Effective Date of Rule: October 1, 2008.

     Purpose: The proposed changes are due to the passage of SHB 2602, SB 6447, and SSB 6500. These bills passed during the 2008 legislative session.

     SHB 2602 - allows an employee to take accrued paid leave or unpaid leave if the employee or the employee's family member is a victim of domestic violence, sexual assault, or stalking.

     SB 6447 – allows an employee whose spouse is in the military to take fifteen days of unpaid leave to be with the military spouse before deployment or when the military spouse is on leave from deployment. The employee may choose to use accrued leave in place of leave without pay.

     SSB 6500 – adds being a victim of domestic violence, sexual assault, or stalking as a qualifying reason for an employee to receive shared leave.

     Section 3 of SHB 2602 specifically states the reasons allowed for taking leave under this law, SSB 6500 does not. Therefore, we did not address the reasons in rule because we did not want two different standards.

     The definition of "family member" found in WAC 357-01-172 is broader than the definition in SHB 2602. The definition in the bill includes "a person with whom the employee has a dating relationship." We decided to keep the current definition in WAC 357-01-172 and just add "a person with whom the employee has a dating relationship" for the purpose of SHB 2602.

     SHB 2602 addresses the employer's ability to request verification from the employee and what would be acceptable forms of verification. SSB 6500 does not address this. The new rule being proposed (WAC 357-31-730) and the language being added to WAC 357-31-405 is so that there will not be two different standards in regards to verification.

     Citation of Existing Rules Affected by this Order: Amending WAC 357-01-172, 357-31-070, 357-31-100, 357-31,130, 357-31-200, 357-31-230, 357-31-327, 357-31-360, 357-31-380, 357-31-390, 357-31-405 and 357-31-435; and new WAC 357-31-373, 357-31-730, and 357-31-567.

     Statutory Authority for Adoption: Chapter 41.06 RCW.

      Adopted under notice filed as WSR 08-12-100 on June 4, 2008.

     Changes Other than Editing from Proposed to Adopted Version: Added language to WAC 357-31-100(2) which addresses an employee being granted a "reasonable" amount of leave when the employee or the employee's family member is a victim of domestic violence, sexual assault, or stalking. Language was also added that states the employer will determine what will be considered a reasonable amount of leave on a case-by-case basis. Added language to WAC 357-01-172 to include domestic partners for the purpose of SHB 2602.

     Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 0, Amended 15, Repealed 0.

     Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.

     Number of Sections Adopted on the Agency's Own Initiative: New 0, Amended 0, Repealed 0.

     Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, Amended 0, Repealed 0.

     Number of Sections Adopted Using Negotiated Rule Making: New 0, Amended 0, Repealed 0;      Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 0, Amended 15, Repealed 0.

     Date Adopted: July 10, 2008.

Eva N. Santos

Director

[Statutory Authority: Chapter 41.06 RCW. 05-12-093, § 357-01-172, filed 5/27/05, effective 7/1/05.]

     (a) The employee is entitled to a personal holiday in accordance with RCW 1.16.050 and WAC 357-31-055;

     (b) The employee has requested the personal holiday in accordance with the employer's leave procedures; and

     (c) The employee's absence does not interfere with the operational needs of the employer.

     (2) At any time, an employer must allow an employee to use part or all of the personal holiday for ((either)) any of the following reasons:

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

     (b) 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((.));

     (c) If the employee or the employee's family member is a victim of domestic violence, sexual assault, or stalking as defined in section 2, chapter 286, Laws 2008. An employer may require the request for leave under this section be supported by verification in accordance with WAC 357-31-730; or

     (d) In accordance with WAC 357-31-373, for an employee to be with a spouse who is a member of the Armed Forces of the United States, National Guard, or Reserves after the military spouse has been notified of an impending call or order to active duty, before deployment, or when the military spouse is on leave from deployment.

[Statutory Authority: Chapter 41.06 RCW. 07-03-054, § 357-31-070, filed 1/12/07, effective 2/15/07; 05-08-136, § 357-31-070, filed 4/6/05, effective 7/1/05.]

     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.
AMENDATORY SECTION(Amending WSR 05-08-136, filed 4/6/05, effective 7/1/05)

WAC 357-31-100   Must an employer have a policy for requesting and approving leave?   Each employer must develop a leave policy which specifies the procedure for requesting and approving all leave, as provided in the civil service rules. The employer's policy must ((allow an employee to use vacation leave without advance approval when the employee is requesting to use vacation leave to respond to family care emergencies, or for an emergency health condition as provided in WAC 357-31-200(2).)):

     (1) Allow an employee to use vacation leave without advance approval when the employee is requesting to use vacation leave to respond to family care emergencies, or for an emergency health condition as provided in WAC 357-31-200(2);

     (2) Allow an employee to use a reasonable amount of accrued leave or unpaid leave when the employee is a victim, or has a family member, as defined in Chapter 357-01 WAC, who is a victim of domestic violence, sexual assault, or stalking as defined in section 2, chapter 286, Laws 2008; and

     (3) Address advance notice from the employee when the employee is seeking leave under subsection (2) of this section. When advance notice cannot be given because of an emergency or unforeseen circumstances due to domestic violence, sexual assault, or stalking, the employee or the employee's designee must give notice to the employer no later than the end of the first day that the employee takes such leave.

