EMPLOYMENT SECURITY DEPARTMENT
[Filed March 13, 2019, 4:16 p.m.]
Preproposal statement of inquiry was filed as WSR 18-21-003.
Title of Rule and Other Identifying Information: Chapter 192-500 WAC, Definitions: WAC 192-500-110 Week, 192-500-120 Employee fraud, 192-500-130 Nondisclosure, 192-500-140 Willful nondisclosure, 192-500-150 Misrepresentation, 192-500-160 Continued claim, and 192-500-170 Self-employed.
Chapter 192-510 WAC, Assessing and collecting premiums: WAC 192-510-025 What wages are reportable to the department for premium assessment purposes?
Chapter 192-610 WAC, Initial applications for benefits: WAC 192-610-070 Can an employee cancel a claim after it has been submitted to the department?, 192-610-075 Can an employer require an employee to take paid time off in place of paid family or medical leave benefits?, 192-610-080 When should an employee reopen a claim?, and 192-610-085 How should an employee reopen a claim?
Chapter 192-620 WAC, Weekly benefits: WAC 192-620-005 What is the minimum claim duration?, 192-620-010 How should employees request benefit payments?, 192-620-020 What information will the department request from employees when filing for weekly benefits?, and 192-620-025 What happens if an employee is being conditionally paid benefits?
Chapter 192-630 WAC, Claim determinations: WAC 192-630-005 What happens if there is a question regarding whether an employee is qualified for benefits?, 192-630-010 What happens if an interested party does not respond to the department's request for information?, and 192-630-015 How will a determination be made about an employee's eligibility for benefits?
Chapter 192-800 WAC, Practice and procedure: WAC 192-800-005 What is the standard the department will use to determine fraud?, 192-800-010 How will the disqualification periods and penalties be assessed for an employee who is determined to have committed fraud?, and 192-800-015 When will the department change an occurrence of fraud?
Hearing Location(s): On May 22, 2019, at 1:00 p.m., at 640 Woodland Square Loop S.E., Lacey, WA 98503, meeting will be in the Park Place Conference Room; and on May 29, 2019, at 9:00 a.m., at the DoubleTree Hilton, Spokane City, Center 322 North Spokane Falls Court, Spokane, WA 99201.
Date of Intended Adoption: May 30, 2019.
Submit Written Comments to: Christina Streuli, Employment Security Department, P.O. Box 9046, Olympia, WA 98507-9046, email email@example.com, online portal https://www.peakdemocracy.com/portals/289/forum_home?phase=open, by May 29, 2019.
Assistance for Persons with Disabilities: Contact Teresa Eckstein, state EO officer, phone 360-902-9354, TTY 711, email TEckstein@esd.wa.gov, by May 22, 2019.
Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: The rules will further define paid family and medical leave requirements for premium assessment and collection, application for benefits, weekly benefits, claim determinations, and provide practices and procedures for fraud determinations.
Reasons Supporting Proposal: The rules will assist in meeting the requirements to implement payment of benefits to eligible employees by January 1, 2020, as mandated by Title 50A
Statute Being Implemented: RCW 50A.04.010
, and 50A.04.260
Rule is not necessitated by federal law, federal or state court decision.
Name of Proponent: Employment security department, paid family and medical leave division, governmental.
Name of Agency Personnel Responsible for Drafting: Christina Streuli, Lacey, Washington, 360-791-6710; Implementation and Enforcement: Matt Buelow, Lacey, Washington, 360-742-7311.
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
. All proposed rules are exempt under RCW 34.05.328
(5). After review of the proposed rules, the agency determined the rules do not impose more-than-minor costs on businesses. Rules proposed are either interpretive or procedural. Definitions provided in these proposed rules clarify verbiage for processes in determining fraud, defining continued claim, and defining self-employed. The definitions do not impact procedures. Rules related to premium assessment and claims detail processes and procedures and add clarity to previous rules. Because of the connection to previous rules, there are no additional costs to businesses. Additional proposed rules address processes and procedures for employees benefit claims and would not produce costs.
Please see significance analysis for more information.
