state employment before he/she can use vacation leave.

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NEW SECTION
WAC 357-31-195   Can an employee use vacation leave before it is accrued?   An employee is not entitled to use vacation leave in advance of its accrual.

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NEW SECTION
WAC 357-31-200   When must an employer grant the use of vacation leave?   An employee's request to use vacation leave must be approved under the following conditions:

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

(2) To care for a spouse, parent, parent-in-law, or grandparent of the employee who has a serious health condition or an emergency health condition.

(3) To care for a minor/dependent child with a health condition that requires treatment or supervision.

(4) For parental leave as provided in WAC 357-31-460.

In accordance with the employer's leave policy, approval may be subject to verification that the condition exists.

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NEW SECTION
WAC 357-31-205   What may an employer consider in granting the use of vacation leave?   When considering requests for vacation leave, the employer must consider the needs of the employee but may require that leave be taken when it will least interfere with the operational needs of the employer.

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NEW SECTION
WAC 357-31-210   What is the maximum number of hours of vacation leave that an employee can accumulate?   Vacation leave may be accumulated to a maximum of thirty (30) working days (240 hours). Exceptions to this maximum are described in WAC 357-31-215.

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NEW SECTION
WAC 357-31-215   When may vacation leave be accumulated above the maximum two hundred forty (240) hours?   There are two circumstances in which vacation leave may be accumulated above the maximum of thirty (30) working days (240 hours).

(1) If an employee's request for vacation leave is denied by the employer, and the employee is close to the maximum vacation leave (240 hours), the employer must grant an extension for each month that the employer defers the employee's request for vacation leave. The employer must maintain a statement of necessity justifying the extension.

(2) As an alternative to subsection (1), employees may also accumulate vacation leave in excess of two hundred forty (240) hours as follows:

(a) An employee may accumulate the vacation leave days between the time thirty (30) days is accrued and his/her next anniversary date of state employment.

(b) Leave accumulated above two hundred forty (240) hours must be used by the next anniversary date and in accordance with the employer's leave policy. If such leave is not used before the employee's anniversary date, the excess leave is automatically lost and considered to have never existed.

(c) Any leave accumulated above two hundred forty (240) hours without a statement of necessity between anniversary dates must not, regardless of circumstances, be deferred by the employer by a statement of necessity as described in (1) above. For example:

On June 15, an employee is assigned to work on a special project. It is expected that the assignment will last six months. Due to an ambitious timeline and strict deadlines, the employee will not be able to take any vacation leave during that time. On June 15, the employee's vacation leave balance is 260 hours. The employee accrues 10 hours monthly and his/her anniversary date is October 16. If a statement of necessity is filed in June, his/her leave accrual for the four months between June and October will be deferred and not lost as long the employee uses those 40 deferred hours by his/her next anniversary date (October 16 of the following year). The hours of excess vacation leave the employee has on June 15 (20 hours) will not be deferred and will be lost if not used by the approaching anniversary date (October 16 of the present year).

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NEW SECTION
WAC 357-31-220   What must be included in the statement of necessity for excess vacation leave?   At a minimum, a statement of necessity for excess vacation leave must include all of the following:

(1) The date on which the statement of necessity was authorized;

(2) Justification of denial of the employee's leave request;

(3) Date upon which the employee will be able to resume leave usage;

(4) The employee's total leave balance on his/her anniversary date;

(5) The employee's accrual rate; and

(6) The employee's leave balance at the time of the request.

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NEW SECTION
WAC 357-31-225   When employees separate from state service, are they entitled to a lump sum payment of unused vacation leave?   (1) When an employee who has completed six (6) continuous months of employment separates from service by reason of resignation with adequate notice, layoff, trial service reversion, separation, dismissal, retirement, or death, the employee is entitled to a lump sum payment of unused vacation leave. The payment is computed by using the formula published by the office of financial management. No contributions are to be made to the department of retirement systems (DRS) for lump sum payment of excess vacation leave accumulated under the provisions of WAC 357-31-215(2), nor shall such payment be reported to the DRS as compensation.

(2) General government permanent employees may defer the payment of accumulated vacation leave to which they are entitled for a period of thirty (30) calendar days in any of these circumstances:

(a) If the separation resulted from a layoff, trial service reversion, or conclusion of a project or nonpermanent appointment and there is a reasonable probability of re-employment, or

(b) If the separation resulted from an employee returning to a classified position from an exempt position under the provision of RCW 41.06.070.

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NEW SECTION
WAC 357-31-230   When can an employee use accrued compensatory time?   (1) Employees must request to use accrued compensatory time in accordance with the employer's leave policy. When considering employees' requests, employers must consider the work requirements of the department and the wishes of the employee.

(2) An employee must be granted the use of accrued compensatory time to care for a spouse, parent, parent-in-law, or grandparent of the employee who has a serious health condition or an emergency health condition, or to care for a minor/dependent child with a health condition that requires treatment or supervision. In accordance with the employer's leave policy, approval of the employee's request to use accrued compensatory time maybe subject to verification that the condition exists.

(3) Compensatory time off may be scheduled by the employer during the final sixty (60) days of a biennium.

(4) Employers may require that accumulated compensatory time be used before vacation leave is approved, except in those instances where this requirement would result in loss of accumulated vacation leave.

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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 357-31-235   May an employee use leave if the employee sustains a work-related injury or illness that is compensable under the state workers' compensation law?   An employee who sustains a work related injury or illness that is compensable under the workers' compensation law may choose to receive time-loss compensation exclusively, use accrued paid leave exclusively, or combine time loss compensation and accrued paid leave.

