WSR 09-08-095

PROPOSED RULES

DEPARTMENT OF PERSONNEL


[ Filed March 31, 2009, 9:41 a.m. ]

Original Notice.

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

Title of Rule and Other Identifying Information: WAC 357-31-525 What is an employee entitled to under the Family and Medical Leave Act of 1993?

Hearing Location(s): Department of Personnel, 2828 Capitol Boulevard, Tumwater, WA, on May 14, 2009, at 8:30 a.m.

Date of Intended Adoption: May 14, 2009.

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 7, 2009. FOR DOP TRACKING PURPOSES PLEASE NOTE ON SUBMITTED COMMENTS "FORMAL COMMENT."

Assistance for Persons with Disabilities: Contact department of personnel by May 7, 2009, 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 type is "military caregiver 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. We modified WAC 357-31-525 to include this type of leave effective June 10, 2008. We are now proposing modifications to clarify the definition of "next of kin" and other clarifications.

The second 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 National Guard or reserves in support of a contingency operation. This provision became effective January 16, 2009. We are proposing modifications to WAC 357-31-525 to address exigency 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.

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.

April 1 [March 31], 2009

Eva N. Santos

Director


AMENDATORY SECTION(Amending WSR 08-11-008, filed 5/9/08, effective 6/10/08)

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

(d) Due to a qualifying exigency (as described in the Family and Medical Leave Act of 1993 and its amendments (29 USC 2601 et seq) and its implementing rules, 29 CFR Part 825) arising from the fact that the employee's spouse, child of any age, or parent is on active duty or has been notified of pending call to active duty in the armed forces in support of a contingency operation.

(i) This subsection only applies if the spouse, child, or parent of the employee is a member of the National Guard or Reserves, and certain retired members of the regular armed forces and retired reserves. This section does not apply if the spouse, child, or parent of the employee is a member of the regular armed forces on active duty.

(ii) This section only applies to federal calls to active duty.

(2) An eligible employee who is the spouse, son, daughter, parent of a child of any age, 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. This twelve-month period begins on the first day leave is taken pursuant to this subsection.

(a) For purposes of this section, "next of kin" with respect to an individual means the nearest blood relative of that individual other than the individual's spouse, parent, or child in the following order of priority:

(i) Blood relatives who have been granted legal custody of the service member;

(ii) Siblings;

(iii) Grandparents;

(iv) Aunts and uncles;

(v) Cousins;

(vi) The service member can designate another blood relative as the "nearest blood relative" and that designation takes precedent over the above list.

(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.

(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. 08-11-008, 357-31-525, filed 5/9/08, effective 6/10/08; 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.]

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.

Washington State Code Reviser's Office