S-1524.1

SUBSTITUTE SENATE BILL 5267

BySenate Labor & Commerce (originally sponsored by Senators Kuderer, Stanford, Conway, Frame, Hasegawa, Hunt, Keiser, Lovelett, Lovick, Nguyen, Nobles, Pedersen, Saldaña, Shewmake, Trudeau, Wellman, and C. Wilson)

AN ACT Relating to safeguarding the public safety by protecting railroad workers; adding a new chapter to Title 49 RCW; prescribing penalties; providing an effective date; and declaring an emergency.

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

The legislature further finds that railroad operating craft employees may report to work while ill to avoid disciplinary action by railroad carrier companies, which creates a dangerous and unnecessary public health and safety issues. In addition, the legislature finds that the unique operational practices utilized to summon railroad crew employees to duty necessitate modifications to existing family and medical leave laws to provide railroad carrier employees with comparable sick leave and family leave rights to those previously granted to all other workers in this state.

Therefore, in the interest of public safety and railroad worker safety, the legislature enacts this chapter to assure that railroad crew employees are healthy and to assure that railroad crew employees receive fair and equitable family and medical leave. The provisions of this chapter are enacted in the exercise of the police power of the state for the purpose of protecting the immediate and future health, safety, and welfare of the people of this state.

(1) "Child" means a biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis, who is: (a) Under eighteen years of age; or (b) eighteen years of age or older and incapable of self-care because of a mental or physical disability.

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

(3) "Director" means the director of the department of labor and industries, or the director's authorized representative.

(4) "Employee" means a person who has been employed by a railroad carrier.

(5) "Employer" means any person, firm, corporation, partnership, business trust, legal representative, or other business entity, including any unit of local government including, but not limited to, a county, city, town, municipal corporation, quasi-municipal corporation, or political subdivision, which engages in business as a railroad carrier.

(6) "Employment benefits" means all benefits provided or made available to employees by an employer, including group life insurance, health insurance, disability insurance, sick leave, annual leave, educational benefits, and pensions except benefits that are provided by a practice or written policy of an employer or through an employee benefit plan as defined in 29 U.S.C. Sec. 1002(3).

(7) "Family member" means any of the following:

(a) A child, including a biological, adopted, or foster child, stepchild, or a child to whom the employee stands in loco parentis, is a legal guardian, or is a de facto parent, regardless of age or dependency status;

(b) A biological, adoptive, de facto, or foster parent, stepparent, or legal guardian of an employee or the employee's spouse or registered domestic partner, or a person who stood in loco parentis when the employee was a minor child;

(c) A spouse;

(d) A registered domestic partner;

(e) A grandparent;

(f) A grandchild; or

(g) A sibling.

(8) "Health care provider" means: (a) A person licensed as a physician under chapter 18.71 RCW or an osteopathic physician and surgeon under chapter 18.57 RCW; (b) a person licensed as an advanced registered nurse practitioner under chapter 18.79 RCW; or (c) any other person determined by the director to be capable of providing health care services.

(9) "Intermittent leave" is leave taken in separate blocks of time due to a single qualifying reason.

(10) "Leave for a family member's serious health condition" means leave as described in section 4(1)(c) of this act.

(11) "Leave for the birth or placement of a child" means leave as described in section 4(1) (a) or (b) of this act.

(12) "Leave for the employee's serious health condition" means leave as described in section 4(1)(d) of this act.

(13) "Operating craft employee" means any employee of a railroad carrier who performs service in an operating craft on a railroad or directs the work of an operating craft employee as a scheduled employee, and includes any other employee of a railroad carrier who performs safety sensitive tasks associated with railroad operations.

(14) "Parent" means a biological, adoptive, de facto, or foster parent, stepparent, or legal guardian of an employee or the employee's spouse or registered domestic partner, or a person who stood in loco parentis when the employee was a minor child.

(15) "Period of incapacity" means an inability to work, attend school, or perform other regular daily activities because of the serious health condition, treatment of that condition or recovery from it, or subsequent treatment in connection with such inpatient care.

