WSR 21-17-140
PERMANENT RULES
EMPLOYMENT SECURITY DEPARTMENT
[Filed August 18, 2021, 10:44 a.m., effective September 18, 2021]
Effective Date of Rule: Thirty-one days after filing.
Purpose: The adopted rules are the second of three phases of rules to implement portions of the long-term services and supports trust program in Title
50B RCW under the employment security department's authority. The rules address definitions, assessing and collecting premiums, self-employed elective coverage, collective bargaining agreements, and appeals.
Citation of Rules Affected by this Order: New WAC 192-900-005 Aggrieved party, 192-900-010 Calendar quarter, 192-900-015 Employer, 192-900-020 Employer agent, 192-900-025 Interested parties, 192-900-030 Self-employed, 192-900-035 Terms meaning deliver, 192-910-005 Employer reporting requirements, 192-910-010 When are employer premium payments due?, 192-910-015 What are the employer's responsibilities for premium deductions?, 192-910-020 How are payments applied to long-term services and supports premiums?, 192-915-005 Election of coverage for self-employed persons, 192-915-010 What are reportable wages for self-employed persons electing coverage?, 192-915-015 How will the department determine the wages earned and hours worked for self-employed persons electing coverage?, 192-920-005 Parties to collective bargaining agreements, 192-925-005 Adoption of model rules, 192-925-010 Who can appeal or submit a petition for review?, and 192-925-015 Sections of general procedural rules for appeal under chapter 192-800 WAC apply.
Adopted under notice filed as WSR 21-12-104 on June 2, 2021.
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, Washington relay 711 (contact Teresa Eckstein at 360-507-9890 for accommodations), email rules@esd.wa.gov, website https://esd.wa.gov/newsroom/rulemaking/ltss.
Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 18, Amended 0, Repealed 0.
Number of Sections Adopted at the Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.
Number of Sections Adopted on the Agency's own Initiative: New 0, Amended 0, Repealed 0.
Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, Amended 0, Repealed 0.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 18, Amended 0, Repealed 0.
Date Adopted: August 17, 2021.
April Amundson
Policy and Rules Manager
Leave and Care Division
OTS-3092.1
Chapter 192-900 WAC
DEFINITIONS
NEW SECTION
WAC 192-900-005Aggrieved party.
An "aggrieved party" is any interested party who receives an adverse decision from:
(1) The department for which the department has provided notice of appeal rights;
(2) The office of administrative hearings; or
(3) The commissioner's review office.
NEW SECTION
WAC 192-900-010Calendar quarter.
"Calendar quarter" has the meaning provided in WAC 192-500-020.
NEW SECTION
WAC 192-900-015Employer.
(1) An "employer" is:
(a) Any individual or type of organization, including any partnership, association, trust, estate, joint stock company, insurance company, limited liability company, or corporation, whether domestic or foreign, or the receiver, trustee in bankruptcy, trustee, or the legal representative of a deceased person, having any person in employment or, having become an employer, has not ceased to be an employer as provided in this chapter;
(b) The state, state institutions, and state agencies;
(c) Any unit of local government including, but not limited to, a county, city, town, municipal corporation, quasi-municipal corporation, or political subdivision; and
(d) A franchisee.
(2) "Employer" does not include the United States of America.
(3) The term employer is used for both employer and employer agent.
(4) This section does not apply to:
(a) Any self-employed person or federally recognized tribe that has not elected coverage under Title
50B RCW; or
(b) Any person performing casual labor as defined in RCW
50A.05.010.
NEW SECTION
WAC 192-900-020Employer agent.
"Employer agent" has the meaning provided in WAC 192-500-015.
NEW SECTION
WAC 192-900-025Interested parties.
(1) In all determinations, cases, and appeals adjudicated by the employment security department under Title
50B RCW, the department is an "interested party."
(2) Other interested parties in determinations, cases, and appeals include:
(a) The employee or former employee; and
(b) An employer or former employer of that employee that is required to provide information to the department related to the determination or appeal in question.
(3) The department may designate an employee or employer as an interested party in other determinations made by the department.
NEW SECTION
WAC 192-900-030Self-employed.