[Statutory Authority: Chapter 41.06 RCW. 05-08-136, § 357-31-100, filed 4/6/05, effective 7/1/05.]

     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.
AMENDATORY SECTION(Amending WSR 05-08-136, filed 4/6/05, effective 7/1/05)

WAC 357-31-130   When can an employee use accrued sick leave?   The employer may require medical verification or certification of the reason for sick leave use in accordance with the employer's leave policy.

     (1) Employers must allow the use of accrued sick leave under the following conditions:

     (a) Because of and during illness, disability, or injury that has incapacitated the employee from performing required duties.

     (b) By reason of exposure of the employee to a contagious disease when the employee's presence at work would jeopardize the health of others.

     (c) To care for a minor/dependent child with a health condition requiring treatment or supervision.

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

     (e) For family care emergencies per WAC 357-31-290, 357-31-295, 357-31-300, and 357-31-305.

     (f) For personal health care appointments.

     (g) For family members' health care appointments when the presence of the employee is required if arranged in advance with the employing official or designee.

     (h) When an employee is required to be absent from work to care for members of the employee's household or relatives of the employee/employee's spouse who experience an illness or injury, not including situations covered by subsection (1)(d) of this section.

     (i) The employer must approve up to five days of accumulated sick leave each occurrence. Employers may approve more than five days.

     (ii) For purposes of this subsection, "relatives" is limited to spouse, child, grandchild, grandparent or parent.

     (i) If the employee or the employee's family member, as defined in Chapter 357-01 WAC, is a victim of domestic violence, sexual assault, or stalking as defined in section 2, chapter 286, Laws 2008. An employer may require the request for leave under this section be supported by verification in accordance with WAC 357-31-730.

     (j) In accordance with WAC 357-31-373, for an employee to be with a spouse who is a member of the Armed Forces of the United States, National Guard, or Reserves after the military spouse has been notified of an impending call or order to active duty, before deployment, or when the military spouse is on leave from deployment.

     (2) Employers may allow the use of accrued sick leave under the following conditions:

     (a) For condolence or bereavement.

     (b) When an employee is unable to report to work due to inclement weather in accordance with the employer's policy on inclement weather as described in WAC 357-31-255.

[Statutory Authority: Chapter 41.06 RCW. 05-08-136, § 357-31-130, filed 4/6/05, effective 7/1/05.]

     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.
AMENDATORY SECTION(Amending WSR 05-08-137, filed 4/6/05, effective 7/1/05)

WAC 357-31-200   When must an employer grant the use of vacation leave?   (1) An employee's request to use vacation leave must be approved under the following conditions:

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

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

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

     (e) If the employee or the employee's family member, as defined in Chapter 357-01 WAC, is a victim of domestic violence, sexual assault, or stalking as defined in section 2, chapter 286, Laws 2008. An employer may require the request for leave under this section be supported by verification in accordance with WAC 357-31-730.

     (f) In accordance with WAC 357-31-373, for an employee to be with a spouse who is a member of the Armed Forces of the United States, National Guard, or Reserves after the military spouse has been notified of an impending call or order to active duty, before deployment, or when the military spouse is on leave from deployment.

     (2) In accordance with the employer's leave policy, approval for the reasons listed in (1)(a) through (1)(f) above may be subject to verification that the condition or circumstance exists.

[Statutory Authority: Chapter 41.06 RCW. 05-08-137, § 357-31-200, filed 4/6/05, effective 7/1/05.]

     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.
AMENDATORY SECTION(Amending WSR 05-08-137, filed 4/6/05, effective 7/1/05)

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 days of a biennium.)) An employee must be granted the use of accrued compensatory time if the employee or the employee's family member, as defined in Chapter 357-01 WAC, is a victim of domestic violence, sexual assault, or stalking as defined in section 2, chapter 286, Laws 2008. An employer may require the request for leave under this section be supported by verification in accordance with WAC 357-31-730.

     (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.)) In accordance with WAC 357-31-373, an employee must be granted the use of accrued compensatory time to be with a spouse who is a member of the Armed Forces of the United States, National Guard, or Reserves after the military spouse has been notified of an impending call or order to active duty, before deployment, or when the military spouse is on leave from deployment.