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.
Explanation of exemptions: RCW 34.05.328
(5)(c)(ii) creates an exemption for interpretive rules. This exemption applies to portions of the proposal. RCW 34.05.328
(5)(c)(i) creates an exemption for procedural rules. This exemption applies to portions of the proposal.
March 13, 2019
Matthew J. Buelow
Policy and Rules Manager
for Paid Family and Medical Leave
A "week" is a period of seven consecutive calendar days beginning on Sunday 12:00 a.m. and ending at 11:59 p.m. the following Saturday.
WAC 192-500-120Employee fraud.
(1) "Fraud" means an action taken by an employee where either of the following is determined to have occurred:
(a) Willful nondisclosure as defined in WAC 192-500-140; or
(b) Misrepresentation as defined in WAC 192-500-150.
(2) A finding of fraud will result in a disqualification of benefits and applicable penalties under Title 50A
"Nondisclosure" occurs when information that is known or should have been known by the employee at the time it is requested by the department, is not disclosed either inadvertently or through unintentional oversight.
WAC 192-500-140Willful nondisclosure.
"Willful nondisclosure" occurs when:
(1) An employee omits or fails to disclose information;
(2) The employee either knew or should have known that the information should have been provided;
(3) The information concerned a fact that was material to the employee's rights and responsibilities under Title 50A
(4) The employee omitted or did not disclose the information with the intent that the department would take action on other information the employee did provide.
"Misrepresentation" occurs when:
(1) The employee has made a statement or provided information;
(2) The statement was false;
(3) The employee either knew or should have known the statement or information was false when making or submitting it;
(4) The statement or submission concerned a fact that was material to the employee's rights and responsibilities under Title 50A
(5) The employee made the statement or submitted the information with the intent that the department would rely on the statement or information when taking action.
WAC 192-500-160Continued claim.
(1) An employee is a "continued claim" recipient if the employee:
(a) Is eligible for benefits; and
(b) Has received credit for the waiting period or payment of benefits for one or more weeks in a claim year and in the current continued claim series.
(2) Continued claim status will end following four or more consecutive weeks for which the employee does not file a claim or is not taking paid family or medical leave.
(1) A "self-employed" person is:
(a) A sole proprietor;
(b) A joint venturer or a member of a partnership that carries on a trade or business, contributes money, property, labor or skill and shares in the profits or losses of the business;
(c) A member of a limited liability company;
(d) An independent contractor who works as described in RCW 50A.04.010
(e) Otherwise in business for oneself as indicated by the facts and circumstances of the situation, including a part-time business.
(2) A corporate officer is an employee and not self-employed.
WAC 192-510-025What wages are reportable to the department for premium assessment purposes?
(1) Examples of wages reportable to the department for premium assessment purposes include, but are not limited to:
(a) Salary or hourly wages;
(b) Cash value of goods or services given in the place of money;
(c) Commissions or piecework;
(e) Cash value of gifts or prizes;
(f) Cash value of meals and lodging when given as compensation;
(g) Holiday pay;
(h) Paid time off, including vacation and sick leave, as well as associated cash outs;
(i) Bereavement leave;
(j) Separation pay including, but not limited to, severance pay, termination pay, and wages in lieu of notice;
(k) Value of stocks at the time of transfer to the employee if given as part of a compensation package;
(l) Compensation for use of specialty equipment, performance of special duties, or working particular shifts; and
(m) Stipends/per diems unless provided to cover a past or future cost incurred by the employee as a result of the performance of the employee's expected job functions.
(2) Examples of what the department will not consider wages include, but are not limited to:
(a) A supplemental payment from an employer benefit that is not part of the employee's standard compensation.
Example: While on paid medical leave, an employee receives 61 percent of the employee's typical weekly wage from the state. Through an internal short-term disability benefit, the employer pays the employee the remaining 39 percent of the employee's typical weekly wage as a supplemental benefit payment, bringing the employee's total benefit to 100 percent of the employee's typical weekly wage. Since this supplemental benefit payment is not part of the employee's standard compensation, it is not considered a wage, and should not be reported on either the employee's weekly claim or the employer's quarterly report.
