WSR 09-17-056

PERMANENT RULES

DEPARTMENT OF PERSONNEL


[ Filed August 13, 2009, 9:50 a.m. , effective September 16, 2009 ]


Effective Date of Rule: September 16, 2009.

Purpose: E2SSB 5688 passed during the 2009 legislative session. This bill states that agencies shall amend their rules to grant or impose all privileges, immunities, rights, benefits, or responsibilities granted or imposed by statute to an individual because they are a spouse in a marital relationship are to be granted or imposed on equivalent terms to an individual because that individual is in a state registered domestic partnership.

Citation of Existing Rules Affected by this Order: Amending WAC 357-31-330, 357-31-373, 357-31-525, 357-31-395, 357-31-567, 357-46-060, 357-58-475, 357-31-535, 357-31-520, and 357-31-230.

Statutory Authority for Adoption: Chapter 41.06 RCW.

Adopted under notice filed as WSR 09-14-129 on July 1, 2009.

Changes Other than Editing from Proposed to Adopted Version: WAC 357-31-525 added language to include subsequent regulations for FMLA eligibility. WAC 357-31-520 and 357-31-535 changed language to clarify FMLA for a registered domestic partner is not counted towards the twelve week FMLA entitlement.

Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 0, Amended 10, Repealed 0.

Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.

Number of Sections Adopted on the Agency's Own Initiative: New 0, Amended 0, Repealed 0.

Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, Amended 0, Repealed 0.

Number of Sections Adopted Using Negotiated Rule Making: New 0, Amended 0, Repealed 0; Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 0, Amended 10, Repealed 0.

Date Adopted: August 13, 2009.

Eva N. Santos

Director

OTS-2472.2


AMENDATORY SECTION(Amending WSR 09-03-013, filed 1/9/09, effective 2/13/09)

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, registered domestic partner, 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 may be subject to verification that the condition exists.

(3) 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 RCW 49.76.020. An employer may require the request for leave under this section be supported by verification in accordance with WAC 357-31-730.

(4) In accordance with WAC 357-31-373, an employee must be granted the use of accrued compensatory time to be with a spouse or registered domestic partner who is a member of the armed forces of the United States, National Guard, or reserves after the military spouse or registered domestic partner has been notified of an impending call or order to active duty, before deployment, or when the military spouse or registered domestic partner 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. 09-03-013, 357-31-230, filed 1/9/09, effective 2/13/09; 08-15-043, 357-31-230, filed 7/11/08, effective 10/1/08; 05-08-137, 357-31-230, filed 4/6/05, effective 7/1/05.]


AMENDATORY SECTION(Amending WSR 09-03-014, filed 1/9/09, effective 2/13/09)

WAC 357-31-330   For what reasons may an employer grant leave without pay?   Leave without pay may be allowed for any of the following reasons in accordance with the employer's leave policy:

(1) For any reason leave with pay may be granted, as long as the conditions for leave with pay are met;

(2) Educational leave;

(3) Leave for government service in the public interest;

(4) Military leave of absence as required by WAC 357-31-370;

(5) Parental leave as required by WAC 357-31-460;

(6) Family care emergencies as required by WAC 357-31-295;

(7) Bereavement or condolence;

(8) Absence due to inclement weather as provided in WAC 357-31-255;

(9) To accommodate annual work schedules of employees occupying cyclic year positions as specified in WAC 357-19-295;

(10) Serious health condition of an eligible employee's child, spouse, registered domestic partner, or parent as required by WAC 357-31-525;

(11) Leave taken voluntarily to reduce the effect of an employer's layoff;

(12) Leave that is authorized in advance by the appointing authority as part of a plan to reasonably accommodate a person of disability; or

(13) Employees receiving time loss compensation.

[Statutory Authority: Chapter 41.06 RCW. 09-03-014, 357-31-330, filed 1/9/09, effective 2/13/09; 05-08-138, 357-31-330, filed 4/6/05, effective 7/1/05.]

OTS-2469.5


AMENDATORY SECTION(Amending WSR 08-15-043, filed 7/11/08, effective 10/1/08)

WAC 357-31-373   Is an employee whose spouse or registered domestic partner is a member of the armed forces of the United States entitled to take leave from work when the military spouse or registered domestic partner has been called to active duty or when the military spouse or registered domestic partner is on leave from deployment?   (1) During a period of military conflict, an employee who is a spouse or registered domestic partner 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 or registered domestic partner has been notified of an impending call or order to active duty and before deployment or when the military spouse or registered domestic partner 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 or registered domestic partner receiving official notice of an impending call or order to active duty; or

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

[Statutory Authority: Chapter 41.06 RCW. 08-15-043, 357-31-373, filed 7/11/08, effective 10/1/08.]


AMENDATORY SECTION(Amending WSR 09-11-066, filed 5/14/09, effective 6/16/09)

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, and additional amendments and subsequent regulations 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;

(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. 09-11-066, 357-31-525, filed 5/14/09, effective 6/16/09; 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.]


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

WAC 357-31-535   Who designates absences which meet the criteria of the Family and Medical Leave Act?   The employer designates absences which meet the criteria of the Family and Medical Leave Act. Paid or unpaid leave((, excluding compensatory time,)) used for that designated absence must be counted towards the twelve weeks of the Family and Medical Leave Act entitlement.

Because the Family and Medical Leave Act of 1993 (29 USC 2601 et seq) does not recognize registered domestic partners, an absence to care for an employee's registered domestic partner is not counted towards the twelve weeks of the Family and Medical Leave Act entitlement.

[Statutory Authority: Chapter 41.06 RCW. 05-08-140, 357-31-535, filed 4/6/05, effective 7/1/05.]