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

     (6) 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.

[Statutory Authority: Chapter 41.06 RCW. 05-08-137, § 357-31-230, filed 4/6/05, effective 7/1/05.]

     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.
AMENDATORY SECTION(Amending WSR 07-17-129, filed 8/20/07, effective 9/20/07)

WAC 357-31-327   Must an employer grant leave without pay for other miscellaneous reasons?   An employer must grant leave without pay ((when an employee who is a volunteer fire fighter is called to duty to respond to a fire, natural disaster, or medical emergency.)) under the following conditions:

     (1) When an employee who is a volunteer fire fighter is called to duty to respond to a fire, natural disaster, or medical emergency;

     (2) If the employee or the employee's family member, as defined in Chapter 357-01 WAC, is a victim of domestic violence, sexual assault, or stalking as defined in section 2, chapter 286, Laws 2008. An employer may require the request for leave under this section be supported by verification in accordance with WAC 357-31-730; or

     (3) In accordance with WAC 357-31-373, for an employee to be with a spouse who is a member of the Armed Forces of the United States, National Guard, or Reserves after the military spouse has been notified of an impending call or order to active duty, before deployment, or when the military spouse is on leave from deployment.

[Statutory Authority: Chapter 41.06 RCW. 07-17-129, § 357-31-327, filed 8/20/07, effective 9/20/07.]

     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 357-31-373   Is an employee whose spouse is a member of the Armed Forces of the United States entitled to take leave from work when the military spouse has been called to active duty or when the military spouse is on leave from deployment?   (1) During a period of military conflict, an employee who is a spouse of a member of the Armed Forces of the United States, National Guard, or Reserves who has been notified of an impending call or order to active duty or has been deployed is entitled to a total of fifteen days of unpaid leave per deployment. The employee is entitled to the fifteen days of unpaid leave after the military spouse has been notified of an impending call or order to active duty and before deployment or when the military spouse is on leave from deployment. The employee may choose to substitute accrued leave to which the employee is entitled for any part of the leave without pay.

     (2) An employee who seeks leave under this section must provide the employer with notice:

     (a) Within five business days of the employee's spouse receiving official notice of an impending call or order to active duty; or

     (b) Within five business days of the employee's spouse receiving official notice of leave from deployment.

[]

     (a) A police report indicating that the employee or the employee's family member was a victim of domestic violence, sexual assault, or stalking;

     (b) A court order protecting or separating the employee or employee's family member from the perpetrator of the act of domestic violence, sexual assault, or stalking;

     (c) Evidence from the court or prosecuting attorney that the employee or the employee's family member appeared, or is scheduled to appear, in court in connection with an incident of domestic violence, sexual assault, or stalking;

     (d) An employee's written statement that the employee or the employee's family member is a victim of domestic violence, sexual assault, or stalking; or

     (e) Documentation that the employee or the employee's family member is a victim of domestic violence, sexual assault, or stalking, from any of the following persons from whom the employee or employee's family member sought assistance in addressing the domestic violence, sexual assault, or stalking: An advocate for victims of domestic violence, sexual assault, or stalking; an attorney; a member of the clergy; or a medical or other professional.

     (2) If the victim of domestic violence, assault, or stalking is the employee's family member, as defined in Chapter 357-01 WAC, verification of the familial relationship between the employee and the victim may include but is not limited to: A statement from the employee; a birth certificate; a court document; or other similar documentation.

[]

     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.
AMENDATORY SECTION(Amending WSR 05-08-138, filed 4/6/05, effective 7/1/05)

WAC 357-31-360   Must employees who have been ordered to active duty or active training duty be granted paid military leave?   (1) Employees must be granted military leave with pay not to exceed ((fifteen)) twenty-one working days during each year, beginning October 1st and ending the following September 30th, in order to report for active duty or to take part in active training duty in the Washington National Guard or the Army, Navy, Air Force, Coast Guard, or Marine Corps reserves of the United States or any organized reserve or armed forces of the United States.

     (2) Military leave with pay is in addition to any vacation and sick leave to which an employee is entitled and does not reduce benefits, performance ratings, privileges, or pay.

     (3) During paid military leave, the employee must receive the normal base salary.

     (4) Employees required to appear during working hours for a physical examination to determine physical fitness for military service must receive full pay for the time required to complete the examination.

[Statutory Authority: Chapter 41.06 RCW. 05-08-138, § 357-31-360, filed 4/6/05, effective 7/1/05.]