(16) "Railroad carrier" means any employer subject to the jurisdiction of the surface transportation board under 49 U.S.C. Sec. 1301 through 1326, as it exists on the effective date of this section. "Railroad carrier" includes the officers and agents of the railroad operations regardless of physical location.

(17) "Reduced leave schedule" means a leave schedule that reduces the usual number of hours per workweek, or hours per workday, of an employee.

(18) "Serious health condition" has the same meaning as in RCW 50A.05.010.

(19) "Spouse" means a husband or wife, as the case may be, or state registered domestic partner.

(a) Because of the birth of a child of the employee and in order to care for the child;

(b) Because of the placement of a child with the employee for adoption or foster care;

(c) In order to care for a family member of the employee, if the family member has a serious health condition; or

(d) Because of a serious health condition that makes the employee unable to perform the functions of the position of the employee.

(2) The entitlement to leave for the birth or placement of a child expires at the end of the 12-month period beginning on the date of such birth or placement.

(3) In determining the duration of leave time remaining in 52 consecutive calendar weeks, a railroad carrier may deduct only the actual amount of leave taken by an employee in increments no greater than 24 hours, and may not deduct more than one calendar day for each 24-hour period the employee specifically applied for leave.

(4) An employee is not entitled to leave under this section unless:

(a)(i) The employee worked for at least six months for the employer with respect to whom leave is requested under this section; and

(ii) The employee worked for at least 504 hours of service with the employer during the previous 12-month period; or

(b)(i) The employee has been assigned to and worked on a guaranteed extra call board for at least the 12 months immediately preceding the date on which leave will commence and has worked or been paid for:

(A) Not less than 60 percent of the applicable total monthly guarantee, or the equivalent, during the 12-month period; and

(B) Not less than 504 hours, not counting personal commute time or time spent on vacation leave, sick leave, personal leave, leave of absence, or medical leave, during the 12-month period, for or by that employer; or

(ii) The employee has not been assigned to and worked on a guaranteed extra call board for at least 12 consecutive months preceding, but the employee has worked not less than 504 hours, not counting personal commute time or time spent on vacation leave, sick leave, personal leave, or medical leave, during the preceding twelve months of time that the employee was actively working for or by that employer.

(a) The employee has completed three consecutive months of continuous employment by the railroad carrier prior to the absence;

(b) No consecutive period of authorized absence pursuant to the provisions of this section exceeds 15 days;

(c) The total number of authorized absences the employee has taken pursuant to the provisions of this section, including any paid leave allowed under applicable federal law, is less than 91 days in the current calendar year; and

(d) The absence is authorized pursuant to subsection (2) of this section.

(2) An employee's absence under this section is authorized due to any of the following reasons:

(a) An absence resulting from an employee's mental or physical illness, injury, or health condition; to accommodate the employee's need for medical diagnosis, care, or treatment of a mental or physical illness, injury, or health condition; or an employee's need for preventive medical care;

(b) To allow the employee to provide care for a family member with a mental or physical illness, injury, or health condition; care of a family member who needs medical diagnosis, care, or treatment of a mental or physical illness, injury, or health condition; or care for a family member who needs preventive medical care; and

(c) When the employee or their spouse or registered domestic partner's place of business has been closed by order of a public official for any health-related reason, or when an employee's child's school or place of care has been closed for such a reason.

(3) An employer may permit employees to use any accrued leave, including vacation time or personal leave, while absent pursuant to the provisions of this section. An employer may not require an employee to use paid leave while absent pursuant to the provisions of this section.

(4) For employee absences under this section exceeding five consecutive days, the employer may, within 10 days of the employee's return to work, request verification that the employee's unpaid absence was for an authorized purpose pursuant to this section.

(a) If verification is requested by an employer, the employer must provide the employee no fewer than 30 days to obtain and provide any requested verification. An employer's requirements for verification may not result in an unreasonable burden or expense on the employee and may not exceed privacy or verification requirements otherwise established by law.

(b) If an employer requires an employee to provide verification from a health care provider identifying the need for use of their unpaid leave for an authorized purpose pursuant to this section, the employer must not require that the information provided explain the nature of the condition. If the employer obtains any health information about an employee or an employee's family member, the employer must treat such information in a confidential manner consistent with applicable privacy laws.