A "self-employed" person has the meaning provided in WAC 192-500-170.
NEW SECTION
WAC 192-900-035Terms meaning deliver.
(1) Unless otherwise specified, the terms "mail," "provide," "file," "submit," and "send" are interchangeable and mean to properly transmit, deliver, or distribute:
(a) By email or other electronic services; or
(b) In another format approved by the department.
(2) This section does not apply to appeals filed under Title
50B RCW.
OTS-3093.1
Chapter 192-910 WAC
ASSESSING AND COLLECTING PREMIUMS
NEW SECTION
WAC 192-910-005Employer reporting requirements.
Per RCW
50B.04.080, premium assessment, collection, and reporting procedures under Title
50B RCW must align with the procedures under Title
50A RCW to the extent feasible. The following reporting requirements under the paid family and medical leave program apply to the long-term services and supports trust program:
(1) WAC 192-510-025 What wages are reportable to the department for premium assessment purposes?
(2) WAC 192-540-030 What are employers required to report to the department?
(3) WAC 192-540-040 How should employers report hours for each calendar quarter?
(4) WAC 192-540-050 When are employers required to submit quarterly reports to the department?
NEW SECTION
WAC 192-910-010When are employer premium payments due?
(1) Premiums must be paid quarterly. Each payment must include the premiums owed on all wages subject to premiums during that calendar quarter. Payments are due to the department by the last day of the month following the end of the calendar quarter for which premiums are being paid.
(2) Payments made by mail are considered paid on the postmarked date. If the last day of the month falls on a Saturday, Sunday, or a legal holiday, the premium payment must be postmarked by the next business day.
(3) Premium payments are due within ten calendar days when a business is dissolved or the account is closed by the department.
NEW SECTION
WAC 192-910-015What are the employer's responsibilities for premium deductions?
(1) Employers must deduct premiums for each pay period in which the employee receives wages.
(2) When an employer is found by the department to be noncompliant with collecting premiums from an employee, the employer must file an amended report and pay the past due premiums.
(3) Subsection (1) of this section does not apply if:
(a) An employer was unable to deduct the premium for a pay period due to a lack of sufficient employee wages for that pay period; or
(b) The employee has an approved exemption under RCW
50B.04.085 and has provided the required proof of the exemption to the employer.
NEW SECTION
WAC 192-910-020How are payments applied to long-term services and supports premiums?
(1) A payment received with a premium assessment will be applied to the quarter for which the premium assessment applies. A payment exceeding the premiums due for that quarter will be applied to any other debt as provided in subsection (4) of this section.
(2) If no debt exists, premium overpayments of less than fifty dollars will be credited to future payments due.
(3) If no debt exists, premium overpayments of fifty dollars or more may be refunded to the employer at the employer's request. Otherwise, such overpayments will be credited to future payments due.
(4) Payments received will be applied in the following order of priority:
(a) Current quarter balance;
(b) Any previous quarter premium balance due starting with the oldest quarter;
(c) Then beginning with the oldest quarter in which a balance is owed.
OTS-3094.1
Chapter 192-915 WAC
SELF-EMPLOYED PERSONS
NEW SECTION
WAC 192-915-005Election of coverage for self-employed persons.
(1) Self-employed persons as defined in RCW
50B.04.090 may elect coverage under Title
50B RCW.
(2) Coverage may only be elected beginning January 1, 2022, and before January 1, 2025, or within three years of becoming self-employed for the first time.
(3) Notice of election of coverage must be submitted to the department online or in another format approved by the department.
(4) Elective coverage begins on the first day of the quarter immediately following the notice of election.
(5) A self-employed person who elects coverage must continue to pay premiums until such time that the individual retires from the workforce or is no longer self-employed.
(6) The self-employed person must file a notice with the department if the individual retires from the workforce or is no longer self-employed.
NEW SECTION
WAC 192-915-010What are reportable wages for self-employed persons electing coverage?
Each quarter, self-employed individuals who elected coverage under Title
50B RCW will report wages as described in WAC 192-510-031.
NEW SECTION
WAC 192-915-015How will the department determine the wages earned and hours worked for self-employed persons electing coverage?
