WSR 09-20-105



[ Filed October 7, 2009, 9:58 a.m. ]

Original Notice.

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

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

Hearing Location(s): Department of Personnel, 600 South Franklin, Olympia, WA, on November 12, 2009, at 8:30 a.m.

Date of Intended Adoption: November 12, 2009.

Submit Written Comments to: Connie Goff, Department of Personnel, P.O. Box 47500, e-mail, fax (360) 586-4694, by November 5, 2009. FOR DOP TRACKING PURPOSES PLEASE NOTE ON SUBMITTED COMMENTS "FORMAL COMMENT."

Assistance for Persons with Disabilities: Contact department of personnel by November 5, 2009, TTY (360) 753-4107 or (360) 586-8260.

Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: 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.

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:

Name of Agency Personnel Responsible for Drafting: Kristie Wilson, 521 Capitol Way South, (360) 664-6408; Implementation and Enforcement: Department of personnel.

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.

October 6, 2009

Eva N. Santos



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.]

Washington State Code Reviser's Office