WSR 02-08-072

PERMANENT RULES

EMPLOYMENT SECURITY DEPARTMENT


[ Filed April 2, 2002, 3:37 p.m. ]

Date of Adoption: March 15, 2002.

Purpose: The rules codify and clarify the department's policies regarding the eligibility for unemployment benefits of claimants who are able to work less than full-time, or who leave work, due to a disabling condition. The rules also clarify the requirements such claimants must meet to maintain eligibility for unemployment benefits.

Citation of Existing Rules Affected by this Order: Repealing WAC 192-16-021.

Statutory Authority for Adoption: RCW 50.12.010, 50.12.040, 50.20.010.

Adopted under notice filed as WSR 01-21-123 on October 24, 2001.

Changes Other than Editing from Proposed to Adopted Version: Language added to WAC 192-150-060 clarifying that the claimant's notification to the employer of the disability must include any known work-related restrictions that result from the disability.

Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 0, Amended 0, Repealed 0.

Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.

Number of Sections Adopted on the Agency's Own Initiative: New 3, Amended 0, Repealed 1.

Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 3, Amended 0, Repealed 1.

Number of Sections Adopted Using Negotiated Rule Making: New 0, Amended 0, Repealed 0; Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 3, Amended 0, Repealed 1.
Effective Date of Rule: Thirty-one days after filing.

April 1, 2002

Dr. Sylvia P. Mundy

Commissioner


NEW SECTION
WAC 192-150-060   Leaving work because of disability -- Notice to employer -- RCW 50.20.050 (2)(b).   (1) If you leave work because of a disability you must notify your employer about your disabling condition before the date you leave work or begin a leave of absence. Notice to the employer shall include any known restrictions on the type or hours of work you may perform.

(2) Any restrictions on the type or hours of work you may perform must be supported by a physician's statement or by the terms of a collective bargaining agreement or individual hiring contract.

(3) Nothing in unemployment insurance law requires your employer to offer you alternative suitable work when you have a disability, or modify your duties so that you can perform your current job. However, any offer from your employer of other suitable work must be made prior to the date you leave work or begin a leave of absence. You are not required to request alternative work from your employer to be found available for work.

(4) If your employer offers you alternative work or otherwise offers to accommodate your disability, you must demonstrate good cause to refuse the offer. This may include, but is not limited to, information from your physician that the accommodation offered by your employer was inadequate to reasonably accommodate your medical condition, or information demonstrating that the alternative work offered you by your employer was not suitable.

(5) If you refuse an offer of work from any employer after your job separation or after beginning a leave of absence, the department will determine whether you refused an offer of suitable work as provided in RCW 50.20.080.

(6) If you are on a leave of absence due to your disability, you must promptly request reemployment from your employer when you are again able to return to work.

(7) This section also applies to individuals on a leave of absence because of a pregnancy-related disability.

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CHAPTER 192-170

AVAILABILITY FOR WORK
NEW SECTION
WAC 192-170-050   Suitable work factors -- RCW 50.20.100 and RCW 50.20.110.   (1) Physical fitness. In determining whether work is suitable as defined by RCW 50.20.100 and RCW 50.20.110, the department will consider whether you have a disability that prevents you from performing the essential functions of the job without a substantial risk to your health or safety.

(a) For purposes of this section, the term "disability" means a sensory, mental, or physical condition that:

(i) Is medically recognizable or diagnosable;

(ii) Exists as a record or history; and

(iii) Substantially limits the proper performance of your job.

(b) The department may determine in individual circumstances that less than full-time work is suitable if:

(i) The disability prevents you from working the number of hours that are customary to the occupation;

(ii) You are actively seeking work for the occupation and hours you have the ability to perform; and

(iii) The restriction on the number of hours you can work, the essential functions you can perform, and the occupations you are seeking does not substantially limit your employment prospects within your general area.

(c) To be considered available for suitable work, you must be available for employment in an occupation in keeping with your prior work experience, education, or training. If such employment is not available in your general area, you must be willing to accept any employment which you have the physical or mental ability to perform.

(d) Disabilities resulting from pregnancy will be treated the same as other disabilities, except that the department will also consider the risk to your pregnancy when deciding whether work is suitable.

(e) The department will require verification from a physician of your disability, including:

(i) The restrictions on the tasks or work-related functions you can perform;

(ii) The restrictions on the number of hours you can work, if any;

(iii) The expected duration of the disability and resulting work restrictions; and

(iv) The types of tasks or work-related functions you are able to perform with this disability, if known by the physician.

(2) Definitions. For the purposes of this chapter:

(a) "General area" means an individual's labor market area and includes the geographic area within which an individual would customarily seek work in a given occupation.

(b) "Physician" means a person licensed to practice one or more of the following professions: Medicine and surgery (including, but not limited to, psychiatry); osteopathic medicine and surgery; chiropractic; naturopathic medicine; podiatry.

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NEW SECTION
WAC 192-180-012   Requirements of individuals who leave work due to illness or disability.   If you leave work because of your illness or disability:

(1) To be eligible for unemployment benefits, you must meet the job search requirements described in RCW 50.20.240; and

(2) The department will provide you with a directive that lists the job search requirements you must meet to maintain your eligibility for benefits. These job search requirements will not be more stringent than those imposed on claimants who are not disabled.

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REPEALER

     The following section of the Washington Administrative Code is repealed:
WAC 192-16-021 Interpretive regulations -- Suitable work factors -- RCW 50.20.100

Washington State Code Reviser's Office