WSR 20-20-073
PERMANENT RULES
EMPLOYMENT SECURITY DEPARTMENT
[Filed October 2, 2020, 10:20 a.m., effective November 2, 2020]
Effective Date of Rule: Thirty-one days after filing.
Purpose: The adopted rules implement several changes to Title 192 WAC. New rules include adding a definition for "placement" of a child for eligibility for family bonding leave and clarification on how the employment security department will determine the premium rate for each calendar year. Amended rules include: Clarification on when a claim year will be established; information regarding the documentation required for the birth or placement of a child; a description of how a benefit will be prorated; additional information regarding the conditions under which an order of default will be vacated; and other clarifying and technical changes.
Citation of Rules Affected by this Order: New WAC 192-500-195 Placement and 192-510-090 How will the department determine the premium rate for each calendar year?; and amending WAC 192-500-040 Aggrieved party, 192-500-070 Claim year, 192-500-080 Qualifying event, 192-500-170 Self employed, 192-610-025 Documenting the birth or placement of a child for paid family leave, 192-620-035 When will a weekly benefit amount be prorated?, 192-800-035 Who can appeal or submit a petition for review?, 192-800-045 When can an appeal be withdrawn?, and 192-800-110 What options are available for an aggrieved party who received an order of default?
Adopted under notice filed as WSR 20-16-149 on August 5, 2020.
Changes Other than Editing from Proposed to Adopted Version: WAC 192-500-080 (1) and (2), the subsections were removed from the RCW
50A.05.010 references. WAC 192-500-170 (1)(d), the subsection was removed from the RCW
50A.05.010 reference.
A final cost-benefit analysis is available by contacting April Amundson, Employment Security Department, P.O. Box 9046, Olympia, WA 98507-9046, phone 360-485-2816, TTY Washington relay 711 (contact Teresa Eckstein at 360-507-9890 for accommodations), email rules@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Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 0, Amended 0, Repealed 0.
Number of Sections Adopted at the Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.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 2, Amended 9, 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 2, Amended 9, Repealed 0.
Date Adopted: October 2, 2020.
April Amundson
Policy and Rules Manager
for Paid Family and Medical Leave
AMENDATORY SECTION(Amending WSR 19-23-090, filed 11/19/19, effective 12/20/19)
WAC 192-500-040Aggrieved ((person))party.
An "aggrieved ((person))party" is any interested party who receives an adverse decision from:
(1) The department for which the department has provided notice of appeal;
(2) The employer with an approved voluntary plan for which that employer has provided notice of appeal;
(3) The office of administrative hearings; or
(4) The commissioner's review office.
AMENDATORY SECTION(Amending WSR 20-11-033, filed 5/14/20, effective 6/14/20)
WAC 192-500-070Claim year.
(1) A "claim year" is the period beginning Sunday of the week of the date an eligible employee files a complete initial application for benefits and ending the Saturday fifty-two weeks later.
(2) The entitlement to family leave benefits for the birth or placement of a child expires at the end of the twelve-month period beginning on the date ((of such birth or placement))the child was first placed in the home.
(3) For applications that are backdated, the claim year is the fifty-two week period beginning Sunday of the week to which the application was backdated.
(4) An employee may only have one valid claim year at a time.
(5) A new claim year will not be established for an employee who:
(a) Is determined to have less than eight hundred twenty hours in their qualifying period; or
(b) Fails to sufficiently prove their identity to the department.
Example 1: An employee experiences an injury that qualifies as a serious health condition. Three days later, on Thursday, March 4, 2021, the employee files a complete initial application for medical leave benefits. The employee's claim year will run from Sunday, February 28, 2021, to Saturday, February 26, 2022.
Example 2: An employee filed an application for medical leave in March 2021. The employee took four weeks of medical leave and returned to work. The employee's spouse gives birth to a child in September 2021. The employee elects not to take family leave until April 2022. Because the employee's first claim year has already expired, the employee must file a new application and begin a new claim year in order to take family leave beginning in April 2022.
Example 3: An employee gives birth on Thursday, March 4, 2021. The employee elects not to submit an application for paid family leave until Monday, April 5, 2021. Though the employee's claim year will run from Sunday, April 4, 2021, to Saturday, April 2, 2022, the employee will not be able to claim family leave after March 3, 2022, for the birth of the child. The employee can claim leave for other qualifying reasons for the period March 4, 2022, through April 2, 2022, subject to the maximum duration limits.
