S-2840

AN ACT Relating to leave from employment for family responsibilities; amending RCW 49.78.010, 49.78.020, 49.78.030, 49.78.040, 49.78.050, 49.78.070, and 49.78.130; adding a new section to chapter 49.12 RCW; adding new sections to chapter 49.78 RCW; repealing RCW 49.78.060 and 49.78.210; providing an effective date; and declaring an emergency.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

Sec. 1. RCW 49.78.010 and 1989 1st ex.s. c 11 s 1 are each amended to read as follows:

The legislature finds that the demands of the workplace and of families need to be balanced to promote family stability and economic security. Changes in workplace leave policies are desirable to accommodate changes in the work force such as rising numbers of dual-career couples and working single parents. In addition, given the mobility of American society, many people no longer have available community or family support networks and therefore need additional flexibility in the workplace to meet family care responsibilities, including responsibilities involving their children's education. The legislature declares it to be in the public interest to provide reasonable family leave upon the birth or adoption of a child and to care for a ((~~child under eighteen years old with a terminal~~)) family member with a serious health condition.

Sec. 2. RCW 49.78.020 and 1989 1st ex.s. c 11 s 2 are each amended to read as follows:

Unless the context clearly requires otherwise, the definitions in this section apply throughout this chapter.

(1) "Child" means a biological ((or)), adopted, or foster child, a legal ward, or a stepchild((~~, living with the employee~~)).

(2) "Department" means the department of labor and industries.

(3) "Employee" means a person other than an independent contractor employed by an employer ((~~on a continuous basis for the previous~~)) for at least fifty-two weeks within the previous seventy-eight weeks and for at least ((~~thirty-five~~)) an average of thirty-two hours per week.

(4) "Employer" means: (a) Any person, firm, corporation, partnership, business trust, legal representative, or other business entity which engages in any business, industry, profession, or activity in this state and includes any unit of local government including, but not limited to, a county, city, town, municipal corporation, quasi-municipal corporation, or political subdivision, which (i) employed a daily average of ((~~one hundred~~)) fifty or more employees during the last calendar quarter at the place where the employee requesting leave reports for work, or (ii) employed a daily average of ((~~one hundred~~)) fifty or more employees during the last calendar quarter within a twenty mile radius of the place where the employee requesting leave reports for work, where the employer maintains a central hiring location and customarily transfers employees among workplaces; and (b) the state, state institutions, and state agencies.

(5) "Family leave" means leave from employment, as provided in RCW 49.78.030, to care for a newborn ((or)), a newly adopted child ((~~under the age of six or a child under eighteen years old with a terminal health condition, as provided in RCW 49.78.030~~)), or a newly placed foster child, or to care for a family member with a serious health condition.

(6) "Family educational leave" means leave from employment, as provided in section 9 of this 1991 act, to volunteer in classroom activities in a school program in grades K-12 for a family member.

(7) "Family member" means a child of the employee, the spouse of the employee, or a parent of the employee or the employee's spouse.

(8) "Health care provider" means a person licensed as a physician under chapter 18.71 ((~~RCW or an osteopath under chapter~~)) or 18.57 RCW.

((~~(7)~~)) (9) "Parent" means a biological, foster, or adoptive parent, ((or)) a stepparent, or legal guardian.

((~~(8)~~)) (10) "Reduced leave schedule" means leave scheduled for fewer than an employee's usual number of hours or days per workweek.

(((9) "Terminal health condition" means a condition caused by injury, disease, or illness, that, within reasonable medical judgment, is incurable and will produce death within the period of leave to which the employee is entitled.))

(11) "Serious health condition" means an illness, injury, impairment, or physical or mental condition, whether or not preexisting, that requires:

(a) Inpatient care in a hospital, hospice, or residential medical care facility; or

(b) Continuing treatment or continuing supervision by a health care provider.

Sec. 3. RCW 49.78.030 and 1989 1st ex.s. c 11 s 3 are each amended to read as follows:

(1) An employee is entitled to twelve workweeks of family leave during any twenty-four month period to: (a) Care for a newborn child ((or)) of the employee, an adopted child of the employee who is under the age of ((~~six~~)) sixteen at the time of placement for adoption((,)) or((,)) a foster child when placement with the employee is the permanent plan and the foster child is under the age of sixteen at the time of placement; or (b) care for ((~~a child under eighteen years old of the employee who has a terminal~~)) a family member with a serious health condition. Leave under subsection (1)(a) of this section shall be completed within twelve months after the birth or placement for adoption or foster care, as applicable. ((~~An employee is entitled to leave under subsection (1)(b) of this section only once for any given child~~)) For the leave under subsection (1)(b) of this section to apply for the care of the employee's child, the child must be under the age of eighteen, or be eighteen years of age or older and incapable of self-care because of a mental or physical impairment.

