[Filed October 2, 2020, 4:29 p.m.]
Title of Rule and Other Identifying Information: WAC 357-28-190 When must an employee receive shift premium?, 357-31-130 When may an employee use accrued sick leave?, 357-31-215 When may vacation leave be accumulated above the maximum two hundred forty hours?, 357-46-064 Are there any limits to temporary layoff?, and 357-46-066 What is the notice requirement to temporarily layoff an employee?
Hearing Location(s): On November 12, 2020, at 8:30 a.m., at the Office of Financial Management, audio conference only, Dial-in (888) 285-8919, Enter pin: 8101730, Code (if asked): 415.
Date of Intended Adoption: November 19, 2020.
Submit Written Comments to: Brandy Chinn, Office of Financial Management, P.O. Box 47500, Olympia, WA 98501, email Brandy.Chinn@ofm.wa.gov, fax 360-586-4694, by November 5, 2020.
Assistance for Persons with Disabilities: Contact office of financial management, TTY 711 or 1-800-833-6384, by November 5, 2020.
Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: To state that if an employee voluntarily requests to work a shift in which the majority of the hours worked are between 6:00 p.m. and 6:00 a.m. and/or when an employee is scheduled to work a shift which is split with a minimum of four intervening hours not worked will not be eligible for shift premium; to allow an employee to request a statement of necessity to preserve leave acquired over two hundred forty hours between February 29, 2020, and the filing of the statement of necessity until the expiration of Proclamation 20-05 or any amendment thereto; to expand the reasons in which an employee may use accrued sick leave due to the novel coronavirus disease 2019 (COVID-19); to extend the timeframe in which a nonrepresented employee may be furloughed in a calendar year from thirty to sixty days; and to allow an employer the ability to provide less than a seven days' notice period if urgent budget or operational issues are present for temporary layoffs.
Reasons Supporting Proposal: To align Title 357 WAC with Governor Jay Inslee's issued Proclamation 20-05 which declares a State of Emergency in all counties in the state of Washington as a result of the outbreak of COVID-19. The governor further declared that state agencies and departments are directed to use state resources and to do everything reasonably possible to assist affected political subdivisions in an effort to respond to and recover from the outbreak. The worldwide outbreak of COVID-19 and the effects of its extreme risk of person-to-person transmission throughout the United States and Washington state significantly impacts the life and health of our people, as well as the economy of Washington state, and is a public disaster that affects life, health, property or the public peace.
Statutory Authority for Adoption: Chapter 41.06
Statute Being Implemented: Chapter 41.06
Rule is not necessitated by federal law, federal or state court decision.
Name of Proponent: [Not supplied by agency], governmental.
Name of Agency Personnel Responsible for Drafting, Implementation, and Enforcement: Brandy Chinn, 128 10th Avenue, Olympia, WA 98501, 360-407-4141.
A school district fiscal impact statement is not required under RCW 28A.305.135
A cost-benefit analysis is not required under RCW 34.05.328
. Rules are related to internal government operations and are not subject to violation by a nongovernmental party. See RCW 34.05.328
(5)(b)(ii) for exemption.
This rule proposal, or portions of the proposal, is exempt from requirements of the Regulatory Fairness Act because the proposal:
Is exempt under RCW 19.85.025
(3) as the rules relate only to internal governmental operations that are not subject to violation by a nongovernment party.
October 2, 2020
Assistant Director of
Legal and Legislative Affairs
AMENDATORY SECTION(Amending WSR 05-01-205, filed 12/21/04, effective 7/1/05)
WAC 357-28-190When must an employee receive shift premium?
(1) Shift premium at the rate specified in the compensation plan must be paid when:
(a) An employee is scheduled to work a shift in which the majority of hours worked daily or weekly are between 6:00 p.m. and 6:00 a.m.; or
(b) An employee is scheduled to work a shift which is split with a minimum of four intervening hours not worked.
(2) Shift premium must be paid for the entire daily or weekly shift that qualifies under subsection (1) of this section. Additionally, these employees are entitled to shift premium for all hours that the employees work adjoining that evening or night shift.
(3) Shift premium may be paid at a monthly rate as specified in the compensation plan for full time employees regularly assigned to a qualifying shift.
(4) An employee assigned to a shift that qualifies for shift premium pay must receive the same shift premium for authorized periods of paid leave and holidays and for up to five days of a temporary assignment to a shift that does not qualify. Continued payment of shift premium for a temporary assignment exceeding five days is at the discretion of the employer.
(5) Compensation under the provisions of this section must be in accordance with the employer's policy, as approved by the director, for the following individuals:
(a) Employees dispatched to emergency response duty under an incident command system as defined in RCW 38.52.010
(b) Employees of the department of corrections who are in charge of offenders assigned to assist in forest fire suppression and other emergency incidents.
(6) Exceptions to shift premium provisions may be approved by the director.
(7) For higher education employers, shift premium must not apply to police and fire officers where special pay salaries are correlated with a rotating shift in accordance with local practice.
(8) Employees may waive shift premium.
(9) Employees who voluntarily request to work a shift as described in subsection (1)(a) and (b) of this section will not be eligible for shift premium.
AMENDATORY SECTION(Amending WSR 20-06-008, filed 2/20/20, effective 5/1/20)
WAC 357-31-130When may an employee use accrued sick leave?
The employer may require medical verification or certification of the reason for sick leave use in accordance with the employer's leave policy and in compliance with chapter 296-128 WAC.