(5) Any employee absences pursuant to this section are not subject to any type of carrier availability or attendance policy and are separate from any protected leave under Title 50A RCW and sections 4 and 6 through 10 of this act.

(6) No railroad carrier may dismiss, suspend, lay off, demote, engage in any adverse action against or otherwise discipline an employee because of absences authorized pursuant to the provisions of this section.

(2) Employee absences for bereavement purposes under this section may be unpaid.

(3) In addition to any paid bereavement leave offered by an employer, an employer may approve an employee's request to use any accrued vacation or personal leave time for bereavement purposes.

(4) Absences for bereavement purposes are not required to be taken over consecutive calendar days and may be split up over time. However, only seven days of unpaid protected leave for bereavement leave is authorized per decedent pursuant to this section.

(a) Employees may absent themselves for fewer than seven days if they so choose.

(b) Employers may provide additional compensated or unpaid time off to their employees for bereavement purposes.

(5) For absences related to bereavement purposes under this section, employers may require verification for the death of the family member or relative.

(b) Leave may be taken intermittently or on a reduced leave schedule when medically necessary for treatment of a serious health condition by or under the supervision of a health care provider, or for recovery from treatment or recovery from a serious health condition. It may also be taken to provide care or psychological comfort for an immediate family member with a serious health condition.

(i) Intermittent leave may be taken for a serious health condition that requires treatment by a health care provider periodically, rather than for one continuous period of time, and may include leave of periods from an hour or more to several weeks.

(ii) Intermittent or reduced schedule leave may be taken for absences where the employee or family member is incapacitated or unable to perform the essential functions of the position because of a chronic serious health condition even if he or she is not receiving current or ongoing treatment by a health care provider.

(c) There is no limit on the size of an increment of leave when an employee takes intermittent leave or leave on a reduced leave schedule. However, an employer may limit leave increments to the shortest period of time that the employer's payroll system uses to account for absences or use of leave.

(d) The taking of leave intermittently or on a reduced leave schedule under this section may not result in a reduction in the total amount of leave to which the employee is entitled under section 8 of this act beyond the amount of leave actually taken.

(2) If an employee requests intermittent leave, or leave on a reduced leave schedule, for a family member's serious health condition or the employee's serious health condition when the condition is foreseeable based on planned medical treatment, the employer may require such employee to transfer temporarily to an available alternative position at the same geographical location for which the employee is qualified and that:

(a) Has equivalent pay and benefits; and

(b) Better accommodates recurring periods of leave than the regular employment position of the employee.

(2) Except as provided in subsection (3) of this section, this chapter does not affect an employee's entitlement to paid leave under Title 50A RCW.

(3) Unless otherwise expressly permitted by the employer, leave taken under section 4 of this act must be taken concurrently with any paid leave taken under Title 50A RCW or any leave taken under the federal family and medical leave act of 1993 (Act Feb. 5, 1993, P.L. 103-3, 107 Stat. 6, as it existed on October 19, 2017).

(2) If the necessity for leave for a family member's serious health condition or the employee's serious health condition is foreseeable based on planned medical treatment, the employee:

(a) Must make a reasonable effort to schedule the treatment so as not to disrupt unduly the operations of the employer, subject to the approval of the health care provider of the employee or the health care provider of the family member, as appropriate; and

(b) Must provide the employer with not less than 30 days' notice, before the date the leave is to begin, of the employee's intention to take leave for a family member's serious health condition or the employee's serious health condition, except that if the date of the treatment requires leave to begin in less than 30 days, the employee must provide such notice as is practicable.

