WSR 14-02-103

PROPOSED RULES

OFFICE OF

FINANCIAL MANAGEMENT

[Filed December 31, 2013, 3:03 p.m.]

Original Notice.

Proposal is exempt under RCW 34.05.310(4) or 34.05.330(1).

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 357-31-530 Under the Family and Medical Leave Act of 1993, how is an eligible employee defined?

Hearing Location(s): Office of Financial Management (OFM), Capitol Court Building, 1110 Capitol Way South, Suite 120, Conference Room 110, Olympia, WA 98501, on February 13, 2014, at 8:30 a.m.

Date of Intended Adoption: February 20, 2014.

Submit Written Comments to: Kristie Wilson, OFM, P.O. Box 47500, e-mail Kristie.wilson@ofm.wa.gov, fax (360) 586-4694, by February 6, 2014. For OFM tracking purposes, please note on submitted comments "FORMAL COMMENT."

Assistance for Persons with Disabilities: Contact OFM by February 6, 2014, TTY (360) 753-4107 or (360) 586-8260.

Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: In January 2008 Congress passed the National Defense Authorization Act (NDAA) which added Family and Medical Leave Act coverage for Military Exigency Leave and Service Member Caregiver Leave. The Department of Labor (DOL), already in the process of revising their regulations, added these changes to new regulations which came out in January 2009. Then in October 2009, congress passed the 2010 NDAA which made further changes to Military Exigency Leave and Service Member Caregiver Leave. DOL's new regulations reflect the changes from the second act passed by congress. These changes were effective March 8, 2013. We are proposing the following rule changes to incorporate the new regulations that became effective March 8, 2013.

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 Agency Personnel Responsible for Drafting: Kristie Wilson, 400 Insurance Building, (360) 902-0483.

No small business economic impact statement has been prepared under chapter 19.85 RCW.

A cost-benefit analysis is not required under RCW 34.05.328.

January 2, 2014

[December 31, 2013]

Roselyn Marcus

Assistant Director for

Legal and Legislative Affairs

AMENDATORY SECTION (Amending WSR 09-17-056 and 09-18-113, filed 8/13/09 and 9/2/09, effective 12/3/09)

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 (FMLA) of 1993 (29 U.S.C. 2601 et seq.) and its implementing rules, 29 C.F.R. 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 U.S.C. 2601 et seq.) and its implementing rules, 29 C.F.R. Part 825) arising from the fact that the employee's spouse, child of any age, or parent is on covered active duty or has been notified of pending call to covered active duty in the armed forces ((in support of a contingency operation)).

(i) ((This)) Subsection (1)(d) 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)) or regular armed forces.

(ii) ((This section)) Subsection (1)(d) only applies to federal calls to active duty and the deployment must be to a foreign country.

(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, "covered service member" is:

(i) A current member of the armed forces, including National Guard or Reserves, who is undergoing medical treatment, recuperation, or therapy, is otherwise in outpatient status, or is otherwise on the temporary disability retired list for a serious injury or illness; or

(ii) A covered veteran who is undergoing medical treatment, recuperation, or therapy, for a serious injury or illness. A covered veteran is one who was a member of the armed forces, including National Guard or Reserves, and was discharged or released under conditions other than dishonorable at any time during the five-year period prior to the first date the eligible employee takes FMLA leave to care for the covered veteran.

(b) 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)):

(i) In the case of a current member of the armed forces, including a member of the National Guard or Reserves, an illness or injury incurred by the covered service member in the line of duty while on active duty in the armed forces or that existed before the beginning of the member's active duty and was aggravated by service in the line of duty while on active duty in the armed forces and that may render the member medically unfit to perform the duties of the member's office, grade, rank, or rating; and

(ii) In the case of a covered veteran an illness or injury that was incurred by the member in the line of duty while on active duty in the armed forces (or existed before the beginning of the member's active duty and was aggravated by service in the line of duty while on active duty in the armed forces) and manifested itself before or after the member became a veteran and meets one of the four criteria outlined in 29 C.F.R. 825.102.

(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. With respect to leave to care for a covered service member in subsection (2) of this section, higher education institutions must measure the twelve-month period forward from the day the leave begins regardless of what method is used for other FMLA purposes.

AMENDATORY SECTION (Amending WSR 11-19-091, filed 9/20/11, effective 10/24/11)

WAC 357-31-530 Under the Family and Medical Leave Act of 1993, how is an eligible employee defined?

In accordance with 29 C.F.R. Part 825, an eligible employee is an employee who has worked for the state for at least twelve months and for at least one thousand two hundred fifty hours during the previous twelve-month period. Paid time off such as vacation leave, sick leave, temporary salary reduction leave, ((the)) personal holiday, compensatory time off, or shared leave and unpaid leave is not counted towards the one thousand two hundred and fifty hour eligibility requirement.