BP BHEAD INT S

AN ACT Relating to reproductive health and status; amending RCW 49.17.050, 49.60.180, 49.60.190, 49.60.200, 70.58.320, 70.58.322, 70.58.324, 70.58.330, 70.58.338, and 70.58.350; reenacting and amending RCW 49.60.040; adding a new section to chapter 18.76 RCW; adding a new section to chapter 49.12 RCW; creating a new section; and prescribing penalties.

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

NEW SECTION. Sec. 1. The legislature finds that some substances used in the workplace can cause birth defects or constitute a hazard to an employee's reproductive system. Employee exposure to such substances should be limited and employers should disclose to their employees any risks that even limited exposure may pose to their reproductive capacity. The legislature further finds that discrimination in the workplace because of reproductive status is an increasing concern. Information about workplace reproductive hazards is needed to assist in individual, corporate, and government decision making.

Sec. 2. RCW 49.17.050 and 1973 c 80 s 5 are each amended to read as follows:

In the adoption of rules ((~~and regulations~~)) under the authority of this chapter, the director shall:

(1) Provide for the preparation, adoption, amendment, or repeal of rules ((~~and regulations~~)) of safety and health standards governing the conditions of employment of general and special application in all work places;

(2) Provide for the adoption of occupational health and safety standards which are at least as effective as those adopted or recognized by the United States secretary of labor under the authority of the Occupational Safety and Health Act of 1970 (Public Law 91-596; 84 Stat. 1590);

(3) Provide a method of encouraging employers and employees in their efforts to reduce the number of safety and health hazards at their work places and to stimulate employers and employees to institute new and to perfect existing programs for providing safe and healthful working conditions;

(4) Provide for the promulgation of health and safety standards and the control of conditions in all work places concerning gases, vapors, dust, or other airborne particles, toxic materials, or harmful physical agents which shall set a standard which most adequately assures, to the extent feasible, on the basis of the best available evidence, that no employee will suffer material impairment of health or functional capacity, reproductive disorders, or adverse pregnancy outcomes even if such employee has regular exposure to the hazard dealt with by such standard for the period of his or her working life; any such standards shall require where appropriate the use of protective devices or equipment and for monitoring or measuring any such gases, vapors, dust, or other airborne particles, toxic materials, or harmful physical agents;

(5) Provide for appropriate reporting procedures by employers with respect to such information relating to conditions of employment which will assist in achieving the objectives of this chapter;

(6) Provide for the frequency, method, and manner of the making of inspections of work places without advance notice; ((~~and,~~))

(7) Provide for the publication and dissemination to employers, employees, and labor organizations and the posting where appropriate by employers of informational, education, or training materials calculated to aid and assist in achieving the objectives of this chapter;

(8) Provide for the establishment of new and the perfection and expansion of existing programs for occupational safety and health education for employers and employees, and, in addition institute methods and procedures for the establishment of a program for voluntary compliance solely through the use of advice and consultation with employers and employees with recommendations including recommendations of methods to abate violations relating to the requirements of this chapter and all applicable safety and health standards and rules ((~~and regulations promulgated~~)) adopted pursuant to the authority of this chapter;

(9) Provide for the adoption of safety and health standards requiring the use of safeguards in trenches and excavations and around openings of hoistways, hatchways, elevators, stairways, and similar openings; and

(10) Provide for the promulgation of health and safety standards requiring the use of safeguards for all vats, pans, trimmers, cut off, gang edger, and other saws, planers, presses, formers, cogs, gearing, belting, shafting, coupling, set screws, live rollers, conveyors, mangles in laundries, and machinery of similar description, which can be effectively guarded with due regard to the ordinary use of such machinery and appliances and the danger to employees therefrom, and with which the employees of any such work place may come in contact while in the performance of their duties and prescribe methods, practices, or processes to be followed by employers which will enhance the health and safety of employees in the performance of their duties when in proximity to machinery or appliances mentioned in this subsection.

NEW SECTION. Sec. 3. A new section is added to chapter 18.76 RCW to read as follows:

The state poison control network centers shall include information about the reproductive hazards of the substances for which the center provides information.

