FINANCIAL MANAGEMENT

[Filed October 2, 2020, 4:15 p.m.]

Proposal is exempt under RCW 34.05.310(4) or 34.05.330(1).

Title of Rule and Other Identifying Information: WAC 357-26-035 What actions must an employer take to provide reasonable pregnancy accommodations?, 357-26-040 When may an employer deny a reasonable pregnancy-related accommodation?, and 357-26-045 When an employee is pregnant or has a pregnancy-related health condition and requests a reasonable pregnancy accommodation what documentation may the employee be required to submit?

Hearing Location(s): On November 12, 2020, at 8:30 a.m. Office of Financial Management, audio conference only, Dial-in (888) 285-8919, Enter pin: 8101730, Code (if asked): 415.

Date of Intended Adoption: November 19, 2020.

Submit Written Comments to: Caroline Kirk, Office of Financial Management, P.O. Box 47500, Olympia, WA 98501, email caroline.kirk@ofm.wa.gov, fax 360-586-4694, by November 5, 2020.

Assistance for Persons with Disabilities: Contact office of financial management, TTY 711 or 1-800-833-6384, by November 5, 2020.

Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: Chapter 134, Laws of 2020 (HB 2266) was passed during the 2020 legislative session with an effective date of June 11, 2020. This bill amends RCW 43.10.005 by adding language that an employer may not require an employee to provide written certification from a health care professional when the employee requests a reasonable accommodation for the expression of breast milk. The amendment to WAC 357-26-035 adds the reasons in which an employer may provide a reasonable pregnancy accommodation. The amendment to WAC 357-26-040 amends the reasons when an employer may deny a reasonable pregnancy-related accommodation. The amendment to WAC 357-26-045 amends for what reasons an employee may need to provide documentation for a requested reasonable pregnancy accommodation.

Reasons Supporting Proposal: To align Title 357 WAC with the changes made to RCW 43.10.005 effective June 11, 2020.

Statutory Authority for Adoption: Chapter 43.01 RCW.

Statute Being Implemented: RCW 43.10.005.

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

Name of Proponent: [Not supplied by agency], governmental.

Name of Agency Personnel Responsible for Drafting, Implementation, and Enforcement: Caroline Kirk, 128 10th Avenue, Olympia, WA 98501, 360-407-4136.

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

A cost-benefit analysis is not required under RCW 34.05.328. Rules are related to internal government operations and are not subject to violation by a nongovernmental party. See RCW 34.05.328 (5)(b)(ii) for exemption.

This rule proposal, or portions of the proposal, is exempt from requirements of the Regulatory Fairness Act because the proposal:

Is exempt under RCW 19.85.025(3) as the rules relate only to internal governmental operations that are not subject to violation by a nongovernment party.

Assistant Director of

Legal and Legislative Affairs

AMENDATORY SECTION(Amending WSR 19-17-041, filed 8/15/19, effective 9/23/19)

WAC 357-26-035What actions must an employer take to provide reasonable pregnancy accommodations?

(1) An employer must provide employees who are pregnant or have a pregnancy-related health condition a reasonable pregnancy accommodation ((for reasons as required in RCW 43.10.005.)), which includes the following:

(a) Providing more frequent, longer, or flexible restroom breaks;

(b) Modifying a no food or drink policy;

(d) Providing reasonable break time for an employee to express breast milk for two years after the child's birth each time the employee has need to express the milk and providing a private location, other than a bathroom, if such a location exists at the place of business or worksite, which may be used by the employee to express breast milk. If the business location does not have a space for the employee to express breast milk, the employer shall work with the employee to identify a convenient location and work schedule to accommodate their needs;

(e) Job restructuring, part-time or modified work schedules, reassignment to a vacant position, or acquiring or modifying equipment, devices, or an employee's work station;

(f) Providing a temporary transfer to a less strenuous or less hazardous position;

(g) Providing assistance with manual labor and limits on lifting;

(h) Scheduling flexibility for prenatal visits; and

(i) Any further pregnancy accommodation an employee may request and to which an employer must give reasonable consideration in consultation with information provided on pregnancy accommodation by the department of labor and industries or the employee's attending health care provider.

(2) An employer cannot require an employee who is pregnant or has a pregnancy-related health condition to take leave if another reasonable pregnancy accommodation can be provided.

(3) The employer is not required to create additional employment that the employer would not otherwise have created, unless the employer does so or would do so for other classes of employees who need accommodation.

AMENDATORY SECTION(Amending WSR 19-05-056, filed 2/15/19, effective 3/29/19)

WAC 357-26-040When may an employer deny a reasonable pregnancy-related accommodation?

The employer may deny a reasonable pregnancy-related accommodation based on undue hardship, which means an action requiring significant difficulty or expense, to the employer's program, enterprise or business for pregnancy accommodations listed in WAC 357-26-035 (1)(d) through (((h)))(i). The employer may not claim undue hardship for the pregnancy accommodations listed in WAC 357-26-035 (1)(a) through (c) or for limits on lifting over seventeen pounds.

AMENDATORY SECTION(Amending WSR 19-05-056, filed 2/15/19, effective 3/29/19)

WAC 357-26-045When an employee is pregnant or has a pregnancy-related health condition and requests a reasonable pregnancy accommodation what documentation may the employee be required to submit?

When an employee is pregnant or has a pregnancy-related health condition and requests a reasonable pregnancy accommodation, the employee may be required to submit written certification from their licensed physician or health care professional for those pregnancy accommodations listed in WAC 357-26-035 (1)(((d)))(e) through (((h)))(i). An employee is not required to submit written certification for pregnancy accommodations listed in WAC 357-26-035 (1)(a) through (((c)))(d) or for limits lifting over seventeen pounds.