Date of Adoption: January 6, 2003.

     Purpose: Chapter 296-130 WAC, Family care.

     The purpose of this rule making is to make changes to the family care rules (chapter 296-130 WAC) in response to the passage of chapter 243, Laws of 2002 (SSB 6426) from the 2002 legislative session.

     These changes are necessary to:

•     Update the rules to reflect legislative changes.

•     Make necessary changes to reflect current department practices.

•     Make necessary housekeeping changes.

AMENDED SECTIONS:

     WAC 296-130-010 Purpose. Clarifies that a minimum standard is established to allow an employee to use sick leave or other paid time off to care for a sick family member.

     WAC 296-130-020 Definitions. Added a new definition of "child" to clarify when leave may be used for a child under the age of eighteen or eighteen years of age and older. Deleted old language for "accrued sick leave." Added new definition of "parent," "grandparent," "parent-in-law," "spouse," "serious health condition," "emergency condition," "incapable of self-care," and "physical or mental disability." Lastly, made housekeeping changes to definitions of "infraction" and "administrative law judge."

     WAC 296-130-030 Employee rights. Changes were made to this section to reflect the statutory changes to allow employee's choice of sick leave or other paid time off to care for minor and adult children as defined in WAC 296-130-020, and for other family members with a serious health condition or emergency condition, also defined in WAC 296-130-020. Specifies that an employee may not take leave until it has been earned and that taking of leave must comply with the terms of the collective bargaining agreement or employer policy, except for any terms relating to choice of leave.

     In addition, a note was added to further clarify when and if an employer may require paid time off (PTO) leave to be used prior to the use of leave banks that are provided by the employer for specific purposes (i.e. extended illness).

     WAC 296-130-035 Employee complaints. The requirements found in the current WAC 296-130-040 were moved to this section and minor edits were done to reflect clear rule-writing principles.

     WAC 296-130-040 Prohibited action. The requirements found in the current WAC 296-130-035 were moved to this section and minor edits were done to reflect clear rule-writing principles.

     WAC 296-130-050 Posting. Minor edits were made to reflect clear rule-writing principles.

     WAC 296-130-060 Notices of infraction. Housekeeping changes and minor edits were made to reflect clear rule-writing principles.

     WAC 296-130-065 Service on employers. Housekeeping changes and minor edits were made to reflect clear rule-writing principles.

     WAC 296-130-070 Appeal of infraction notice. Housekeeping changes and minor edits were made to reflect clear rule-writing principles. In addition, established that the department must notify the employee who filed the initial complaint that resulted in the notice of infraction.

     WAC 296-130-080 Penalty assessment. Housekeeping changes and minor edits were made to reflect clear rule-writing principles.

NEW SECTION:

     WAC 296-130-100 Collective bargaining not impaired. The requirements found in the current WAC 296-130-500 were moved to this section and minor edits were done to reflect clear rule-writing principles.

REPEALED SECTION:

     WAC 296-130-500 Collective bargaining not impaired. These requirements were moved to a new section, WAC 296-130-100.

     Citation of Existing Rules Affected by this Order: Repealing WAC 296-130-500; and amending WAC 296-130-010, 296-130-020, 296-130-030, 296-130-035, 296-130-040, 296-130-050, 296-130-060, 296-130-065, 296-130-070, and 296-130-080.

     Statutory Authority for Adoption: RCW 49.12.033, 49.12.280, 49.12.285, 43.22.270, and chapter 243, Laws of 2002 (SSB 6426).

     Other Authority: Chapters 49.12 and 43.22 RCW.

      Adopted under notice filed as WSR 02-21-106 on October 22, 2002.

     Changes Other than Editing from Proposed to Adopted Version: WAC 296-130-020 Definitions. Added "that involves" to the definition of "Serious health condition."

     WAC 296-130-030 Employee rights. A note was added to further clarify when and if an employer may require paid time off (PTO) leave to be used prior to the use of leave banks that are provided by the employer for specific purposes (i.e. extended illness).

     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 1, Amended 10, Repealed 1.

     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 1, Amended 10, Repealed 1.

     Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 1, Amended 10, 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 1, Amended 10, Repealed 1.

