Original Notice.

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

     Title of Rule and Other Identifying Information: WAC 357-31-215 When may vacation leave be accumulated above the maximum two hundred forty hours?

     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: The following proposed rule modification clarifies when the statement of necessity must be submitted and clarifies the existing example.

     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

     (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 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), employees may also accumulate vacation leave in excess of ((two hundred forty (240))) 240 hours as follows:

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

     (b) Leave accumulated above ((two hundred forty hours)) 240 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) ((Any leave accumulated above two hundred forty hours without a statement of necessity between anniversary dates must not, regardless of circumstances, be deferred by the employer by a statement of necessity as described in (1) above.)) A statement of necessity, as described in (1) above, 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 hours as of the date of the statement of necessity cannot be deferred regardless of circumstances. For example:

     ((On June 15, 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 15, the employee's vacation leave balance is 260 hours. The employee accrues 10 hours monthly and his/her anniversary date is October 16. If a statement of necessity is filed in June, his/her leave accrual for the four months between June and October will be deferred and not lost as long the employee uses those 40 deferred hours by his/her next anniversary date (October 16 of the following year). The hours of excess vacation leave the employee has on June 15 (20 hours) will not be deferred and will be lost if not used by the approaching anniversary date (October 16 of the present year).)) 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 15, the employee's vacation leave balance is 260 hours.
•	The employee accrues 10 hours monthly.
•	The employee's anniversary date is October 16.

     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 the employee uses the deferred hours by their next anniversary date (October 16 of the following year).

     The 20 hours of excess vacation leave the employee had on June 15 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. 05-08-137, § 357-31-215, filed 4/6/05, effective 7/1/05.]

     Reviser's note: RCW 34.05.395 requires the use of underlining and deletion marks to indicate amendments to existing rules. The rule published above varies from its predecessor in certain respects not indicated by the use of these markings.

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