AMENDATORY SECTION(Amending WSR 09-03-013, filed 1/9/09, effective 2/13/09)

WAC 357-31-567   When must an employer grant the use of recognition leave?   (1) An employee's request to use recognition leave must be approved under the following conditions:

(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 RCW 49.76.020. 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 or registered domestic partner who is a member of the Armed Forces of the United States, National Guard, or Reserves after the military spouse or registered domestic partner has been notified of an impending call or order to active duty, before deployment, or when the military spouse or registered domestic partner is on leave from deployment.

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

[Statutory Authority: Chapter 41.06 RCW. 09-03-013, 357-31-567, filed 1/9/09, effective 2/13/09; 08-15-043, 357-31-567, filed 7/11/08, effective 10/1/08.]

OTS-2475.1


AMENDATORY SECTION(Amending WSR 05-08-139, filed 4/6/05, effective 7/1/05)

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, registered domestic partner, 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.

[Statutory Authority: Chapter 41.06 RCW. 05-08-139, 357-31-395, filed 4/6/05, effective 7/1/05.]

OTS-2519.3


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

WAC 357-31-520   How does the Family and Medical Leave Act of 1993 and the family ((Care)) leave law interact with the civil service rules?   Benefits provided through state laws and civil service rules must not be diminished or withheld in complying with the Family and Medical Leave Act of 1993 (FMLA).

Washington's family leave law (chapter 49.78 RCW) generally is similar to and runs concurrently with the federal FMLA for those provisions outlined in WAC 357-31-525 (1)(a) through (c) but also allows leave to be taken for the care of an employee's registered domestic partner with a serious health condition. However, Washington's family leave law does not address exigency leave, described in WAC 357-31-525 (1)(d), or leave for a covered service member, described in WAC 357-31-525(2). Therefore, an employer is not required to provide exigency leave or leave for a covered service member for a registered domestic partner.

Because the FMLA does not recognize registered domestic partners, an absence to care for an employee's registered domestic partner is not counted towards the twelve weeks of the FMLA entitlement described in WAC 357-31-525. For example:

If an employee uses twelve weeks of leave to care for their registered domestic partner during a twelve-month period, and no other FMLA leave was used, the employee is still entitled to his or her full twelve-week FMLA entitlement during the same twelve-month period, as the leave used was provided for a purpose not covered by FMLA; however, if an employee uses twelve weeks of leave to care for their parent or for another FMLA qualifying reason, then during that same twelve-month period the employer would not be required to provide additional leave under Washington's family leave law to care for the employee's registered domestic partner because the twelve-week entitlement under FMLA and Washington's family leave law has been exhausted.

[Statutory Authority: Chapter 41.06 RCW. 05-08-140, 357-31-520, filed 4/6/05, effective 7/1/05.]

OTS-2473.1


AMENDATORY SECTION(Amending WSR 05-12-077, filed 5/27/05, effective 7/1/05)

WAC 357-46-060   Does a veteran receive any preference in layoff?   (1) An eligible veteran receives a preference by having his/her seniority increased. This is done by adding the eligible veteran's total active military service, not to exceed five years, to his/her unbroken service date.

(2) An eligible veteran is defined as any permanent employee who:

(a) Has one or more years in active military service in any branch of the armed forces of the United States or who has less than one year's service and is discharged with a disability incurred in the line of duty or is discharged at the convenience of the government; and

(b) Has received, upon termination of such service:

(i) An honorable discharge;

(ii) A discharge for physical reasons with an honorable record; or

(iii) A release from active military service with evidence of service other than that for which an undesirable, bad conduct, or dishonorable discharge is given.

(3) "An eligible veteran" does not include any person who as a veteran voluntarily retired with twenty or more years' active military service and has military retirement pay in excess of five hundred dollars per month.

(4) The surviving spouse or surviving registered domestic partner of an eligible veteran is entitled to veteran's seniority preference for up to five years as outlined in subsection (1) and (2) of this section regardless of whether the veteran had at least one year of active military service.

[Statutory Authority: Chapter 41.06 RCW. 05-12-077, 357-46-060, filed 5/27/05, effective 7/1/05; 04-18-114, 357-46-060, filed 9/1/04, effective 7/1/05.]

OTS-2474.1


AMENDATORY SECTION(Amending WSR 07-23-011, filed 11/8/07, effective 12/11/07)

WAC 357-58-475   Does a veteran receive any preference in layoff?   (1) An eligible veteran receives a preference by having his/her seniority increased. This is done by adding the eligible veteran's total active military service, not to exceed five years, to his/her unbroken service date.

(2) An eligible veteran is defined as any permanent employee who:

(a) Has one or more years in active military service in any branch of the armed forces of the United States or who has less than one year's service and is discharged with a disability incurred in the line of duty or is discharged at the convenience of the government; and

(b) Has received, upon termination of such service:

(i) An honorable discharge;

(ii) A discharge for physical reasons with an honorable record; or

(iii) A release from active military service with evidence of service other than that for which an undesirable, bad conduct, or dishonorable discharge is given.

(3) "An eligible veteran" does not include any person who as a veteran voluntarily retired with twenty or more years' active military service and has military retirement pay in excess of five hundred dollars per month.

(4) The surviving spouse or surviving registered domestic partner of an eligible veteran is entitled to veteran's seniority preference for up to five years as outlined in subsection (1) and (2) of this section regardless of whether the veteran had at least one year of active military service.

[Statutory Authority: Chapter 41.06 RCW. 07-23-011, 357-58-475, filed 11/8/07, effective 12/11/07; 05-12-071, 357-58-475, filed 5/27/05, effective 7/1/05.]

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