(2) Certification provided under subsection (1) of this section is sufficient if it states:

(a) The date on which the serious health condition commenced;

(b) The probable duration of the condition;

(c) The appropriate medical facts within the knowledge of the health care provider regarding the condition;

(d)(i) For purposes of leave for a family member's serious health condition, a statement that the employee is needed to care for the family member and an estimate of the amount of time that such employee is needed to care for the family member; and

(ii) For purposes of leave for the employee's serious health condition, a statement that the employee is unable to perform the functions of the position of the employee;

(e) In the case of certification for intermittent leave, or leave on a reduced leave schedule, for planned medical treatment, the dates on which the treatment is expected to be given and the duration of the treatment;

(f) In the case of certification for intermittent leave, or leave on a reduced leave schedule, for the employee's serious health condition, a statement of the medical necessity for the intermittent leave or leave on a reduced leave schedule, and the expected duration of the intermittent leave or reduced leave schedule; and

(g) In the case of certification for intermittent leave, or leave on a reduced leave schedule, for a family member's serious health condition, a statement that the employee's intermittent leave or leave on a reduced leave schedule is necessary for the care of the family member who has a serious health condition, or will assist in their recovery, and the expected duration and schedule of the intermittent leave or reduced leave schedule.

(3) If the employer has reason to doubt the validity of the certification provided under subsection (1) of this section for leave for a family member's serious health condition or the employee's serious health condition, the employer may require, at the expense of the employer, that the employee obtain the opinion of a second health care provider designated or approved by the employer concerning any information certified under subsection (2) of this section for the leave. The second health care provider may not be contracted by a vendor or service provider of, or employed on any prior basis by, the employer.

(4) If the second opinion described in subsection (3) of this section differs from the opinion in the original certification provided under subsection (1) of this section, the employer may require, at the expense of the employer, that the employee obtain the opinion of a third health care provider designated or approved jointly by the employer and the employee concerning the information certified under subsection (2) of this section. The opinion of the third health care provider concerning the information certified under subsection (2) of this section is considered to be final and is binding on the employer and the employee.

(5) The employer may require that the employee obtain subsequent recertifications on a reasonable basis.

(6) In adopting rules to implement this section, the department shall adopt rules applicable to railroad carriers that at least address the following matters:

(a) What constitutes complete and sufficient certification from a medical provider, such that no additional details may be requested;

(b) Limitations on employer requests for recertification, including defining what constitutes a reasonable basis after approval has previously been granted for that year.

(i) To be restored by the employer to the position of employment held by the employee when the leave commenced; or

(ii) To be restored to an equivalent position with equivalent employment benefits, pay, and other terms and conditions of employment at a workplace within 20 miles of the employee's workplace when leave commenced.

(b) The taking of leave under section 4 of this act may not result in the loss of any employment benefits accrued before the date on which the leave commenced.

(c) Nothing in this subsection (1) entitles any restored employee to:

(i) The accrual of any seniority or employment benefits during any period of leave; or

(ii) Any right, benefit, or position of employment other than any right, benefit, or position to which the employee would have been entitled had the employee not taken the leave.

(d) As a condition of restoration under (a) of this subsection for an employee who has taken leave for the employee's serious health condition, the employer may have a uniformly applied practice or policy that requires each such employee to receive certification from the health care provider of the employee that the employee is able to resume work, except that nothing in this subsection (1)(d) supersedes a valid local law or a collective bargaining agreement that governs the return to work of such employees.

(e) Nothing in this subsection (1) prohibits an employer from requiring an employee on leave to report periodically to the employer on the status and intention of the employee to return to work.

(2) An employer may deny restoration under subsection (1) of this section to any salaried employee who is among the highest paid 10 percent of the employees employed by the employer within 75 miles of the facility at which the employee is employed if:

(a) Denial is necessary to prevent substantial and grievous economic injury to the operations of the employer;

(b) The employer notifies the employee of its intent to deny restoration on such basis at the time the employer determines that the injury would occur; and

(c) The leave has commenced and the employee elects not to return to employment after receiving the notice.

(a) Interfere with, restrain, or deny the exercise of, or the attempt to exercise, any right provided under this chapter; or

(b) Discharge or in any other manner discriminate against any individual for opposing any practice made unlawful by this chapter.

(2) It is unlawful for any person to discharge or in any other manner discriminate against any individual because the individual has:

(a) Filed any complaint or charge, or has instituted or caused to be instituted any proceeding, under or related to this chapter;

(b) Given, or is about to give, any information in connection with any inquiry or proceeding relating to any right provided under this chapter; or

(c) Testified, or is about to testify, in any inquiry or proceeding relating to any right provided under this chapter.