AMENDATORY SECTION(Amending WSR 20-01-087, filed 12/12/19, effective 1/12/20)
WAC 192-500-080Qualifying event.
A "qualifying event" is:
(1) For family leave, events described in RCW
50A.05.010((
(9)))
and related rules.
(2) For medical leave, events described in RCW
50A.05.010((
(14)))
and related rules.
AMENDATORY SECTION(Amending WSR 20-01-087, filed 12/12/19, effective 1/12/20)
WAC 192-500-170Self-employed.
(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.05.010 ((
(7)(b)(ii))); or
(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.
NEW SECTION
WAC 192-500-195Placement.
(1) For the purposes of qualifying for paid family leave to bond with a child under RCW
50A.05.010, "placement" means the adoptive, guardianship, foster care, or nonparental custody placement of a child under the age of eighteen with the employee. A placement is considered:
(a) An adoptive placement when the employee is legally and permanently assuming the responsibility of raising the child as their own, and the placement of the child into the employee's home is made through a private arrangement, a child placement agency, or a government agency.
(b) A guardianship placement when the employee is granted guardianship of a child by court order, and the child is placed in the home under:
(iii) Any other applicable guardianship that reflects the purpose, permanency, and legal authority of guardianships under Titles
11 and
13 RCW, including guardianships granted out of this state or country.
(c) A foster care placement when the employee is providing care for a child placed in the employee's home. Such placements must involve voluntary or involuntary removal of the child from the child's parents or guardian, and an agreement between a government agency and the foster family that the foster family will take care of the child. Although foster care placement may be with a relative of the child or another individual who may not have a foster care license, government agency action must be involved in the removal of the child.
(d) A nonparental custody placement when the child is placed into the home of the employee by court order granting the employee nonparental custody.
(2) For the purposes of this section, a "government agency" may include an agency of any branch of government at the county, state, or federal level, or a foreign jurisdiction.
(3) The entitlement to paid family leave benefits for placement of a child expires at the end of the twelve-month period beginning on the date the child was first placed in the home.
(4) When applying for paid family leave to bond with a child, the employee must provide documentation referenced in WAC 192-610-025 to verify placement of the child.
(5) Qualifying paid family leave to bond with a child placed for adoption, guardianship, foster care, or nonparental custody does not include:
(a) Placement with a birth parent; and
(b) Any adoptive, guardianship, foster care, or nonparental custody placement of a child with an employee that occurs more than twelve months after that child is first placed in the employee's home.
NEW SECTION
WAC 192-510-090How will the department determine the premium rate for each calendar year?
(1) For calendar year 2021 and thereafter, the total premium rate shall be based on the family and medical leave insurance account balance ratio as of September 30th of the previous year.
(2) The commissioner shall calculate the account balance ratio by dividing the balance of the family and medical leave insurance account by total covered wages paid by employers and those electing coverage.
(3) For the purposes of this section, "total covered wages" is defined as the total amount of wages paid to employees that are subject to the paid family and medical leave premium from July 1st of the previous calendar year to June 30th of the current calendar year as reported by employers.
AMENDATORY SECTION(Amending WSR 19-08-016, filed 3/22/19, effective 4/22/19)
WAC 192-610-025Documenting the birth or placement of a child for paid family leave.
(1) When paid family leave is taken to bond with the employee's child after birth ((or placement, the department may request)), the employee must provide a copy of:
(((1)))(a) The child's birth certificate; or
(((2)))(b) Certification of birth from a health care provider((;
(3) Court documents to show)).
(2) When paid family leave is taken to bond with the employee's child after the child's placement as defined in WAC 192-500-195, the employee must provide a copy of a court order verifying placement((; or
(4) Other reasonable)). If a court order is not available, the department may accept alternate documentation sufficient to verify the placement.
(3) Additional documentation may be requested to substantiate the qualifying event.
AMENDATORY SECTION(Amending WSR 19-23-090, filed 11/19/19, effective 12/20/19)
WAC 192-620-035When will a weekly benefit amount be prorated?
(1) For an employee on paid family or medical leave, a weekly benefit amount is prorated when:
(((1)))(a) The employee ((works))reports hours ((for wages; or
(2)))worked;
(b) The employee ((uses))reports hours for paid sick leave, paid vacation leave, or other paid time off that is not considered a supplemental benefit payment as defined in WAC 192-500-180; or
(c) The employee files a weekly application for benefits that contains a day or days for which the employee did not claim paid family or medical leave.