Sec. 4. RCW 49.60.040 and 1985 c 203 s 2 and 1985 c 185 s 2 are each reenacted and amended to read as follows:

As used in this chapter:

"Person" includes one or more individuals, partnerships, associations, organizations, corporations, cooperatives, legal representatives, trustees and receivers, or any group of persons; it includes any owner, lessee, proprietor, manager, agent, or employee, whether one or more natural persons; and further includes any political or civil subdivisions of the state and any agency or instrumentality of the state or of any political or civil subdivision thereof;

"Commission" means the Washington state human rights commission;

"Employer" includes any person acting in the interest of an employer, directly or indirectly, who employs eight or more persons, and does not include any religious or sectarian organization not organized for private profit;

"Employee" does not include any individual employed by his or her parents, spouse, or child, or in the domestic service of any person;

"Labor organization" includes any organization which exists for the purpose, in whole or in part, of dealing with employers concerning grievances or terms or conditions of employment, or for other mutual aid or protection in connection with employment;

"Employment agency" includes any person undertaking with or without compensation to recruit, procure, refer, or place employees for an employer;

"National origin" includes "ancestry";

"Full enjoyment of" includes the right to purchase any service, commodity, or article of personal property offered or sold on, or by, any establishment to the public, and the admission of any person to accommodations, advantages, facilities, or privileges of any place of public resort, accommodation, assemblage, or amusement, without acts directly or indirectly causing persons of any particular race, creed, color, sex, or with any sensory, mental, or physical handicap, or a blind or deaf person using a trained dog guide, to be treated as not welcome, accepted, desired, or solicited;

"Any place of public resort, accommodation, assemblage, or amusement" includes, but is not limited to, any place, licensed or unlicensed, kept for gain, hire, or reward, or where charges are made for admission, service, occupancy, or use of any property or facilities, whether conducted for the entertainment, housing, or lodging of transient guests, or for the benefit, use, or accommodation of those seeking health, recreation, or rest, or for the burial or other disposition of human remains, or for the sale of goods, merchandise, services, or personal property, or for the rendering of personal services, or for public conveyance or transportation on land, water, or in the air, including the stations and terminals thereof and the garaging of vehicles, or where food or beverages of any kind are sold for consumption on the premises, or where public amusement, entertainment, sports, or recreation of any kind is offered with or without charge, or where medical service or care is made available, or where the public gathers, congregates, or assembles for amusement, recreation, or public purposes, or public halls, public elevators, and public washrooms of buildings and structures occupied by two or more tenants, or by the owner and one or more tenants, or any public library or educational institution, or schools of special instruction, or nursery schools, or day care centers or children's camps: PROVIDED, That nothing contained in this definition shall be construed to include or apply to any institute, bona fide club, or place of accommodation, which is by its nature distinctly private, including fraternal organizations, though where public use is permitted that use shall be covered by this chapter; nor shall anything contained in this definition apply to any educational facility, columbarium, crematory, mausoleum, or cemetery operated or maintained by a bona fide religious or sectarian institution;

"Real property" includes buildings, structures, real estate, lands, tenements, leaseholds, interests in real estate cooperatives, condominiums, and hereditaments, corporeal and incorporeal, or any interest therein;

"Real estate transaction" includes the sale, exchange, purchase, rental, or lease of real property;

"Reproductive status" means the capacity or desire to reproduce;

"Sex" means gender((.)); and

"Credit transaction" includes any open or closed end credit transaction, whether in the nature of a loan, retail installment transaction, credit card issue or charge, or otherwise, and whether for personal or for business purposes, in which a service, finance, or interest charge is imposed, or which provides for repayment in scheduled payments, when such credit is extended in the regular course of any trade or commerce, including but not limited to transactions by banks, savings and loan associations or other financial lending institutions of whatever nature, stock brokers, or by a merchant or mercantile establishment which as part of its ordinary business permits or provides that payment for purchases of property or service therefrom may be deferred.

Sec. 5. RCW 49.60.180 and 1985 c 185 s 16 are each amended to read as follows:

It is an unfair practice for any employer:

(1) To refuse to hire any person because of age, sex, reproductive status, marital status, race, creed, color, national origin, or the presence of any sensory, mental, or physical handicap, unless based upon a bona fide occupational qualification((~~: PROVIDED,~~)). That the prohibition against discrimination because of such handicap shall not apply if the particular disability prevents the proper performance of the particular worker involved.