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NEW SECTION
WAC 357-31-240   What happens if an employee uses accrued sick leave during a period when he/she is receiving time loss compensation?   An employee who uses accrued sick leave during a period when the employee receives time-loss compensation must have his/her payment for sick leave reduced by the amount of time-loss compensation received by the employee. Until eligibility for workers' compensation is determined by the department of labor and industries, the employer may pay full sick leave; however, the employee must return any overpayment to the employer when the salary adjustment is determined.

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NEW SECTION
WAC 357-31-245   What happens if an employee uses accrued vacation leave, accrued compensatory time, or receives holiday pay during a period when he/she is receiving time loss compensation?   An employee who uses accrued vacation leave, accrued compensatory time, or receives holiday pay during a period when he/she is receiving time loss compensation is entitled to time-loss compensation and full pay for vacation leave, compensatory time, and holiday pay.

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NEW SECTION
WAC 357-31-250   Are employees entitled to paid bereavement leave?   (1) If an employee's family member or household member dies, the employee is entitled to three (3) days of paid bereavement leave. An employee may request less than three (3) days of paid bereavement leave.

(2) In accordance with the employer's leave policy, the employer may require verification of the family member's or household member's death.

(3) In addition to paid bereavement leave, the employer may approve an employee's request to use paid leave (accrued compensatory time, sick leave, vacation leave, and/or a personal holiday) or to take leave without pay for purposes of bereavement.

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NEW SECTION
WAC 357-31-255   What types of leave may an employee use when absent from work or arriving late to work because of inclement weather?   When the employer determines inclement weather conditions exist, the employer's leave policy governs the order in which accrued leave and compensatory time may be used to account for the time an employee is absent from work due to the inclement weather. The employer's policy must allow the use of accrued vacation leave, accrued sick leave up to a maximum of three (3) days in any calendar year, and the use of leave without pay in lieu of paid leave at the request of the employee.

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NEW SECTION
WAC 357-31-260   When may an agency head or institution president suspend operations?   When it is determined that public safety, health, or property is jeopardized due to emergency conditions, the agency head or institution president may suspend operations for the entire agency, higher education institution, related board, or any portion of the organization, in accordance with the employer's suspended operations procedure.

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NEW SECTION
WAC 357-31-265   What is the effect of suspended operations on employees who are not required to work during the closure?   At a minimum, employees not required to work during suspended operations must be allowed to use their personal holiday, accrued vacation leave, accrued compensatory time, or leave without pay to account for the time lost due to the closure. If an employer's suspended operations procedure allows, employees may also be released without a loss in pay or given a reasonable opportunity to make up work time lost as a result of the suspended operations. For overtime eligible employees, compensation for making up lost work time must be granted on a compensatory time basis at not less than straight time nor more than time and one-half, and must be part of the employer's suspended operations procedures. The amount of compensation earned under this section must not exceed the amount of salary lost by the employee due to suspended operation.

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NEW SECTION
WAC 357-31-270   When an employer has suspended operations, how are employees who are required to work during the closure affected?   Employees required to work during the closure must receive their regular rate of pay for work performed during the period of suspended operations. Overtime worked during the closure must be compensated in accordance with chapter 357-28 WAC. The employer may petition the director for approval of a special premium pay allowance due to hazardous working conditions encountered by employees required to work during the period of suspended operations.

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NEW SECTION
WAC 357-31-275   What must be included in the employer's suspended operations procedure?   Each employer must develop a suspended operations procedure. The procedure must at a minimum address all of the following:

(1) How employees will be notified of suspended operations.

(2) What happens when prior notification has not been given and employees are released until further notice after reporting to work.

(3) How employees who are not required to work during suspended operations are affected.

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NEW SECTION
WAC 357-31-280   How long can operations be suspended?   The period of suspended operations must not exceed fifteen (15) calendar days without director approval.

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NEW SECTION
WAC 357-31-285   Is an employer required to authorize the absence of an employee for family care emergencies?   Absence because of an employee's inability to report for or continue scheduled work due to a family care emergency:

(1) Must be authorized for care of the employee's spouse, household member or the employee's/spouse's child, parent or grandparent up to the limits specified in WAC 357-31-300.

(2) May be authorized for care of others in accordance with the employer's leave policy.

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NEW SECTION
WAC 357-31-290   What qualifies as a family care emergency?   The employer's leave policy must define what qualifies as a family care emergency. At a minimum, the employer's definition must include:

(1) Minor/dependent child care emergencies such as unexpected absence of regular care provider, unexpected closure of child's school, or unexpected need to pick up child at school earlier than normal.

(2) Elder care emergencies such as the unexpected absence of a regular care provider or unexpected closure of an assisted living facility.

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NEW SECTION
WAC 357-31-295   What type of leave may employees use for family care emergencies?   (1) After an employee has used all accrued compensatory time, the employee may choose which of following leave categories to use to account for time away from work for family care emergencies:

(a) Vacation leave.

(b) Sick leave in accordance with WAC 357-31-130.

(c) Leave without pay.

(d) Personal holiday.

(2) Use of any of these leave categories is dependent on the employee's eligibility to use that leave.

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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 357-31-300   Is there a limit to how much leave can be used for a family care emergency?   (1) For purposes of family care emergencies, each calendar year an employee must be allowed to use up to three (3) work days of:

(a) Vacation leave,

(b) Sick leave, and

(c) Leave without pay.

(2) At the employer's discretion, additional leave in excess of three (3) days for each category of leave may be granted.

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NEW SECTION
WAC 357-31-305   Is advance approval required for an employee to take time off for a family care emergency?   No advance approval is required for an employee to take time off for a family care emergency; however, the employee must notify the employer at the beginning of the absence. In accordance with the employer's leave policy, the employee may be required to provide verification of the need to take leave and that the situation was such that advance notice was not possible.

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Legislature Code Reviser 

Register

Washington State Code Reviser's Office