     Other Findings Required by Other Provisions of Law as Precondition to Adoption or Effectiveness of Rule: Section (4), chapter 243, Laws of 2002 (SSB 6426) contains a provision that "This act takes effect January 1, 2003." As these rules are necessary for the implementation of this act, the department is authorized to adopt and put these rules into effect immediately per RCW 34.05.380(3).
     Effective Date of Rule: January 6, 2003.

January 6, 2003

Gary Moore

Director

OTS-5991.2

AMENDATORY SECTION(Amending Order 88-20, filed 8/31/88)

WAC 296-130-010   ((Declaration of)) Purpose.   It is in the public interest for employers to accommodate employees by providing reasonable leaves from work for family reasons. This chapter serves to establish a minimum standard allowing an employee to use the employee's ((accrued)) sick leave or other paid time off to care for a ((child of the employee)) sick family member.

[Statutory Authority: RCW 43.22.270 and 1988 c 236. 88-18-044 (Order 88-20), § 296-130-010, filed 8/31/88.]

     (2) "Employee" means a worker who is employed in the business of an employer. "Employee," for the purposes of this chapter, also includes workers performing in an executive, administrative, professional, or outside sales capacity.

     (3) "Employ" means to engage, suffer, or permit to work.

     (4) (("Accrued sick leave" means leave which the employee has accumulated by earning a certain number of hours or days per month or per year which the employee is entitled to use to continue his or her normal compensation during absences due to illness, accident, or other conditions which require medical treatment or supervision, and which is provided for by a collective bargaining agreement, employer/employee agreement, employer policy, ordinance, or civil service rule.

     It does not include annual leave, vacation leave, or personal leave. It does not include any benefit which includes leave granted by short-term or long-term disability plans except in a case where those plans include a separate and identifiable component which allows the employee to accumulate by earning a certain number of hours or days per month or per year which the employee is entitled to use to continue his or her normal compensation in absence due to illness, accident, or other conditions which require medical treatment or supervision which is provided for by a collective bargaining agreement, employer/employee agreement, employee/employer policy, ordinance, or civil service rule. In a case where a short-term or long-term disability plan includes a separate and identifiable component which allows the employee to accumulate leave by earning a certain number of hours or days per month or per year which the employee is entitled to use to continue his or her normal compensation in absence due to illness, accident, or other conditions which require medical treatment or supervision, only that separate identifiable portion shall be considered accrued sick leave.

     (5) "Child of the employee" means any child under the age of eighteen who is:

     (a) The natural offspring of the employee;

     (b) The adopted child of the employee;

     (c) The natural or adopted child of the employee's spouse; or

     (d) Is under the employee's legal guardianship, legal custody, or foster care.

     (6))) "Child" means a biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis who is:

     (a) Under eighteen years of age; or

     (b) Eighteen years of age or older and incapable of self-care because of a mental or physical disability.

     (5) "Grandparent" means a parent of a parent of an employee.

     (6) "Parent" means a biological parent of an employee or an individual who stood in loco parentis to an employee when the employee was a child.

     (7) "Parent-in-law" means a parent of the spouse of an employee.

     (8) "Sick leave or other paid time off" means time allowed under the terms of an appropriate collective bargaining agreement or employer policy, as applicable, to an employee for illness, vacation, and personal holiday. It does not include any benefit which includes leave granted by short-term or long-term disability plans or policies.

     (9) "Spouse" means a husband or wife, as the case may be.

     (10) "Health condition that requires treatment or supervision" ((shall)) includes:

     (a) Any medical condition requiring treatment or medication that the child cannot self ((medicate)) administer;

     (b) Any medical or mental health condition which would endanger the child's safety or recovery without the presence of a parent or guardian; or

     (c) Any condition warranting treatment or preventive health care such as physical, dental, optical or immunization services, when a parent must be present to authorize and when sick leave may otherwise be used for the employee's preventive health care.

     (((7))) (11) "Serious health condition" means an illness, injury, impairment, or physical or mental condition that involves any period of incapacity or treatment connected with inpatient care (i.e., an overnight stay) in a hospital, hospice, or residential medical care facility, and any period of incapacity or subsequent treatment or recovery in connection with such inpatient care; or that involves continuing treatment by or under the supervision of a health care provider or a provider of health care services and which includes any period of incapacity (i.e., inability to work, attend school or perform other regular daily activities).

     (12) "Emergency condition" means a health condition that is a sudden, generally unexpected occurrence or set of circumstances related to one's health demanding immediate action, and is typically very short term in nature.