(b) Any payment made to an employee to cover a past or future cost incurred by the employee related to the performance of the employee's expected job functions. Such costs include, but are not limited to, costs of meals and travel.
Example: An employer pays a per diem to an employee on a business trip to cover the cost of local travel and meals. This amount is not considered a wage, even if the per diem exceeds the actual cost incurred.
(c) The amount of any payment made (including any amount paid by an employer for insurance or annuities, or into a fund to provide for any such payment) to, or on behalf of, an individual or the individual's dependents under a plan or system established by an employer which makes provision generally for individuals performing service for the employer (or for such individuals generally and their dependents) or for a class or classes of such individuals (or for a class or classes of such individuals and their dependents) on account of:
(ii) Sickness or accident disability;
(iii) Medical or hospitalization expenses in connection with sickness or accident disability; or
WAC 192-610-070Can an employee cancel a claim after it has been submitted to the department?
(1) If an employee has not been issued a payment on the claim, an employee may cancel a claim within thirty days of the date of the submitted application for benefits.
(2) The commissioner, at the commissioner's discretion, may permit cancellation of a claim without an issued payment after thirty days from the date of the submitted application for benefits in extreme and unusual circumstances.
(3) An employee may not cancel a claim that has been issued a payment. The department will only cancel a claim that has been issued a payment in any amount if the department made the payment due to departmental error.
(4) If the department has denied benefits before the request to cancel the claim was received, the denial will remain in effect.
(5) The denial of a request to cancel a claim is not subject to appeal.
WAC 192-610-075Can an employer require an employee to take paid time off in place of paid family or medical leave benefits?
Employers may not require employees to take paid vacation leave, paid sick leave, or other forms of paid time off provided by the employer before, in place of, or concurrently with paid family or medical leave benefits.
WAC 192-610-080When should an employee reopen a claim?
(1) When an employee has an existing claim year and more than four consecutive weeks have passed since the employee filed a weekly claim for benefits, or the employee experiences a new qualifying event, the employee must reopen the claim in order to receive benefit payments.
(2) If the duration of leave for a qualifying event has not expired:
(a) The employee can reopen the claim and file weekly claims as necessary.
(b) If the employee requests to claim the weeks prior to the date the claim is reopened, the employee must have good cause as defined in WAC 192-610-040 to claim prior weeks.
(3) If the duration of leave for the qualifying event has expired or the reason for leave is not the same as the previous qualifying event, the employee must reopen the claim by updating the application as required under WAC 192-610-010 before benefits will be paid.
WAC 192-610-085How should an employee reopen a claim?
An employee may reopen a claim by:
(1) By using the department's online services;
(2) Contacting the paid family and medical leave customer care center by telephone; or
(3) Alternate methods authorized by the commissioner.
Chapter 192-620 WAC
WAC 192-620-005What is the minimum claim duration?
(1) The minimum claim duration for paid family or medical leave is eight consecutive hours in a week.
(2) If an employee on leave typically works less than eight-hour shifts, the employee will meet the requirement of a minimum claim when the employee has missed eight consecutive hours in a week the employee typically would have been scheduled.
Example: An employee typically works four-hour shifts. The employee will need to take two consecutive shifts of leave in a week to have a minimum claim.
WAC 192-620-010How should employees request benefit payments?
(1) An employee must file a weekly claim to receive benefits.
(2) An employee may file a weekly claim by:
(a) Using the department's online services;
(b) Using the department's telephone services; or
(c) The commissioner may authorize alternative methods of filing weekly claims.
(3) A weekly claim can only be made after the end of the week being claimed.
(4) A weekly claim must be completed in its entirety. Incomplete weekly claims will not be processed.
(5) No more than four weeks of claims can be made at one time, except in limited circumstances, such as backdating for good cause as defined in WAC 192-610-040.
WAC 192-620-020What information will the department request from employees when filing for weekly benefits?