(2) If an employee reports hours under subsection (1)(a) or (b) of this section, proration will be calculated as specified by RCW 50A.15.020(2). (3) If an employee claims part of a week under subsection (1)(c) of this section, proration will be calculated by dividing the employee's typical workweek hours and weekly benefit amount for that week by sevenths, then multiplying by the number of days for which the employee claimed paid family or medical leave for that week. The remainder of the week will be calculated as specified by RCW 50A.15.020(2) and subsection (1)(a) and (b) of this section.
Example 1: An employee has already served a waiting period in the claim year and files a claim for a week of paid medical leave. The employee typically works forty hours a week at eight hours per day. In the week for which the employee is claiming, the employee claimed one day of paid medical leave and worked the other four days. This employee's weekly benefit is usually (($800))eight hundred dollars. The weekly benefit would then be prorated by the hours on paid medical leave (eight hours) relative to the typical workweek hours (((40))forty hours). Eight hours is ((20% of 40))twenty percent of forty hours. The employee's weekly benefit would be prorated to ((20%))twenty percent for a total of (($160))one hundred sixty dollars.
Example 2: An employee files a claim for eight hours of paid family and medical leave and takes sick leave from the employer for the same day. The employer does not offer the sick leave as a supplemental benefit payment. The sick leave is considered hours worked by the employee. The employee is being paid for the same hours claimed on paid family and medical leave. This employee is not eligible for benefits for this week.
Example 3: The employee's typical workweek hours are forty hours per week, and the weekly benefit amount is one thousand dollars. The employee files a claim for leave that starts on a Tuesday. Because the employee's claim did not include Sunday or Monday of that week, the employee's typical workweek hours and weekly benefit amount for that week will be prorated by two-sevenths, or two days of the seven days in the week. For that week only, the employee's typical workweek hours will be twenty-eight (five-sevenths of forty, rounded down to the nearest hour) and the weekly benefit amount will be seven hundred fourteen dollars (five-sevenths of one thousand dollars, rounded down to the nearest dollar).
AMENDATORY SECTION(Amending WSR 19-23-090, filed 11/19/19, effective 12/20/19)
WAC 192-800-035Who can appeal or submit a petition for review?
(1) An aggrieved ((person))party as defined in WAC 192-500-040 may file an appeal to the department by using the department's online services, or in another format approved by the department.
(2) Any aggrieved ((person))party who receives a decision from the office of administrative hearings, other than an order approving a withdrawal of appeal, a consent order, or an interim order, may file a written petition for review, including filing by using the department's online services, or in another format approved by the department.
AMENDATORY SECTION(Amending WSR 19-23-090, filed 11/19/19, effective 12/20/19)
WAC 192-800-045When can an appeal be withdrawn?
An aggrieved ((
person))
party may withdraw their appeal or petition for review upon approval by the office of administrative hearings or the commissioner's review office, respectively, at any time prior to the decision, in which case the determination, redetermination, order and notice of assessment of premiums or penalties, or other decision appealed, shall be final in accordance with the provisions of Title
50A RCW.
AMENDATORY SECTION(Amending WSR 19-23-090, filed 11/19/19, effective 12/20/19)
WAC 192-800-110What options are available for an aggrieved ((person))party who received an order of default?
(1) Any ((person))party aggrieved by the entry of an order of default may:
(a) File a motion to vacate the order of default with the office of administrative hearings within ((seven))ten days of ((issuance))the date of mailing of the order of default; or
(b) File a petition for review from such order by complying with the filing requirements set forth in WAC 192-800-100.
(2) The provisions in subsection (1)(a) of this section toll the appeal period for filing a timely petition for review with the commissioner's review office until the office of administrative hearings issues a ruling on the motion. However, should a petition for review be filed while a ruling on a motion to vacate is pending, the office of administrative hearings no longer has jurisdiction to vacate the default order.
(3) Under subsection (1)(a) of this section, an order of default will be vacated by the presiding officer only upon a showing of good cause for failure to appear or to request a postponement prior to the scheduled time for hearing. If the order of default is vacated, the presiding administrative law judge will conduct a hearing on the merits and issue a decision.
(4) Under subsection (1)(b) of this section, an order of default will be set aside by the commissioner's review office only upon a showing of good cause for failure to appear or to request a postponement prior to the scheduled time for hearing. In the event such an order of default is set aside, the commissioner will remand the matter to the office of administrative hearings for hearing and decision.