WSR 22-10-107

PROPOSED RULES

DEPARTMENT OF

LABOR AND INDUSTRIES

[Filed May 4, 2022, 11:25 a.m.]

Original Notice.

Preproposal statement of inquiry was filed as WSR 22-02-055.

Title of Rule and Other Identifying Information: Safety and health discrimination protections (ESHB 1097): Chapter 296-360 WAC, Discrimination.

Hearing Location(s): On June 8, 2022, at 9:00 a.m. Join virtually via Zoom https://lni-wa-gov.zoom.us/j/87608567723?pwd=cXdRQzVyaHdrR2V0alhOTGdPaEt6QT09; or join by phone 253-215-8782, Meeting ID 876 0856 7723, Passcode 01697458. The hearing will start at 9:00 a.m. and continue until all oral comments are received.

Date of Intended Adoption: July 1, 2022.

Submit Written Comments to: Josefina Magana, Department of Labor and Industries (L&I), Division of Occupational Safety and Health (DOSH), P.O. Box 44620, Olympia, WA 98504-4620, email Josefina.Magana@Lni.wa.gov, fax 360-902-5619, by June 15, 2022.

Assistance for Persons with Disabilities: Contact Josefina Magana, phone 360-902-4233, email Josefina.Magana@Lni.wa.gov, by June 1, 2022.

Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: The Washington Industrial Safety and Health Act (WISHA), under chapter 49.17 RCW, protects workers from discrimination or retaliation for exercising their rights under WISHA to a safety and healthful workplace. 2021's ESHB 1097 made changes to the WISHA discrimination protections under RCW 49.17.160. The changes to RCW 49.17.160 under ESHB 1097 go into effect on July 1, 2022.

Under ESHB 1097, L&I's DOSH has the authority to issue administrative orders when investigations of discrimination complaints find sufficient evidence that an employer violated RCW 49.17.160. The proposed rules update chapter 296-360 WAC, Discrimination, to include a process for issuance of citations and notices of assessments to order relief to the worker and penalties to the employer and a process for employer and employee appeals of the citation and notice of assessment. Other updates under the proposed rule needed to implement ESHB 1097 include changing the time to file a safety and health discrimination complaint from 30 to 90 days and clarifying the definition of discrimination.

The proposed rules also make changes to align with Washington state case law specific to "substantial factor" causation test, where a violation of RCW 49.17.160 occurs when an employee's engagement in protected activity was a substantial factor in the employer's decision for the adverse action. The current rule is based on the Occupational Safety and Health Administration's (OSHA) interpretative rules applying federal case law to discrimination under Section 11(c) of the Occupational Safety and Health Act (OSH Act). The change to apply Washington case law is necessary to ensure DOSH applies the appropriate standard used by Washington courts in its investigations and orders issued under ESHB 1097.

The proposed rule also makes changes to clarify the rule.

WAC 296-360-005 Definitions:

Reasons Supporting Proposal: The Washington state legislature updated RCW 49.17.160 in 2021, changing how L&I handles complaints alleging discrimination, timing for when complaints and appeals must be made, allowing for civil penalties for violations and recognized that discrimination can be alleged when a workplace culture disincentives employees from raising safety and health concerns. The proposal is necessary to align current L&I rules with changes made under ESHB 1097 and ensure employers and complainants know their rights and responsibilities.

The proposed rules also make changes to align with Washington state case law specific to "substantial factor" causation test, where a violation of RCW 49.17.160 occurs when an employee's engagement in protected activity was a substantial factor in the employer's decision for the adverse action. This change is necessary to ensure DOSH applies the appropriate standard used by Washington courts in its investigations and orders issued under ESHB 1097. The current language under WAC 296-360-090 is based on OSHA's discrimination rule under 29 C.F.R. 1977.6 interpreting Section 11(c) of the OSH Act. Currently, WAC 296-360-090 identifies two ways in which a causal connection between protected activity and adverse action could be established: (1) If protected activity was a substantial reason for the adverse action; or (2) if the adverse action would not have taken place "but for" engagement in protected activity. In September 2021, OSHA amended 29 C.F.R. 1977.6 to clarify that the test for showing a nexus between protected activity and adverse action is "but-for" causation only, citing United States Supreme Court cases interpreting discrimination statutes that address adverse actions that occurs "because of" an employee's engagement in a protected activity, 86 F.R. 49472, September 3, 2021. However, the Washington state supreme court has held that the "substantial factor" test is the appropriate test for discrimination cases in Washington. Wilmot v. Kaiser Aluminum & Chem. Corp., 118 Wn.2d 46, 821 P.2d 18, (1991) (discrimination based on filing workers' compensation claim), Mackay v. Acorn Custom Cabinetry, Inc., 127 Wn.2d 302, 898 P.2d 284 (1995) (discrimination based on gender.); Scrivener v. Clark College, 181 Wn.2d 439, 444, 334 P.3d 541 (2014) (discrimination based on age); Allison v. Housing Authority of Seattle, 118 Wn.2d 79, 95-96, 821 P.2d 34 (1991) (case of age discrimination in housing.) The discrimination statutes in the Washington supreme court cases references above prohibit discrimination "because of" a protected activity or protected status. As a remedial statute, WISHA and its regulations are liberally construed to carry out its purpose. Adkins v. Aluminum Co. of America, 110 Wn.2d 128, 146, 750 P.2d 1257 (1988).

Statutory Authority for Adoption: RCW 49.17.040 and 49.17.050.

Statute Being Implemented: RCW 49.17.160; section 3, chapter 253, Laws of 2021.

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

Agency Comments or Recommendations, if any, as to Statutory Language, Implementation, Enforcement, and Fiscal Matters: Not applicable.

Name of Proponent: L&I, governmental.

Name of Agency Personnel Responsible for Drafting: Chris Miller, Tumwater, Washington, 360-902-5516; Implementation and Enforcement: Craig Blackwood, Tumwater, Washington, 360-902-5828.

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. The rule is exempt under RCW 34.05.328 (5)(b)(ii) relates to internal governmental operations, 34.05.328 (5)(b)(iii) by incorporating statutory language without material change, and 34.05.328 (5)(b)(iv) provides housekeeping and clarifying edits. Changes setting forth interpretation of applicable Washington case law to the statute are interpretive rules under RCW 34.05.328 (5)(c)(ii) and not considered significant legislative rules per RCW 34.05.328 (5)(c)(iii).

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; rules are adopting or incorporating by reference without material change federal statutes or regulations, Washington state statutes, rules of other Washington state agencies, shoreline master programs other than those programs governing shorelines of statewide significance, or, as referenced by Washington state law, national consensus codes that generally establish industry standards, if the material adopted or incorporated regulates the same subject matter and conduct as the adopting or incorporating rule; and rules only correct typographical errors, make address or name changes, or clarify language of a rule without changing its effect.

The proposed rule does not impose more-than-minor costs on businesses. Following is a summary of the agency's analysis showing how costs were calculated. The rule applies to all employers in Washington state but does not impose any costs. The rule establishes a penalty for non-compliance but that is only in the event that a violation has been found. Other changes set forth interpretation of applicable Washington case law to the statute interpretive rules under RCW 34.05.328 (5)(c)(ii).

May 4, 2022

Joel Sacks

Director

OTS-3642.3