     (a) An employee must be granted the use of recognition leave if the employee or the employee's family member, as defined in Chapter 357-01 WAC, is a victim of domestic violence, sexual assault, or stalking as defined in section 2, chapter 286, Laws 2008. An employer may require the request for leave under this section be supported by verification in accordance with WAC 357-31-730; and

     (b) In accordance with WAC 357-31-373, an employee must be granted the use of recognition leave to be with a spouse who is a member of the Armed Forces of the United States, National Guard, or Reserves after the military spouse has been notified of an impending call or order to active duty, before deployment, or when the military spouse is on leave from deployment.

     (2) In accordance with the employer's leave policy, approval for the reasons listed in (1)(a) and1(b) above may be subject to verification that the condition or circumstance exists.

[]

     Reviser's note: The typographical errors in the above section occurred in the copy filed by the agency and appear in the Register pursuant to the requirements of RCW 34.08.040.
AMENDATORY SECTION(Amending WSR 08-07-063, filed 3/17/08, effective 4/18/08)

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 volunteering with a governmental agency or a nonprofit organization when a state of emergency has been declared within the United States 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.)) 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 is likely to take leave without pay or terminate his or her employment because:

     (1) The employee has been called to service in the uniformed services;

     (2) The employee is volunteering with a governmental agency or a nonprofit organization when a state of emergency has been declared within the United States;

     (3) The employee or a relative or household member is suffering from an extraordinary or severe illness, injury, impairment, or physical or mental condition; or

     (4) The employee is a victim of domestic violence, sexual assault, or stalking as defined in RCW 41.04.655.

[Statutory Authority: Chapter 41.06 RCW. 08-07-063, § 357-31-380, filed 3/17/08, effective 4/18/08; 05-08-139, § 357-31-380, filed 4/6/05, effective 7/1/05.]

     (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; ((or))

     (c) A state of emergency has been declared anywhere within the United States by the federal or any state government and the employee has the needed skills to assist in responding to the emergency or its aftermath and volunteers his/her services to either a governmental agency or to a nonprofit organization engaged in humanitarian relief in the devastated area, and the governmental agency or nonprofit organization accepts the employee's offer of volunteer services((.)); or

     (d) The employee is a victim of domestic violence, sexual assault, or stalking as defined in RCW 41.04.655.

     (2) The illness, injury, impairment, condition, call to service, or emergency volunteer service, or consequence of domestic violence, sexual assault, or stalking 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) Compensatory time, recognition leave as described in WAC 357-31-565, personal holiday, accrued vacation leave, and accrued sick leave if the employee qualifies under subsection (1)(a) of this section; or

     (b) Compensatory time, recognition leave as described in WAC 357-31-565, 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; or

     (c) Compensatory time, recognition leave as described in WAC 357-31-565, personal holiday, and accrued vacation leave if the employee qualifies under (1)(c) or (1)(d) 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.

[Statutory Authority: Chapter 41.06 RCW. 08-07-063, § 357-31-390, filed 3/17/08, effective 4/18/08; 07-17-126, § 357-31-390, filed 8/20/07, effective 9/20/07; 05-08-139, § 357-31-390, filed 4/6/05, effective 7/1/05.]

     (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.

     (3) For employees seeking shared leave under WAC 357-31-390 (1)(c), proof of acceptance of an employee's offer to volunteer for either a governmental agency or a nonprofit organization during a declared state of emergency.

     (4) For employees seeking shared leave under WAC 357-31-390 (1)(d), the employer may require that the request be supported by documentation. An employee may satisfy the verification requirement by providing the employer with one or more of the following:

     (a) A police report indicating that the employee was a victim of domestic violence, sexual assault, or stalking;

     (b) A court order protecting or separating the employee from the perpetrator of the act of domestic violence, sexual assault, or stalking;

     (c) Evidence from the court or prosecuting attorney that the employee appeared or is scheduled to appear in court in connection with an incident of domestic violence, sexual assault, or stalking;

     (d) An employee's written statement that the employee is a victim of domestic violence, sexual assault, or stalking; or

     (e) Documentation that the employee is a victim of domestic violence, sexual assault, or stalking, from any of the following persons from whom the employee or employee's family member sought assistance in addressing the domestic violence, sexual assault, or stalking: An advocate for victims of domestic violence, sexual assault, or stalking; an attorney; a member of the clergy; or a medical or other professional.

[Statutory Authority: Chapter 41.06 RCW. 07-17-126, § 357-31-405, filed 8/20/07, effective 9/20/07; 05-08-139, § 357-31-405, filed 4/6/05, effective 7/1/05.]

[Statutory Authority: Chapter 41.06 RCW. 08-07-063, § 357-31-435, filed 3/17/08, effective 4/18/08; 05-08-139, § 357-31-435, filed 4/6/05, effective 7/1/05.]

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