     (13) "Incapable of self-care" means that the individual requires active assistance or supervision to provide daily self-care in several of the "activities of daily living" (ADLs) or "instrumental activities of daily living" (IADLs). Activities of daily living include adaptive activities such as caring appropriately for one's grooming and hygiene, bathing, dressing and eating. Instrumental activities of daily living include cooking, cleaning, shopping, taking public transportation, paying bills, maintaining a residence, using telephones and directories, using a post office, etc.

     (14) "Physical or mental disability" means a physical or mental impairment that limits one or more activities of daily living or instrumental activities of daily living.

     (15) "Infraction" means an alleged violation of RCW ((49.12.___ (chapter 236, Laws of 1988))) 49.12.270 through 49.12.295 as cited by the department.

     (((8))) (16) "Administrative law judge" means any person appointed by the chief administrative law judge, as defined in RCW 34.12.020(2) to preside at contested cases convened under RCW ((49.12.___ (chapter 236, Laws of 1988))) 49.12.270 through 49.12.295.

     (((9))) (17) "Department" means the department of labor and industries.

[Statutory Authority: RCW 43.22.270 and 1988 c 236. 88-18-044 (Order 88-20), § 296-130-020, filed 8/31/88.]

     (2) An employee may not take leave until it has been earned. The employee taking leave under the circumstances described in this section must comply with the terms of the collective bargaining agreement or employer policy applicable to the leave, except for any terms relating to the choice of leave. Use of leave other than sick leave or other paid time off to care for a child, spouse, parent, parent-in-law, or grandparent under the circumstances described in this section shall be governed by the terms of the appropriate collective bargaining agreement or employer policy, as applicable.

Note:

Many employers combine paid leave categories such as sick leave and vacation leave, often described as "paid time off" or PTO. Such PTO allows employees the choice as to their use of this leave, thereby maintaining the intent of this chapter. In addition, employers may require employees to use PTO (provided it may be used for any purpose) as a prerequisite to using leave designated for a specific purpose, such as an extended illness leave, without violating this chapter, provided other leave is available for employees to use to care for sick family members on the same terms that it is available for an employee's health condition.

[Statutory Authority: RCW 43.22.270 and 1988 c 236. 88-18-044 (Order 88-20), § 296-130-030, filed 8/31/88.]

     (3) The department may investigate any complaint it deems appropriate. If the department determines that a violation of this chapter has occurred, it may issue a notice of infraction pursuant to WAC 296-130-060.)) An employer must not discharge, threaten to discharge, demote, suspend, discipline, or otherwise discriminate against an employee because the employee:

     (1) Has exercised, or attempted to exercise, any right provided under RCW 49.12.270 through 49.12.295; or

     (2) Has filed a complaint, testified, or assisted in any proceeding under RCW 49.12.270 through 49.12.295.

[Statutory Authority: RCW 43.22.270 and 1988 c 236. 88-23-117 (Order 88-29), § 296-130-035, filed 11/23/88.]

     (3) The department may investigate any complaint it deems appropriate. If the department determines that a violation of this chapter has occurred, it may issue a notice of infraction pursuant to WAC 296-130-060.

[Statutory Authority: RCW 43.22.270 and 1988 c 236. 88-18-044 (Order 88-20), § 296-130-040, filed 8/31/88.]

     (2) The employer ((shall)) must keep posted a current edition department poster stipulating the provisions of this chapter. The employer ((shall)) must display this poster in a conspicuous place.

     (3) The employer ((shall)) must post its leave policies, if any, in a conspicuous place accessible to the employees at the employer's place of business.

     (4) The posting requirement for employees whose leave policies are specified by individual contracts may be satisfied by stating that leave for such employees will be governed by the terms of such contracts.

     (5) Employers with informal leave policies which are established on a case-by-case basis may satisfy the posting requirement by posting a statement explaining that policy.

[Statutory Authority: RCW 43.22.270 and 1988 c 236. 88-18-044 (Order 88-20), § 296-130-050, filed 8/31/88.]