(2) Family leave may be taken on a reduced leave schedule subject to the approval of the employer.

(3) The leave required by this section may be unpaid. If an employer provides paid family leave for fewer than twelve workweeks, the additional workweeks of leave added to attain the twelve-workweek total may be unpaid. An employer may require an employee to first use up the employee's total accumulation of leave to which the employee is otherwise entitled before going on family leave; however, except as provided in subsection (4) of this section, nothing in this section requires more than twelve total workweeks of family leave during any twenty-four month period. An employer is not required to allow an employee to use the employee's other leave in place of the leave provided under this chapter.

(4) The leave required by this section is in addition to any leave for sickness or temporary disability because of pregnancy or childbirth.

(5) An employer may limit or deny family leave to either:

(a) Up to ten percent of the employer's ((~~workforce~~)) work force in the state designated as key personnel by the employer. Any designation made under this ((~~section~~)) subsection (a) shall take effect thirty days after it is issued and may be changed no more than once in any twelve-month period. The designation shall be in writing and shall be displayed in a conspicuous place. An employer shall not designate key personnel on the basis of age or gender or for the purpose of evading the requirements of this chapter. No employee may be designated as key personnel after giving notice of intent to take leave pursuant to RCW 49.78.040((~~. The designation shall be in writing and shall be displayed in a conspicuous place~~)); or

(b) If the employer does not designate key personnel, the employees designated as the highest paid ten percent of the employer's employees in the state. Any designation made under this subsection (b) shall be in writing and may be changed no more than once in any twelve-month period. The designation shall take effect thirty days after the affected employees have been given written notice.

Sec. 4. RCW 49.78.040 and 1989 1st ex.s. c 11 s 4 are each amended to read as follows:

(1) An employee planning to take family leave under RCW 49.78.030(1)(a) shall provide the employer with written notice at least thirty days in advance of the anticipated date of delivery or placement for adoption or foster care, stating the dates during which the employee intends to take family leave. The employee shall adhere to the dates stated in the notice unless:

(a) The birth is premature;

(b) The mother is incapacitated due to birth such that she is unable to care for the child;

(c) The employee takes physical custody of the newly adopted child at an unanticipated time and is unable to give notice thirty days in advance; ((or))

(d) The employee takes physical custody of the newly placed foster child at an unanticipated time and is unable to give notice thirty days in advance; or

(e) The employer and employee agree to alter the dates of family leave stated in the notice.

(2) In cases of premature birth, incapacity, or unanticipated placement for adoption or foster care referred to in subsection (1) of this section, the employee must give notice of revised dates of family leave as soon as possible but at least within one working day of the birth or placement ((~~for adoption~~)) or incapacitation of the mother.

(3) If family leave under RCW 49.78.030(1)(b) is foreseeable, the employee shall provide the employer with written notice at least fourteen days in advance of the expected leave and shall make a reasonable effort to schedule the leave so as not to unduly disrupt the operations of the employer. If family leave under RCW 49.78.030(1)(b) is not foreseeable fourteen or more days before the leave is to take place, the employee shall notify the employer of the expected leave as soon as possible, but at least within one working day of the beginning of the leave.

(4) If the employee fails to give the notice required by this section, the employer may reduce or increase the family leave required by this chapter by three weeks.

Sec. 5. RCW 49.78.050 and 1989 1st ex.s. c 11 s 5 are each amended to read as follows:

(1) In the event of any dispute under this chapter regarding premature birth, incapacitation of the mother, maternity disability, or ((~~terminal condition of a child~~)) serious health condition of a family member, an employer may require confirmation by a health care provider of: (a) The date of the birth; (b) the date on which incapacity because of childbirth or disability because of pregnancy or childbirth commenced or will probably commence, and its probable duration; or (c) for family leave under RCW 49.78.030(1)(b), the fact that the ((~~child has a terminal~~)) family member has a serious health condition.

(2) An employer may require, at the employer's expense, that the employee obtain the opinion of a second health care provider selected by the employer concerning any information required under subsection (1) of this section. If the health care providers disagree on any factor which is determinative of the employee's eligibility for family leave, the two health care providers shall select a third health care provider, whose opinion, obtained at the employer's expense, shall be conclusive.