(b) The department shall send the citation and notice of assessment or the closure letter to both the employer and the employee by service of process or using a method by which the mailing can be tracked or the delivery can be confirmed to their last known addresses.

(c) If the department's investigation finds that the employee's allegation cannot be substantiated, the department shall issue a closure letter to the employee and the employer detailing such finding. A closure finding does not diminish any right provided under section 19 of this act.

(2)(a) If the department's investigation finds that a railroad carrier violated this chapter or related rules, the department may order the employer to pay the department a civil penalty. Civil penalties may be assessed as follows:

(i) For a class I carrier, up to $5,000 for the first violation, up to $25,000 for the second violation within a three-year period following any previous violation, and up to $100,000 for the third or subsequent violation within a three-year period following any previous violation;

(ii) For a class II or III carrier, up to $1,000 for the first violation, up to $5,000 for the second violation within a three-year period following any previous violation, and up to $10,000 for the third or subsequent violation within a three-year period following any previous violation.

(b) The department may, at any time, waive or reduce any civil penalty assessed against an employer under this section if the department determines that the employer has taken corrective action to remedy the retaliatory action.

(3) The director may also order other remedies such as back pay and reinstatement, and may increase the fines by rule based on changing economic conditions.

(4) The department shall deposit civil penalties paid under this section in the supplemental pension fund established under RCW 51.44.033.

(2) A notice of appeal filed with the director under this section shall stay the effectiveness of the citation and notice of assessment pending final review of the appeal by the director as provided for in chapter 34.05 RCW.

(3) Upon receipt of a notice of appeal, the director shall assign the hearing to an administrative law judge of the office of administrative hearings to conduct the hearing and issue an initial order. The hearing and review procedures shall be conducted in accordance with chapter 34.05 RCW, and the standard of review by the administrative law judge of an appealed citation and notice of assessment shall be de novo. Any party who seeks to challenge an initial order shall file a petition for administrative review with the director within 30 days after service of the initial order. The director shall conduct an administrative review in accordance with chapter 34.05 RCW.

(4) The director shall issue all final orders after appeal of the initial order. The final order of the director is subject to judicial review in accordance with chapter 34.05 RCW.

(5) Orders that are not appealed within the time period specified in this section and chapter 34.05 RCW are final and binding, and not subject to further appeal.

(6) An employer who fails to allow adequate inspection of records in an investigation by the department under this chapter within a reasonable time period may not use such records in any appeal under this section to challenge the correctness of any determination by the department of the penalty assessed.

(2)(a) The director may issue to any person, firm, corporation, other entity, municipal corporation, political subdivision of the state, a public corporation, or any agency of the state, a notice and order to withhold and deliver property of any kind when they have reason to believe that there is in the possession of the person, firm, corporation, other entity, municipal corporation, political subdivision of the state, public corporation, or agency of the state, property that is or will become due, owing, or belonging to an employer upon whom a notice of assessment has been served by the department for payments or civil penalties due to the department. The effect of a notice and order is continuous from the date the notice and order is first made until the liability out of which the notice and order arose is satisfied or becomes unenforceable because of lapse of time. The department shall release the notice and order when the liability out of which the notice and order arose is satisfied or becomes unenforceable by reason of lapse of time and shall notify the person against whom the notice and order was made that the notice and order has been released.

(b) The notice and order to withhold and deliver must be served by the sheriff of the county or by the sheriff's deputy, by certified mail, return receipt requested, or by the director. A person, firm, corporation, other entity, municipal corporation, political subdivision of the state, public corporation, or agency of the state upon whom service has been made shall answer the notice within 20 days exclusive of the day of service, under oath and in writing, and shall make true answers to the matters inquired of in the notice and order. Upon service of the notice and order, if the party served possesses any property that may be subject to the claim of the department, the party shall promptly deliver the property to the director. The director shall hold the property in trust for application on the employer's indebtedness to the department, or for return without interest, in accordance with a final determination of a petition for review. In the alternative, the party shall furnish a good and sufficient surety bond satisfactory to the director conditioned upon final determination of liability. If a party served and named in the notice fails to answer the notice within the time prescribed in this section, the court may render judgment by default against the party for the full amount claimed by the director in the notice, together with costs. If a notice is served upon an employer and the property subject to the notice is wages, the employer may assert in the answer all exemptions provided for by chapter 6.27 RCW to which the wage earner is entitled.

