EMPLOYMENT SECURITY DEPARTMENT

[Filed March 24, 2020, 9:39 a.m.]

Continuance of WSR 20-03-102.

Preproposal statement of inquiry was filed as WSR 19-18-021.

Title of Rule and Other Identifying Information: Hours of availability and suitable work: Adjusting the hours unemployment claimants must be available for work in order to be eligible for unemployment benefits and updating factors used to determine suitable work. The public hearing is being rescheduled as a remote hearing due to COVID-19 concerns.

Hearing Location(s): On May 7, 2020, at 10:00 a.m., telephone conference, call 360-407-3790. When prompted for the Conference ID number, press 51750 and then the # key.

Date of Intended Adoption: May 9, 2020.

Submit Written Comments to: Joshua Dye, P.O. Box 9046, Olympia, WA 98507-9046, email rules@esd.wa.gov, fax 844-652-7096, by May 6, 2020.

Assistance for Persons with Disabilities: Contact Teresa Eckstein, phone 360-507-9890, fax 360-586-4600, TTY relay 711, email teckstein@es.wa.gov [teckstein@esd.wa.gov], by April 30, 2020.

Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: Under current rules, unemployment claimants must be available for work during all the usual hours and days of the week customary for their occupation. This requirement can be unobtainable for some claimants who work in 24/7 professions, especially those claimants who have family caregiving responsibilities. Rule making is necessary to set a more obtainable standard. Additionally, rule making is necessary to include shifts of employment as a factor used to determine suitable work, consistent with Unemployment Insurance (UI) Program Letter No. 41-98.

Reasons Supporting Proposal: Current availability requirements force many Washington workers to make difficult choices between providing care necessary for family members and being available for work during unattainable days and hours. Approximately forty percent of industries in Washington are classified as having customary hours of twenty-four hours a day, seven days a week. This forces claimants to be available morning, afternoons, and overnight, even if the claimant had not previously worked shifts during those time frames. Many claimants are unable to accept work different from previous work schedules due to obligations for providing care for a child or vulnerable adult, which precludes the claimant from receiving unemployment insurance benefits. By removing the requirement that claimants be available for "all of" the customary hours of the industry, claimants are provided flexibility to receive UI benefits while the claimant searches for new suitable employment while meeting obligations for providing care to family members.

Clarifying the definition of suitable work to include previous shifts of employment provides a level of protection for workers. The amended definition of suitable work removes hardships on claimants while protecting charged employers by preventing claimants from imposing undue restrictions on availability.

Statutory Authority for Adoption: RCW 50.12.010 and 50.12.040 provide general rule-making authority to the employment security department. RCW 50.12.042 provides specific rule-making authority regarding the requirement that unemployment claimants be able to work, available for work, and actively seek work. RCW 50.20.100 provides rule-making authority to determine what factors are used to determine suitable work.

Statute Being Implemented: RCW 20.12.042.

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

Name of Proponent: Employment security department, governmental.

Name of Agency Personnel Responsible for Drafting: Scott Michael, Olympia, 360-890-3448; Implementation and Enforcement: Julie Lord, Olympia, 360-890-3635.

A school district fiscal impact statement is not required under RCW 28A.305.135.

A cost-benefit analysis is required under RCW 34.05.328. A preliminary cost-benefit analysis may be obtained by contacting Joshua Dye, P.O. Box 9046, Olympia, WA 98507-9046, phone 360-890-3472, email Rules@esd.wa.gov, https://esd.wa.gov/newsroom/ui-rule-making/.

The proposed rule does not impose more-than-minor costs on businesses. Following is a summary of the agency's analysis showing how costs were calculated. From July 1, 2017, through July 1, 2019, the department denied 22,105 claims for claimants who were not available during the work hours and days usual for their type of work. Each claim, on average, represents $7,285 in charged benefits to an employer. When considering the total denied claims spread across the state-wide employer base, the proposed rule would increase each employer's average charged benefits by $130.48 per year. An increase of this size is unlikely to increase the tax liability for many employers.

Employment Security Policy Director