Sec. 6. RCW 49.78.070 and 1989 1st ex.s. c 11 s 7 are each amended to read as follows:

(1) Subject to subsection (2) of this section, an employee who exercises any right provided under RCW 49.78.030 shall be entitled, in the following order of priority, upon return from leave or during any reduced leave schedule:

(a) To the same position held by the employee when the leave commenced; or

(b) If the employer's circumstances have so changed that the employee cannot be reinstated under (a) of this subsection, to a position with equivalent benefits and pay at a workplace within twenty miles of the employee's workplace when leave commenced; or

(c) If the employer's circumstances have so changed that the employee cannot be reinstated ((~~to the same position, or a position of equivalent pay and benefits~~)) under either (a) or (b) of this subsection, the employee shall be reinstated in any other position which is vacant and for which the employee is qualified. The filling of a position held by an employee on family leave under this chapter shall not by itself constitute changed circumstances.

(2) The entitlement under subsection (1) of this section is subject to bona fide changes in compensation or work duties, and does not apply if:

(a) The employee's position is eliminated by a bona fide restructuring, or reduction-in-force;

(b) The employee's workplace is permanently or temporarily shut down for at least thirty days;

(c) The employee's workplace is moved to a location at least sixty miles from the location of the workplace when leave commenced;

(d) An employee on family leave takes ((~~another job~~)) a job with another employer working twenty hours or more per week; or

(e) The employee fails to provide timely notice of family leave as required under RCW 49.78.040, or fails to return on the established ending date of leave.

Sec. 7. RCW 49.78.130 and 1989 1st ex.s. c 11 s 13 are each amended to read as follows:

No employer, employment agency, labor union, or other person shall discharge, expel, or otherwise discriminate against any person because he or she has opposed any practices forbidden by this chapter, or because he or she has filed a complaint, testified, or assisted in any proceeding under this chapter, or has exercised any rights afforded by this chapter. No employer policy may be applied to limit or discourage the use of the leave rights available under this chapter.

NEW SECTION. Sec. 8. A new section is added to chapter 49.12 RCW to read as follows:

No employer may discharge or in any manner discriminate against any employee because he or she has filed a complaint, testified, or assisted in any proceeding under RCW 49.12.270 through 49.12.295, or has exercised any rights afforded by RCW 49.12.270 through 49.12.295. No employer policy may be applied to limit or discourage the use of the leave rights available under RCW 49.12.270 through 49.12.295.

NEW SECTION. Sec. 9. The following acts or parts of acts are each repealed:

(1) RCW 49.78.060 and 1989 1st ex.s. c 11 s 6; and

(2) RCW 49.78.210 and 1989 1st ex.s. c 11 s 21.

NEW SECTION. Sec. 10. A new section is added to chapter 49.78 RCW to read as follows:

(1) An employee is entitled to sixteen hours of family educational leave during any twenty-four month period. The leave may be unpaid. If an employer provides paid family educational leave for fewer than sixteen hours, the additional hours of leave added to attain the sixteen-hour total may be unpaid.

(2) The taking of leave under this section shall not result in the loss of any benefit, including seniority or pension rights, accrued before the date on which the leave commenced.

(3) Family educational leave may be taken on a reduced leave schedule subject to the approval of the employer.

(4) The leave required by this section is in addition to family leave provided under RCW 49.78.030.

(5) An employer may require verification of participation in classroom activities.

(6) An employer may limit or deny family educational leave to either:

(a) Up to ten percent of the employer's work force in the state designated as key personnel by the employer. Any designation made under this subsection (a) shall take effect thirty days after it is issued and may be changed no more than once in any twelve-month period. The designation shall be in writing and shall be displayed in a conspicuous place. An employer shall not designate key personnel on the basis of age or gender or for the purpose of evading the requirements of this chapter. No employee may be designated as key personnel after giving notice of intent to take leave under section 11 of this act; or

NEW SECTION. Sec. 11. A new section is added to chapter 49.78 RCW to read as follows:

(1) An employee planning to take family educational leave under section 10 of this act shall provide the employer with written notice at least thirty days in advance of the anticipated date or dates of family educational leave, stating the dates during which the employee intends to take family educational leave.

(2) If the employee fails to give the notice required by this section, the employer may deny that request for family educational leave.

NEW SECTION. Sec. 12. A new section is added to chapter 49.78 RCW to read as follows:

To facilitate the orderly application of chapter ___ (S-2840/91), Laws of 1991, to employees covered by an unexpired collective bargaining agreement that expires on or after September 1, 1991, or by an employee benefit program or plan with a stated year ending on or after the effective date of this section, the chapter shall apply to these employees the later of: (1) The first day following expiration of the collective bargaining agreement; or (2) the first day of the next plan year, as applicable.

NEW SECTION. Sec. 13. This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and shall take effect September 1, 1991.