FINANCIAL MANAGEMENT

[Filed November 20, 2020, 8:29 a.m., effective December 28, 2020]

Effective Date of Rule: December 28, 2020.

Purpose: To align Title 357 WAC with the changes made to RCW 43.10.005 as a result of chapter 134 [111], Laws of 2020 (HB 2266). HB 2266 amends RCW 43.10.005 by adding language to state 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 accommodation for pregnancy. 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 the reasons an employee may need to provide documentation for a requested reasonable pregnancy accommodation.

Citation of Rules Affected by this Order: Amending WAC 357-26-035, 357-26-040, and 357-26-045.

Statutory Authority for Adoption: Chapter 43.01 RCW.

Other Authority: RCW 43.10.005.

Adopted under notice filed as WSR 20-20-080 on October 2, 2020.

Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 0, Amended 3, Repealed 0.

Number of Sections Adopted at the Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.

Number of Sections Adopted on the Agency's own Initiative: New 0, Amended 3, Repealed 0.

Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, Amended 0, Repealed 0.

Number of Sections Adopted using Negotiated Rule Making: New 0, Amended 0, Repealed 0; Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 0, Amended 3, Repealed 0.

Date Adopted: November 20, 2020.

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.