(1) Employers must allow the use of accrued sick leave under the following conditions:
(a) An employee's mental or physical illness, disability, injury or health condition that has incapacitated the employee from performing required duties; to accommodate the employee's need for medical diagnosis, care or treatment of a mental or physical illness, injury or health condition; or an employee's need for preventive medical care.
(b) By reason of exposure of the employee to a contagious disease when the employee's presence at work would jeopardize the health of others.
(c) When the employee's place of business has been closed by order of a public official for any health-related reason, or when an employee's child's school or place of care has been closed for such reason.
(d) To allow an employee to provide care for a family member with a mental or physical illness, injury or health condition; care of a family member who needs medical diagnosis, care or treatment of a mental or physical illness, injury or health condition; or care for a family member who needs preventive medical care.
(e) For family care emergencies per WAC 357-31-290, 357-31-295, 357-31-300 and 357-31-305.
(f) When an employee is required to be absent from work to care for members of the employee's household or relatives of the employee or relatives of the employee's spouse/registered domestic partner who experience an illness or injury, not including situations covered by subsection (1)(d) of this section.
(i) The employer must approve up to five days of accumulated sick leave each occurrence. Employers may approve more than five days.
(ii) For purposes of this subsection, "relatives" is limited to spouse, registered domestic partner, child, grandchild, grandparent or parent.
(g) When requested as a supplemental benefit while receiving a partial wage replacement for paid family and/or medical leave under Title 50A
RCW as provided in WAC 357-31-248. Leave taken under this subsection may be subject to verification that the employee has been approved to receive benefits for paid family and/or medical leave under Title 50A
(h) 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.
(i) In accordance with WAC 357-31-373, for an employee 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.
(j) When an employee requests to use sick leave for the purpose of parental leave to bond with a newborn, adoptive or foster child for a period up to eighteen weeks. Sick leave for this purpose must be taken during the first year following the child's birth or placement.
(2) Employers may allow the use of accrued sick leave under the following conditions:
(a) For condolence or bereavement;
(b) When an employee is unable to report to work due to inclement weather in accordance with the employer's policy on inclement weather as described in WAC 357-31-255; ((or))
(c) To bond with a newborn, adoptive or foster child for a period beyond eighteen weeks as allowed in subsection (1)(i) of this section. Sick leave for this purpose must be taken during the first year following the child's birth or placement. The total amount of sick leave allowed to be used, beyond subsection (1)(i) of this section must be addressed in the employer's leave policy in accordance with WAC 357-31-100; or
(d) When a child is a family member of an employee or member of an employee's household and the child's school or place of care has been closed while proclamation 20-05, issued February 29, 2020, by the governor and declaring an emergency in the state of Washington, or any amendment thereto, is in effect.
AMENDATORY SECTION(Amending WSR 17-18-028, filed 8/28/17, effective 10/2/17)
WAC 357-31-215When may vacation leave be accumulated above the maximum two hundred forty hours?
There are two circumstances in which vacation leave may be accumulated above the maximum of 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 (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 two hundred forty hours as follows:
(a) An employee may accumulate the vacation leave hours between the time the two hundred forty hours is accrued and his/her next anniversary date of state employment.
(b) Leave accumulated above 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) 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 two hundred forty hours as of the date of the statement of necessity cannot be deferred regardless of circumstances except in accordance with subsection (3) of this section. 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 two hundred sixty hours.
• The employee accrues 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 twenty hours of excess vacation leave the employee had on June 15th are not covered by the statement of necessity.
(3) Beginning February 29, 2020, a statement of necessity, as described in subsection (1) of this section, may be used to preserve leave acquired over two hundred forty hours between February 29, 2020, and the filing of the statement of necessity. This is effective until the expiration of proclamation 20-43, issued February 29, 2020, by the governor and declaring an emergency in the state of Washington, or any amendment thereto, whichever is later.
AMENDATORY SECTION(Amending WSR 16-05-058, filed 2/12/16, effective 3/14/16)
WAC 357-46-064Are there any limits to temporary layoff?
Under the provisions of WAC 357-46-063, an employer may not:
(1) Furlough an employee for more than ((thirty))sixty calendar days in a calendar year; or
(2) Temporarily reduce an employee's regular work schedule to less than twenty hours a week for more than sixty calendar days in a calendar year.
The only exception to these limits is if the temporary layoff is due to the failure of congress to pass a continuing resolution or a federal budget.
AMENDATORY SECTION(Amending WSR 16-05-058, filed 2/12/16, effective 3/14/16)
WAC 357-46-066What is the notice requirement to temporarily layoff an employee?
An employer ((must))will normally provide ((the))an employee seven calendar days' notice of temporary layoff. Employers may provide less than seven calendar days' notice if urgent budget or operational issues are present. Employers must make a reasonable effort to provide as much time as possible for temporary layoff notification. The temporary layoff notice must inform the employee of their status during temporary layoff and the expected duration of the temporary layoff. Notice of temporary layoff may be provided by using alternative methods as described in WAC 357-04-105.
In the event that a temporary layoff is implemented due to the failure of congress to pass a continuing resolution or a federal budget, an employer must provide the employee at least one calendar day's notice of temporary layoff. The temporary layoff notice must inform the employee of their status during temporary layoff. Notice of temporary layoff may be provided by using alternative methods as described in WAC 357-04-105.