WSR 11-24-061

PROPOSED RULES

DEPARTMENT OF

LABOR AND INDUSTRIES

[ Filed December 6, 2011, 8:38 a.m. ]

Original Notice.

Preproposal statement of inquiry was filed as WSR 11-15-067.

Title of Rule and Other Identifying Information: Chapter 296-16A WAC, Washington stay-at-work program, WAC 296-16A-010 What is the stay-at-work program?, 296-16A-020 I am an employer insured with the department -- How can I qualify for stay-at-work reimbursements?, 296-16A-030 What can I be reimbursed for?, 296-16A-040 What if my worker has more than one claim or other qualifying employers?, and 296-16A-050 How do I apply for reimbursements?

Hearing Location(s): L&I Headquarters, Room S117, 7273 Linderson Way S.W., Tumwater, WA 98501, on January 10, 2012, at 10:00 a.m.; at the Center Place Event Center, 2426 North Discovery Place, Spokane Valley, WA 99216, on January 12, 2012, at 1:00 p.m.; at the Red Lion at the Quay, 100 Columbia Street, Vancouver, WA 98660, on January 13, 2012, at 10:00 a.m.; and at the Shoreline Conference Center, 18560 1st Avenue N.E., Shoreline, WA 98155, on January 17, 2012, at 10:00 a.m.

Date of Intended Adoption: February 27, 2012.

Submit Written Comments to: Richard Bredeson, P.O. Box 44140, Olympia, WA 98504-4140, e-mail Richard.Bredeson@Lni.wa.gov, fax (360) 902-4988, by 5:00 p.m., January 17, 2012.

Assistance for Persons with Disabilities: Contact office of information and assistance by January 3, 2012, TTY (360) 902-5797.

Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: The Washington legislature established a new stay-at-work program for the department to administer effective June 15, 2011. The law authorizes reimbursements to employers who provide transitional or light duty work to injured workers unable to return to their regular job because of work restrictions related to their injury. The new law allows L&I to reimburse employers for some costs without negatively impacting their experience rating.

These new rules will allow the department to administer the Washington stay-at-work program efficiently and equitably to all employers. It ensures the requirements for participating in the program are clear and understandable, and reimbursements are appropriate.

Reasons Supporting Proposal: Employer participation in reimbursements is voluntary. The program will not negatively impact an employer because the costs of reimbursements are expected to be offset by savings due to reduced benefit costs.

Statutory Authority for Adoption: RCW 51.04.020 and 51.32.090.

Statute Being Implemented: RCW 51.32.090.

Rule is not necessitated by federal law, federal or state court decision.

Name of Proponent: Department of labor and industries, governmental.

Name of Agency Personnel Responsible for Drafting: Richard Bredeson, Tumwater, Washington, (360) 902-4985; Implementation: Doug Stewart, Tumwater, Washington, (360) 902-4826; and Enforcement: Beth Dupre, Tumwater, Washington, (360) 902-4209.

No small business economic impact statement has been prepared under chapter 19.85 RCW. When enactment of new state law requires and directs new regulations, these regulations are exempt from a small business economic statement.

However, the program isn't expected to have an adverse impact on any business because:


Participation in the Washington stay-at-work program reimbursements is voluntary, and
The costs for reimbursing participating employers will be offset by savings due to reduced benefit costs.

A cost-benefit analysis is not required under RCW 34.05.328. Since the content is directed by statute, neither a cost-benefit analysis, nor a rule implementation plan, is required. However, the department expects no adverse impact to employers' rates or to the state fund from the stay-at-work program.

December 6, 2011

Judy Schurke

Director

OTS-4399.1

Chapter 296-16A WAC

STAY-AT-WORK PROGRAM


NEW SECTION
WAC 296-16A-010   What is the stay-at-work program?   The stay-at-work program encourages employers insured with the department to bring their injured workers back to work quickly and safely. If eligible, we will reimburse an employer for up to half the basic gross wages the employer paid to the injured worker during light duty or transitional work, and for the cost of instruction, tools, and clothing the worker needed to perform the approved light duty or transitional work. WAC 296-16A-020 through 296-16A-050 are the rules for employers insured with the department who are requesting stay-at-work reimbursements.

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NEW SECTION
WAC 296-16A-020   I am an employer insured with the department -- How can I qualify for stay-at-work reimbursements?   To qualify for stay-at-work reimbursements:

(1) You must be the "employer at the time of injury" or "employer of injury" on a claim. You are the employer at the time of injury if the worker was injured while working for you. For occupational disease claims, you are the employer if your experience rating has been or will be affected by the claim or you were the last employer to employ the worker when the claim was filed (even if the claim will not affect your experience rating).