(1) The department must determine if an employee qualifies for benefits when the employee files a weekly claim for the payment of benefits. For the week that the employee is claiming, the department will ask if the employee:
(a) Worked during the week, and for the hours associated with that work;
(b) Received any paid leave such as sick leave, vacation leave, or other paid time off provided by the employer, and the hours associated with that leave;
(c) Received any benefit that may disqualify the employee for paid family or medical leave, such as unemployment insurance; and
(d) Experienced a change in the qualifying event that affects the eligibility for, or duration of, paid family or medical leave benefits.
(2) The employee may be asked to provide additional information.
WAC 192-620-025What happens if an employee is being conditionally paid benefits?
(1) If an employee is a continued claim recipient, and eligibility is questioned by the department, the employee will be conditionally paid benefits for weeks the employee claims without delay.
(2) The employee may request the department to hold conditional payments until the question of eligibility is resolved when the employee has been notified the department questions their eligibility.
(3) An overpayment for a conditionally paid week cannot be waived and must be repaid.
Chapter 192-630 WAC
WAC 192-630-005What happens if there is a question regarding whether an employee is qualified for benefits?
(1) The department will send interested parties a notice when the department has a question of whether an employee is qualified for benefits prior to making a determination on the claim. The notice will include:
(a) The department's questions regarding the employee's qualification for benefits; and
(b) The date by which the interested parties must respond. This date will be no earlier than five calendar days from the date the notice is sent. Reasonable mailing time will be added when the notice is sent via postal service.
(2) The employee has a right to respond to the department on qualification issues.
WAC 192-630-010What happens if an interested party does not respond to the department's request for information?
(1) If an interested party fails to respond by the due date on the notice provided under WAC 192-630-005, the department will make a determination based on available information.
(2) Subject to RCW 50A.04.510
, if benefits are denied because the employee did not respond to a request for information, the denial will remain in effect until the employee provides sufficient information to establish that the employee is qualified for paid family or medical leave.
WAC 192-630-015How will a determination be made about an employee's eligibility for benefits?
(1) When the department has issued a notice under WAC 192-630-005 the department will not make a determination on whether an employee qualifies for paid family or medical leave until all interested parties have had an opportunity to provide information about the question of eligibility by the due date indicated on the notice.
(2) If new facts are discovered before the determination is made, the department will provide interested parties with an opportunity to respond to the new information.
(3) After the department makes a determination, all interested parties will be provided with a copy of that determination.
(4) If the department receives new and relevant information after a determination is made:
(a) The information will be considered by the department;
(b) Interested parties will be given an opportunity to respond, if necessary; and
(c) The department may make a new determination based on the newly provided information.
WAC 192-800-005What is the standard the department will use to determine fraud?
The department will determine if fraud has been committed under WAC 192-500-120 based on a showing of clear, cogent, and convincing evidence.
WAC 192-800-010How will the disqualification periods and penalties be assessed for an employee who is determined to have committed fraud?
(1) The department will assess disqualification periods and penalties for each fraud determination individually under RCW 50A.04.045
(2) All disqualifications and penalties in RCW 50A.04.045
(3) are in addition to the required repayment of any benefits paid as a result of fraud.
(3) The department will assess the fraud penalties established under RCW 50A.04.045
(3) based on the percentage of benefits paid for those weeks in which the fraud occurred or that were paid as a result of fraud. The penalty will not apply to other weeks that may be included in the same eligibility decision.
(4) The penalty amount, if not a multiple of one dollar, is rounded up to the next higher dollar.
WAC 192-800-015When will the department change an occurrence of fraud?
(1) Determinations of fraud are appealable. If an employee has been assessed with multiple determinations of fraud and any determination changes due to a redetermination or an appeal, the department will send a new fraud determination showing the corrected disqualification period and penalty under Title 50A
Example: The department issues a determination that an employee has committed a third occurrence of fraud. Through appeal, the second occurrence is overturned. The department will send a redetermination of the third occurrence indicating that it is now the second occurrence of fraud and the appropriate penalties will apply.
(2) Although the revised determination in subsection (1) of this section does not restart the appeal period included in the original decision, employees may appeal a change in the penalty amount or length of disqualification.