EMPLOYMENT SECURITY DEPARTMENT

[Filed January 24, 2019, 11:06 a.m., effective January 24, 2019, 11:06 a.m.]

Effective Date of Rule: Immediately upon filing.

Purpose: The rule deems federal employees who are not being paid timely solely due to a lapse in appropriations "unemployed" and eligible for unemployment benefits so long as they otherwise meet the requirements of the Employment Security Act. In addition, under the rule, federal employees eligible for unemployment benefits as a result of the shutdown are considered attached to their employer and therefore not required to register for work or look for other work beginning with the first week of an individual's claim and ending the week the federal government appropriates funding to pay the individual's wages. Finally, the rule makes clear that a federal employee receiving back pay shall reimburse the employment security department for benefits paid.

Citation of Rules Affected by this Order: New WAC 192-210-201.

Statutory Authority for Adoption: RCW 50.12.010, 50.12.040, 50.04.310, 50.12.042, 50.20.190, 50.24.020.

Under RCW 34.05.350 the agency for good cause finds that immediate adoption, amendment, or repeal of a rule is necessary for the preservation of the public health, safety, or general welfare, and that observing the time requirements of notice and opportunity to comment upon adoption of a permanent rule would be contrary to the public interest.

Reasons for this Finding: There are thousands of federal employees in Washington who are working without pay as a result of the longest federal shutdown in United States history. These employees need the economic support unemployment benefits can provide while they remain unpaid through no fault of their own. Therefore, emergency rules are required to preserve the general welfare and allow government employees working without pay as a result of this shutdown to receive unemployment benefits.

Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 0, Amended 0, Repealed 0.

Number of Sections Adopted at the Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.

Number of Sections Adopted on the Agency's own Initiative: New 1, Amended 0, Repealed 0.

Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 1, Amended 0, Repealed 0.

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 0, Amended 0, Repealed 0.

Date Adopted: January 24, 2019.

WAC 192-210-201Federal employees affected by a government shutdown

(1) For purposes of this rule, a "federal employee affected by a government shutdown" is defined as an individual who, on or after December 22, 2018, is a full time or part time employee of the United States government, or of any agency or instrumentality thereof, who is not being paid timely solely due to a lapse in appropriations. For purposes of this section, "not being paid timely" means not receiving payment of wages on the regular pay date designated by the federal government or agency.

(2) Federal employees affected by a government shutdown are deemed to be "unemployed" under RCW 50.04.310, regardless of whether they are performing services for the United States, or for any agency or instrumentality thereof, and are eligible for unemployment benefits so long as they otherwise meet the eligibility and qualification requirements of the Employment Security Act, PROVIDED, that the department will consider such claimants to be attached to their employers under WAC 192-180-005 (1)(a) and will not require them to register for work or look for other work beginning with the first week of an individual's claim and ending the week the United States government appropriates funding to pay the individual's wages. HOWEVER, if the individual is recalled to work and refuses to return to work for their government employer prior to the appropriation of funds used to pay their wages, they will no longer be considered attached to their employer and will be required to register for work and look for work.

(3) If a federal employee affected by a government shutdown receives back pay intended to compensate the individual for the week or weeks for which the individual did not receive wages, the individual shall repay the department any benefits received for any week covered by an award of back pay. If the individual fails to repay the department, the department may establish a benefit overpayment pursuant to RCW 50.20.190 and RCW 50.24.020.