(2) To discharge or bar any person from employment because of age, sex, reproductive status, marital status, race, creed, color, national origin, or the presence of any sensory, mental, or physical handicap.

(3) To discriminate against any person in compensation or in other terms or conditions of employment because of age, sex, reproductive status, marital status, race, creed, color, national origin, or the presence of any sensory, mental, or physical handicap((~~: PROVIDED, That~~)). It shall not be an unfair practice for an employer to segregate washrooms or locker facilities on the basis of sex, or to base other terms and conditions of employment on the sex of employees where the commission by ((~~regulation or~~)) ruling in a particular instance has found the employment practice to be appropriate for the practical realization of equality of opportunity between the sexes.

(4) To print, or circulate, or cause to be printed or circulated any statement, advertisement, or publication, or to use any form of application for employment, or to make any inquiry in connection with prospective employment, which expresses any limitation, specification, or discrimination as to age, sex, reproductive status, marital status, race, creed, color, national origin, or the presence of any sensory, mental, or physical handicap, or any intent to make any such limitation, specification, or discrimination, unless based upon a bona fide occupational qualification((~~: PROVIDED,~~)). Nothing contained herein shall prohibit advertising in a foreign language.

Sec. 6. RCW 49.60.190 and 1985 c 185 s 17 are each amended to read as follows:

It is an unfair practice for any labor union or labor organization:

(1) To deny membership and full membership rights and privileges to any person because of age, sex, marital status, race, creed, color, national origin, or the presence of any sensory, mental, or physical handicap.

(2) To expel from membership any person because of age, sex, reproductive status, marital status, race, creed, color, national origin, or the presence of any sensory, mental, or physical handicap.

(3) To discriminate against any member, employer, employee, or other person to whom a duty of representation is owed because of age, sex, reproductive status, marital status, race, creed, color, national origin, or the presence of any sensory, mental, or physical handicap.

Sec. 7. RCW 49.60.200 and 1973 1st ex.s. c 214 s 9 are each amended to read as follows:

It is an unfair practice for any employment agency to fail or refuse to classify properly or refer for employment, or otherwise to discriminate against, an individual because of age, sex, reproductive status, marital status, race, creed, color, national origin, or the presence of any sensory, mental, or physical handicap, or to print or circulate, or cause to be printed or circulated any statement, advertisement, or publication, or to use any form of application for employment, or to make any inquiry in connection with prospective employment, which expresses any limitation, specification or discrimination as to age, sex, reproductive status, marital status, race, creed, color, or national origin, or the presence of any sensory, mental, or physical handicap, or any intent to make any such limitation, specification, or discrimination, unless based upon a bona fide occupational qualification((~~: PROVIDED,~~)). Nothing contained herein shall prohibit advertising in a foreign language.

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

(1) It is unlawful for an employer to refuse to transfer a pregnant employee to another position if the transfer: (a) Is requested by the employee; (b) is reasonably necessary to avoid exposure to any substance which could cause an adverse pregnancy outcome; and (c) can be reasonably accommodated by the employer. The transfer shall be for the duration of the pregnancy and without loss of pay, seniority, or any other employment-related benefits. The employer may request a medical opinion to verify that the transfer is reasonably necessary.

(2) When an employer requests a medical opinion, the employee shall provide a written opinion from the employee's treating physician that the transfer is reasonably necessary to avoid exposure to a substance which could cause an adverse pregnancy outcome. The employer may reject the medical opinion from the treating physician, but shall offer the employee the opportunity to immediately obtain an independent opinion from another physician at the employer's cost. The employer and employee shall jointly select the physician. If the employer and the employee cannot agree, the director shall select the physician. The independent opinion shall be determinative as to whether the transfer is reasonably necessary.

(3) A notice of the provisions of this section shall be provided by the department with other notices to be posted in every establishment in which employees are employed.

(4) If the director finds that an employer has violated this section, the employer shall be assessed a civil penalty of not more than one thousand dollars. The employer shall pay the amount assessed within thirty days of receipt of the assessment or notify the director of his or her intent to appeal the assessment under subsection (5) of this section.

(5) An employer may appeal a finding and assessment made under subsection (4) of this section to the director by filing notice of the appeal with the director within the thirty-day period immediately following the finding and assessment. Upon receipt of an appeal, a hearing shall be held under chapter 34.05 RCW. The director shall issue a final order after the hearing. A final order is subject to appeal under chapter 34.05 RCW. An order not appealed within the time period specified in chapter 34.05 RCW is final and binding.