(c) As an alternative to the methods of service described in this section, the department may electronically serve a financial institution with a notice and order to withhold and deliver by providing a list of its outstanding warrants, except those for which a payment agreement is in good standing, to the department of revenue. The department of revenue may include the warrants provided by the department in a notice and order to withhold and deliver served under RCW 82.32.235(3). A financial institution that is served with a notice and order to withhold and deliver under this subsection (2)(c) must answer the notice within the time period applicable to service under RCW 82.32.235(3). The department and the department of revenue may adopt rules to implement this subsection (2)(c).

(3) In addition to the procedure for collection of amounts owed, including interest, and civil penalties as set forth in this section, the department may recover amounts owed, including interest, and civil penalties assessed under this chapter, and any rules under this chapter, in a civil action brought in a court of competent jurisdiction of the county where the violation is alleged to have occurred.

(4) Whenever any employer quits business, sells out, exchanges, or otherwise disposes of the employer's business or stock of goods, any person who becomes a successor to the business becomes liable for the full amount of any outstanding citation and notice of assessment or penalty against the employer's business under this chapter if, at the time of the conveyance of the business, the successor has: (a) Actual knowledge of the fact and amount of the outstanding citation and notice of assessment; or (b) a prompt, reasonable, and effective means of accessing and verifying the fact and amount of the outstanding citation and notice of assessment from the department. If the citation and notice of assessment or penalty is not paid in full by the employer within 10 days of the date of the sale, exchange, or disposal, the successor is liable for the payment of the full amount of the citation and notice of assessment or penalty, and payment thereof by the successor must, to the extent thereof, be deemed a payment upon the purchase price. If the payment is greater in amount than the purchase price, the amount of the difference becomes a debt due to the successor from the employer.

(5) This section does not affect other collection remedies that are otherwise provided by law.

(a) For damages equal to:

(i) The amount of:

(A) Any wages, salary, employment benefits, or other compensation denied or lost to such employee by reason of the violation;

(B) In a case in which wages, salary, employment benefits, or other compensation have not been denied or lost to the employee, any actual monetary losses sustained by the employee as a direct result of the violation, such as the cost of providing care, up to a sum equal to 12 weeks of wages or salary for the employee;

(ii) The interest on the amount described in (a)(i) of this subsection calculated at the prevailing rate of inflation plus 10 percent; and

(iii) An additional amount as liquidated damages equal to the sum of the amount described in (a)(i) of this subsection and the interest described in (a)(ii) of this subsection, except that if an employer who has violated section 14 of this act proves to the satisfaction of the court that the act or omission that violated section 14 of this act was in good faith and that the employer had reasonable grounds for believing that the act or omission was not a violation of section 14 of this act, the court may, in the discretion of the court, reduce the amount of the liability to the amount and interest determined under (a)(i) and (ii) of this subsection, respectively; and

(b) For such equitable relief as may be appropriate, including employment, reinstatement, and promotion.

(2) For a violation of section 14(2) of this act by any carrier because the employee complained, opposed, gave information or was about to give information, or testified or was about to testify, regarding a railroad safety matter, the additional amount as liquidated damages shall be up to $5,000,000.

(3) An action to recover the damages or equitable relief prescribed in subsection (1) of this section may be maintained against any employer in any court of competent jurisdiction by any one or more employees for and on behalf of:

(a) The employees; or

(b) The employees and other employees similarly situated.

(4) The court in such an action shall, in addition to any judgment awarded to the plaintiff, allow reasonable attorneys' fees, reasonable expert witness fees, and an additional amount to compensate for any taxes owed on a lump sum damage award payment, and any other costs of the action to be paid by the defendant.

(1) To modify or affect any state or local law prohibiting discrimination on the basis of race, religion, color, national origin, sex, sexual orientation, gender identity, age, or disability; or

(2) To supersede any provision of any local law that provides greater family or medical leave rights than the rights established under this chapter.

--- END ---