EMPLOYMENT SECURITY DEPARTMENT

[Filed May 14, 2020, 3:16 p.m., effective June 14, 2020]

Effective Date of Rule: Thirty-one days after filing.

Purpose: The employment security department is responsible for implementing the paid family and medical leave program in accordance with Title 50A RCW. Rule making is being done on an ongoing basis. This rule making creates a new section as WAC 192-700-020 to provide guidance on when employers must continue health care benefits to an employee on paid family or medical leave under Title 50A RCW. The rule making also provides clarifying amendments to WAC 192-700-010.

Citation of Rules Affected by this Order: New WAC 192-700-020 When does an employer need to provide a continuation of health benefits to an employee who is on paid family or medical leave?; and amending WAC 192-700-010 Can an employer deny employment restoration?

Statutory Authority for Adoption: RCW 50A.05.060, 50A.35.010, and 50A.35.020.

Adopted under notice filed as WSR 20-08-122 on March 31, 2020.

A final cost-benefit analysis is available by contacting Janette Benham, Employment Security Department, P.O. Box 9046, Olympia, WA 98507-9046, phone 360-790-6583, TTY Washington relay 711 (contact Teresa Eckstein at 360-507-9890 for accommodations), email janette.benham@esd.wa.gov, website https://www.opentownhall.com/portals/289/forum_home.

Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 0, Amended 0, Repealed 0.

Number of Sections Adopted at the Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.

Number of Sections Adopted on the Agency's own Initiative: New 0, Amended 0, Repealed 0.

Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 1, Amended 1, Repealed 0.

Number of Sections Adopted using Negotiated Rule Making: New 0, Amended 0, Repealed 0; Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 1, Amended 1, Repealed 0.

Date Adopted: May 13, 2020.

Policy and Rules Manager

AMENDATORY SECTION(Amending WSR 20-01-087, filed 12/12/19, effective 1/12/20)

WAC 192-700-010Can an employer deny employment restoration?

(1) An employee is not entitled to ((employment protection under Title 50A RCW))rights under RCW 50A.35.010(1) if:

(a) An employer exercises its right to deny restoration under RCW 50A.35.010 (6)(b) and the employee has elected not to return to employment after receiving notice under subsection (2) of this section; or

(b) The employer is able to show that an employee would not otherwise have been employed at the time ((of reinstatement))the employee would return to work after the employee's family or medical leave under Title 50A RCW ends.

(2) An employer that chooses to deny restoration under subsection (1)(a) or (b) of this section to an employee on paid medical or family leave must notify the employee in writing as soon as the employer decides to deny restoration. The employer must serve this notice to the employee either in person or by certified mail. The notice must include:

(a) A statement that the employer intends to deny employment restoration when the leave has ended;

(b) The reasons behind the decision to deny restoration;

(d) The date ((in))on which eligibility for employer-provided health benefits ends.

(3) Employers that choose to deny restoration ((are required to adhere to the))under this section must provide continuation of health benefits as required in RCW 50A.35.020 ((for the remainder of the employee's approved leave))and WAC 192-700-020.

WAC 192-700-020When does an employer need to provide a continuation of health benefits to an employee who is on paid family or medical leave?

(1) An employee taking family or medical leave under Title 50A RCW is entitled to the continuation of health benefits as provided in this section when there is at least one day of concurrent use with leave taken under the federal Family and Medical Leave Act as it existed on October 19, 2017.

(2) When required under subsection (1) of this section, the employee's health benefits must be maintained as if the employee had continued to work from the date family or medical leave under Title 50A RCW commenced until whichever of the following occurs first:

(a) The employee's family or medical leave under Title 50A RCW ends; or

(b) The employee returns from leave to any employment.

(3) If the employer and employee share the cost of existing health benefits, then during any continuation of health benefits as provided in this section, the employee remains responsible for the employee's share of the cost as prescribed by 29 C.F.R. 825.210, 825.211, and 825.212, and any subsequent amendments to those regulations.

(4) Nothing in this section should be construed as restricting an employer from providing a continuation of health benefits for any employee's claim for paid family or medical leave.