(2) Your worker must be eligible for temporary total disability or temporary partial disability benefits to be eligible; your worker's attending provider must have restricted your worker from performing his or her usual job.

(3) You must give the attending provider and your worker a description of the light duty or transitional work you would like your worker to do, and the attending provider must, in writing, release your worker to do that job.

(4) You must not ask your worker to perform work other than that approved by the attending provider.

(5) You must incur an actual expense before you request reimbursement. We cannot pay you in advance.

(6) We cannot reimburse you for stay-at-work expenses incurred before June 15, 2011.

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NEW SECTION
WAC 296-16A-030   What can I be reimbursed for?   If the attending provider restricts your worker from performing his or her usual job, you may ask the attending provider to release your worker to perform a light duty or transitional job for you. If the attending provider does so, you may employ your worker consistent with the attending provider's release. You can then receive reimbursement for some of the costs associated with that employment:

(1) Wages: Fifty percent of basic gross wages you paid your worker, for up to sixty-six days actually worked in a twenty-four month period, up to a maximum of ten thousand dollars total wage reimbursement per claim.

(a) Basic gross wages means the basic hourly wages or salary. Basic gross wages do not include tips, commissions, bonuses, board, housing, fuel, health care, dental care, vision care, per diem, reimbursements for work-related expenses, or any other payments.

(b) A partial day worked counts as one day. Example: Your worker works a four-hour shift. This counts as one day out of the sixty-six.

(c) If your worker's single shift spans two calendar days that shift counts as one day. Example: Your worker's single shift starts at 10:00 p.m., November 14th, and continues until 6:30 a.m., November 15th. This counts as one day out of the sixty-six.

(d) The sixty-six days do not have to be consecutive.

(e) If the light duty or transitional work lasts more than sixty-six days, you may choose which sixty-six days to seek reimbursement for.

(f) You may not be reimbursed more than once for the same days worked. For example, if your worker has two active claims you cannot be reimbursed wage subsidies for the same dates on both claims.

(g) We cannot reimburse you for dates you employed your worker that are more than twenty-four months after the earliest day we have already reimbursed on the claim. Example: The first work date for which you were reimbursed was February 1, 2012. Your twenty-four month eligibility period ends January 31, 2014.

(h) You must submit your request for reimbursement within one year of the date the work was performed.

(2) Training costs you incurred to enable your worker to perform the light duty or transitional work, up to one thousand dollars per claim:

(a) Training expenses include the purchase of books or materials, or payment to someone outside your organization to provide training (tuition or fees).

(b) We will not reimburse you for the value of "in-house" training provided by your organization.

(c) You must submit your request for reimbursement within one year of the date of purchase.

(3) Clothing you provided your worker, necessary to perform the light duty or transitional work, up to four hundred dollars per claim:

(a) If you normally provide such clothing to your workers, we cannot reimburse you.

(b) When the work ends, the clothing belongs to your worker.

(c) You must submit your request for reimbursement within one year of the date of purchase.

(4) Tools and equipment you purchased to enable your worker to perform the light duty or transitional work, up to two thousand five hundred dollars per claim:

(a) If you normally provide such tools and equipment to your workers, we cannot reimburse you.

(b) When the work ends, the tools and equipment belong to the employer.

(c) You must submit your request for reimbursement within one year of the date of purchase.

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NEW SECTION
WAC 296-16A-040   What if my worker has more than one claim or other qualifying employers?   (1) We will reimburse you only once for an incurred expense: If your worker has more than one claim, we will not reimburse you more than once for the same wages paid or training, clothing, or equipment provided.

(2) If we receive valid reimbursement requests from different employers for the same claim, we will pay the requests in the order received by the department up to the per claim limits.

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NEW SECTION
WAC 296-16A-050   How do I apply for reimbursements?   (1) To request reimbursements, fill out the appropriate stay-at-work reimbursement form we will supply you that is available on our web site. One form is for wage reimbursement and there is a separate form for all other reimbursements. Once you have completed the form or forms, mail or fax them to us at the address or fax number provided on the form.

(2) For all stay-at-work reimbursements, in addition to the completed forms, we also need:

(a) Documentation from the attending provider restricting your worker from his or her usual work for the dates you are requesting reimbursement;

(b) A written description of the light duty or transitional work that enables the attending provider to relate the physical activities of the job to your worker's restrictions;

(c) The attending provider's written approval releasing the worker to do that job.

(3) For wage reimbursement, we need documentation such as payroll records and time cards that verify the dates worked and basic gross wages paid.

(4) For tools and equipment, clothing, and training, we need itemized receipts showing your expenses.

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Washington State Code Reviser's Office