Sec. 9. RCW 70.58.320 and 1991 c 3 s 345 are each amended to read as follows:

Whenever the attending physician discovers that a person has a reproductive disorder or has experienced a miscarriage or stillbirth or newborn child has a sentinel defect, and whenever a physician discovers upon treating a child under the age of fourteen ((~~years~~)) that ((~~such~~)) the child has a partial or complete disability or a condition which may lead to partial or complete disability, ((~~such fact~~)) the physician shall ((~~be reported~~)) report to the local registrar and ((~~to the~~)), in the case of a child, parents((,)) or legal guardians of the child((~~, upon~~)) on a form ((~~to be~~)) provided by the secretary of health. No report ((~~shall be~~)) is required if the disabling condition has been previously reported or the condition is not ((~~one~~)) required to be reported by the secretary. Sentinel defects shall be reported at the same time as birth certificates are required to be filed. Each physician shall ((~~make a~~)) report ((~~as to~~)) disabling conditions within thirty days after discovery ((~~thereof~~)). If a child with sentinel birth defects is born outside ((~~the~~)) a hospital, the person filling out the birth certificate shall ((~~make a~~)) report to the department.

The form((~~s to be~~)) provided by the secretary ((~~for this purpose~~)) under this section shall require ((~~such~~)) information ((as)) the secretary deems necessary to carry out the purposes of RCW 70.58.300 through 70.58.350, including specific information about the places where the person, or, in the case of a child, parents have been employed and their physical and chemical exposures at those places.

Sec. 10. RCW 70.58.322 and 1984 c 156 s 2 are each amended to read as follows:

Sentinel birth defect ((~~shall~~)) means a birth defect ((~~whose~~)) the occurrence of which signals the possible presence of workplace hazards, environmental hazards, genetic disease, poor quality health care, or some other factor determined by the users of the data to be present when a certain birth defect occurs.

Sentinel birth defects include, but are not limited to:

(1) Anencephaly;

(2) Spina bifida;

(3) Hydrocephaly;

(4) Cleft palate;

(5) Total cleft palate;

(6) Esophageal atresia and stenosis;

(7) Rectal and anal atresia;

(8) Hypospadias;

(9) Reduction and deformity of the upper limb;

(10) Reduction and deformity of the lower limb;

(11) Congenital dislocation of the hip; and

(12) Down's syndrome.

Sec. 11. RCW 70.58.324 and 1984 c 156 s 3 are each amended to read as follows:

(1) The department shall not disclose the identity of a person, business, or sentinel birth defect child from reports required under RCW 70.58.320 unless:

(a) There is a demonstrated public health need for the individual identity;

(b) The department obtains written consent of the person, business, parent, or guardian of the child; and

(c) The department assures that the identity of the person, business, or child shall not be released without the written consent of the person, business, parent, or guardian, as applicable.

(2) If there is a demonstrated need for the individual identity of children without sentinel birth defects to conduct a case-control investigation, subsection (1) (a), (b), and (c) of this section ((~~shall apply~~)) applies.

Sec. 12. RCW 70.58.330 and 1984 c 156 s 4 are each amended to read as follows:

Except compilations of statistical data furnished by the department, the information furnished in the reports required by RCW 70.58.320 ((~~shall be~~)) are secret and shall not be revealed except upon order of the superior court or by the process established by RCW 70.58.324. A person, business, parent, or legal guardian of a child who is the subject of a report required by RCW 70.58.320 shall have access to ((~~such~~)) the report ((~~or reports~~)).

Sec. 13. RCW 70.58.338 and 1984 c 156 s 7 are each amended to read as follows:

The department, in cooperation with the department of labor and industries, shall develop procedures to monitor the data on reproductive disorders, miscarriages, stillbirths, or sentinel birth defect trends which may be caused by workplace or environmental hazards.

Sec. 14. RCW 70.58.350 and 1959 c 177 s 6 are each amended to read as follows:

The state board of health ((~~is authorized to make such~~)) may adopt rules ((~~and regulations as are~~)) necessary to carry out the purposes of RCW 70.58.300 through 70.58.350.