WSR 08-08-059

PROPOSED RULES

DEPARTMENT OF PERSONNEL


[ Filed March 28, 2008, 1:10 p.m. ]

Original Notice.

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

Title of Rule and Other Identifying Information: WAC 357-31-525 What is an employee entitled to under the Family and Medical Leave Act of 1993? and 357-31-545 Under the Family and Medical Leave Act, can an employee request an intermittent or reduced schedule?

Hearing Location(s): Department of Personnel, 2828 Capitol Boulevard, Tumwater, WA, on May 8, 2008, at 8:30 a.m.

Date of Intended Adoption: May 8, 2008.

Submit Written Comments to: Connie Goff, Department of Personnel, P.O. Box 47500, e-mail connieg@dop.wa.gov, fax (360) 586-4694, by May 1, 2008. FOR DOP TRACKING PURPOSES PLEASE NOTE ON SUBMITTED COMMENTS "FORMAL COMMENT."

Assistance for Persons with Disabilities: Contact department of personnel by May 1, 2008, TTY (360) 753-4107 or (360) 586-8260.

Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: On January 28, 2008, President Bush signed into law amendments to the Family and Medical Leave Act which grant additional leave to employees who have family members in the military. Two new types of leave were added. The first is "exigency leave" which allows a fifth qualifying reason for the leave entitlement of twelve weeks of family medical leave due to a qualifying exigency arising from the fact that a spouse, child, or parent of an employee is on active duty or has been notified of pending call to active duty in the Armed Forces in support of a contingency operation. This provision is not effective until the federal Department of Labor (DOL) issues regulations. The second type is "service member leave." This addition allows up to twenty-six weeks of leave for an eligible employee who is the spouse, child, parent, or next of kin of a covered service member. This leave is used to care for a covered service member who is suffering from a serious illness or injury arising from injuries incurred in the line of duty. The amendment to WAC 357-31-525 (1)(c) is a housekeeping change. The other amendments to WAC 357-31-525 and 357-31-545 address service member leave. Once the DOL issues the regulations for the exigency leave, further amendments will be made.

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: Kristie Wilson, 521 Capitol Way South, Olympia, WA, (360) 664-6408; 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.

March 28, 2008

Eva N. Santos

Director


AMENDATORY SECTION(Amending WSR 05-12-086, filed 5/27/05, effective 7/1/05)

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 work weeks of absence:

(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)) For the birth of and to provide care to an employee's newborn, adopted or foster child as provided in WAC 357-31-460.

(2) An eligible employee who is the spouse, son, daughter, parent, or next of kin of a covered service member shall be entitled to a total of twenty-six work weeks of leave during a twelve-month period to care for the service member who is suffering from a serious illness or injury arising from injuries incurred in the line of duty. The leave described in this paragraph shall only be available during a single twelve-month period.

(a) For purposes of this section, "next of kin" with respect to an individual means the nearest blood relative of that individual.

(b) For purposes of this section, "covered service member" is a member of the Armed Forces, including the National Guard or Reserves, who is undergoing medical treatment, recuperation, or therapy, is otherwise in outpatient status, or is otherwise on a temporary disability retired list for a serious illness or injury.

(c) For purposes of this section, "serious illness or injury" means an injury or illness incurred by the covered service member in the line of duty while on active duty in the Armed Forces that may render the service member medically unfit to perform the duties of the service member's office, grade, rank, or rating.

(3) During the twelve-month period described in subsection (2) above, an eligible employee shall be entitled to a combined total of twenty-six work weeks of leave under subsections (1) and (2) above. Nothing in this section shall be construed to limit the availability of leave under subsection (1) during any other twelve-month period.

(((2))) (4) For general government employers, the twelve-month period in subsections (1) and (2) above is measured forward from the date the requesting employee begins leave under the Family and Medical Leave Act of 1993. The employee's next twelve-month period would begin the first time leave under the Family and Medical Leave Act is taken after completion of the previous twelve-month period. Higher education employers must define within their family and medical leave policy how the twelve months are measured.

[Statutory Authority: Chapter 41.06 RCW. 05-12-086, 357-31-525, filed 5/27/05, effective 7/1/05; 05-08-140, 357-31-525, filed 4/6/05, effective 7/1/05.]


AMENDATORY SECTION(Amending WSR 05-08-140, filed 4/6/05, effective 7/1/05)

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. Employee absence granted for the purpose of WAC 357-31-525(2) must also be granted on an intermittent or reduced schedule at the employee's request.

[Statutory Authority: Chapter 41.06 RCW. 05-08-140, 357-31-545, filed 4/6/05, effective 7/1/05.]

Washington State Code Reviser's Office