     (1) A statement that the notice represents a determination that the infraction has been committed by the employer named in the notice and that the determination ((shall)) will be final unless contested;

     (2) A statement that the infraction is a noncriminal offense for which imprisonment ((shall)) will not be imposed as a sanction;

     (3) A statement of the specific violation which necessitated issuance of the infraction;

     (4) A statement of the penalty involved if the infraction is established;

     (5) A statement informing the employer of the right to a hearing conducted pursuant to chapter ((34.04)) 34.05 RCW if requested within twenty days of issuance of the infraction;

     (6) A statement that at any hearing to contest the notice of infraction the state has the burden of proving, by a preponderance of the evidence, that the infraction was committed, and that the employer may subpoena witnesses including the agent that issued the notice of infraction;

     (7) If a notice of infraction is personally served upon a supervisory or managerial employee of a firm or corporation, the department ((shall)) will within ten days of service send a copy of the notice by certified mail to the employer; and

     (8) Constructive service may be made by certified mail directed to the employer named in the notice of infraction.

[Statutory Authority: RCW 43.22.270 and 1988 c 236. 88-18-044 (Order 88-20), § 296-130-060, filed 8/31/88.]

     (2) If the department serves a notice of infraction on a supervisory or managerial employee, and not on an officer, or partner of the employer, the department ((shall)) will mail by certified mail a copy of the notice of infraction to the employer or registered agent of the company. The department ((shall)) will mail a second copy by ordinary mail.

[Statutory Authority: RCW 43.22.270 and 1988 c 236. 88-18-044 (Order 88-20), § 296-130-065, filed 8/31/88.]

     (2) The department ((shall)) must:

     (a) Conduct a hearing in accordance with chapter ((34.04)) 34.05 RCW and chapter 10-08 WAC; and

     (b) Notify the employee who filed the initial complaint that resulted in the notice of infraction.

     (3) Employers may appear before the administrative law judge through counsel, or may represent themselves. The department ((shall)) must be represented by the office of the attorney general.

     (4) All relevant evidence shall be admissible in a hearing convened pursuant to RCW ((49.12.___ (chapter 236, Laws of 1988))) 49.12.270 through 49.12.295. Admission of evidence is subject to ((RCW 34.04.100 and 34.04.105 of)) the Administrative Procedure Act ((of Washington)), chapter 34.05 RCW.

     (5) The administrative law judge ((shall)) will issue a proposed decision that includes findings of fact, conclusions of law, and if appropriate, any legal penalty. The proposed decision ((shall)) will be served by certified mail or personally on the employer and the department. The employer or department may appeal to the director within thirty days after the date of issuance of the proposed decision. If none of the parties appeals within thirty days, the proposed decision may not be appealed either to the director or the courts.

     (6) An appellant must file with the director an original and four copies of its notice of appeal. The notice of appeal must specify which findings and conclusions are erroneous. The appellant must attach to the notice the written arguments supporting its appeal.

     The appellant must serve a copy of the notice of appeal and the arguments on the other parties. The respondent parties must file with the director their written arguments within thirty days after the date the notice of appeal and the arguments were served upon them.

     (7) The director ((shall)) or his/her designee will review the proposed decision in accordance with the Administrative Procedure Act, chapter ((34.04)) 34.05 RCW. The director may: Allow the parties to present oral arguments as well as the written arguments; require the parties to specify the portions of the record on which the parties rely; require the parties to submit additional information by affidavit or certificate; remand the matter to the administrative law judge for further proceedings; and require a departmental employee to prepare a summary of the record for the director to review. The director shall issue a final decision that can affirm, modify, or reverse the proposed decision.

     (8) The director ((shall)) or his/her designee will serve the final decision on all parties. Any aggrieved party may appeal the final decision to superior court pursuant to the Administrative Procedure Act, chapter 34.05 RCW ((34.04.130)) unless the final decision affirms an unappealed proposed decision. If no party appeals within ((the period set by RCW 34.04.130)) twenty days, the director's decision is conclusive and binding on all parties.

[Statutory Authority: RCW 43.22.270 and 1988 c 236. 88-18-044 (Order 88-20), § 296-130-070, filed 8/31/88.]

[Statutory Authority: RCW 43.22.270 and 1988 c 236. 88-18-044 (Order 88-20), § 296-130-080, filed 8/31/88.]

[]

OTS-6013.1

REPEALER

     The following section of the Washington Administrative Code is repealed:

WAC 296-130-500

Collective bargaining not impaired.

© Washington State Code Reviser's Office