Effective Date of Rule: December 15, 2009.

     Purpose: It has been brought to our attention that the proposed deleted language is being interpreted to mean employees must use excess vacation accrual (EVA) before using justified excess vacation (JEV). EVA is the unprotected vacation leave above two hundred forty hours that is earned between anniversary dates. JEV is the vacation leave that is protected by a statement of necessity. Deletion of this language will help clarify that EVA does not have to be used first.

     Citation of Existing Rules Affected by this Order: Amending WAC 357-31-215.

     Statutory Authority for Adoption: Chapter 41.06 RCW.

      Adopted under notice filed as WSR 09-20-105 on October 7, 2009.

     Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 0, Amended 1, Repealed 0.

     Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.

     Number of Sections Adopted on the Agency's Own Initiative: New 0, Amended 0, Repealed 0.

     Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, Amended 0, Repealed 0.

     Number of Sections Adopted Using Negotiated Rule Making: New 0, Amended 0, Repealed 0;      Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 0, Amended 1, Repealed 0.

     Date Adopted: November 12, 2009.

Eva N. Santos

Director

OTS-2716.3

AMENDATORY SECTION(Amending WSR 09-11-065, filed 5/14/09, effective 6/16/09)

WAC 357-31-215   When may vacation leave be accumulated above the maximum ((240)) two hundred forty hours?   There are two circumstances in which vacation leave may be accumulated above the maximum of ((30)) thirty working days (((240)) two hundred forty 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)) two hundred forty 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) of this section, employees may also accumulate vacation leave in excess of ((240)) two hundred forty hours as follows:

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

     (b) Leave accumulated above ((240)) two hundred forty 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) A statement of necessity, as described in subsection (1) ((above)) of this section, can only defer leave that the employee has not accrued as of the date of the statement of necessity. Any accrued leave in excess of ((240)) two hundred forty hours as of the date of the statement of necessity cannot be deferred regardless of circumstances. For example:

     On June 15th, 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 15th, the employee's vacation leave balance is ((260)) two hundred sixty hours.

     (([•])) • The employee accrues ((10)) ten hours monthly.

     (([•])) • The employee's anniversary date is October 16th.

     Because the employee will not be able to use leave from June 15th through December 15th the employee files a statement of necessity asking to defer the leave accrued during this time. This deferred leave will not be lost as long as the employee uses the deferred hours by their next anniversary date (October 16th of the following year).

     The ((20)) twenty hours of excess vacation leave the employee had on June 15th are not covered by the statement of necessity. ((These hours will not be deferred and will be lost unless they are used before October 16th of the current year.))

[Statutory Authority: Chapter 41.06 RCW. 09-11-065, § 357-31-215, filed 5/14/09, effective 6/16/09; 05-08-137, § 357-31-215, filed 4/6/05, effective 7/1/05.]

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