The department will determine the wages earned and hours worked for self-employed individuals as described in WAC 192-510-030.
OTS-3095.1
Chapter 192-920 WAC
COLLECTIVE BARGAINING AGREEMENTS
NEW SECTION
WAC 192-920-005Parties to collective bargaining agreements.
(1) Parties to a collective bargaining agreement in existence on October 19, 2017, are not required to be subject to the rights and responsibilities under Title
50B RCW and related rules unless and until the existing agreement is reopened or renegotiated by the parties or expires.
(2) Employers must inform the department immediately upon the reopening, renegotiation, or expiration of a collective bargaining agreement that was in effect prior to October 19, 2017.
(3) Employees not covered by a collective bargaining agreement are subject to the rights and responsibilities of Title
50B RCW and related rules. Employers are also subject to the rights and responsibilities of Title
50B RCW and related rules for employees not covered by a collective bargaining agreement, regardless of whether the employer is party to a collective bargaining agreement covering other employees.
(4) Employers party to multiple collective bargaining agreements among different bargaining units are subject to the rights and responsibilities of Title
50B RCW and related rules as they pertain to the bargaining units whose collective bargaining agreement is reopened or renegotiated by the parties or expires, on or after October 19, 2017.
(5) Parties to a collective bargaining agreement in existence on October 19, 2017, that has not been reopened or renegotiated by the parties or expired may elect to be subject to all applicable rights and responsibilities under Title
50B RCW and related rules prior to the expiration, reopening, or renegotiation of the agreement. Parties seeking to do so must submit to the department a memorandum of understanding, letter of agreement, or a similar document signed by all parties.
OTS-3096.1
Chapter 192-925 WAC
APPEALS AND PROCEDURE
NEW SECTION
WAC 192-925-005Adoption of model rules.
The model rules of procedure contained in chapter 10-08 WAC, are, to the extent they are not inconsistent with the rules contained in this chapter, adopted as the rules of procedure for Title
50B RCW. The rules contained in this will, to the extent of any conflict with the model rules of procedure, be deemed to supersede the conflicting provisions of the model rules of procedure.
NEW SECTION
WAC 192-925-010Who can appeal or submit a petition for review?
(1) An aggrieved party as defined in WAC 192-900-005 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 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.
NEW SECTION
WAC 192-925-015Sections of general procedural rules for appeal under chapter 192-800 WAC apply.
Per RCW
50B.04.120, appeal procedures under Title
50B RCW must align with the appeal procedures under Title
50A RCW. The following general procedural rules for appeal under the paid family and medical leave program apply to the long-term services and supports trust program:
(1) WAC 192-800-040 What are the timeliness requirements for submitting an appeal or a petition for review?
(2) WAC 192-800-045 Can an appeal be withdrawn?
(3) WAC 192-800-050 What happens after an appeal is submitted?
(4) WAC 192-800-055 Who will be notified if an appeal is filed and what will it include?
(5) WAC 192-800-060 What happens if an appeal or a petition has been filed and one of the parties has a change of contact information?
(6) WAC 192-800-065 How does the time computation work for perfecting an appeal or petition for review?
(7) WAC 192-800-070 Who can give testimony and examine witnesses during an appeal hearing?
(8) WAC 192-800-075 Who can request a postponement of a hearing?
(9) WAC 192-800-080 Will depositions and written discovery be permitted?
(10) WAC 192-800-085 When will administrative law judges hear consolidated cases?
(11) WAC 192-800-090 What is included in decisions issued by the office of administrative hearings?
(12) WAC 192-800-095 Can a decision of the commissioner incorporate a decision under review?
(13) WAC 192-800-100 What is the process for filing petition for review and any reply to the petition for review?
(14) WAC 192-800-105 When and how can an administrative law judge dispose of an appeal?
(15) WAC 192-800-110 What options are available for an aggrieved party who received an order of default?
(16) WAC 192-800-115 What is the process for filing a petition for reconsideration to the commissioner's review office?
(17) WAC 192-800-120 When would the commissioner not issue declaratory orders?
(18) WAC 192-800-125 When is a petition for review considered delivered to the department?