HOUSE BILL REPORT
ESHB 1581
As Amended by the Senate
BYHouse Committee on Commerce & Labor (originally sponsored by Representatives Wang, Brough, Cole, Miller, Vekich, Anderson, R. King, Winsley, Hankins, Rector, Brekke, Appelwick, Jacobsen, Leonard, Dellwo, Nutley, Locke, Belcher, H. Sommers, R. Fisher, Wineberry, Sayan, Prentice, Valle, Crane, Nelson, Ebersole, Fraser, Phillips, Rust and Basich)
Providing for family and medical leave.
House Committe on Commerce & Labor
Majority Report: The substitute bill be substituted therefor and the substitute bill do pass. (7)
Signed by Representatives Vekich, Chair; Cole, Vice Chair; Jones, R. King, Leonard, O'Brien and Prentice.
Minority Report: Do not pass. (4)
Signed by Representatives Patrick, Ranking Republican Member; Smith, Walker and Wolfe.
House Staff:Joan Elgee (786-7166)
Rereferred House Committee on Appropriations
Majority Report: The substitute bill by Committee on Commerce & Labor be substituted therefor and the substitute bill as amended by Committee on Appropriations do pass. (16)
Signed by Representatives Locke, Chair; H. Sommers, Vice Chair; Appelwick, Belcher, Brekke, Brough, Ebersole, Hine, Peery, Rust, Sayan, Spanel, Sprenkle, Valle, Wang and Wineberry.
Minority Report: Do not pass. (11)
Signed by Representatives Grant, Vice Chair; Silver, Ranking Republican Member; Youngsman, Assistant Ranking Republican Member; Bowman, Braddock, Bristow, Doty, Ferguson, May, McLean and Nealey.
House Staff: Randy Acker (786-7136)
AS PASSED HOUSE MARCH 9, 1989 AND APRIL 24, 1989
BACKGROUND:
The growth in two wage-earner families, single parent families, and working women, among other factors, has prompted an examination of employer leave policies to better accommodate employees.
In 1987, the House of Representatives passed a family leave bill (E2SHB 565) which provided for 16 weeks of leave to care for a newborn or adoptive child, or family member with a serious health condition. The bill died in the Senate, and the legislature established a Select Committee on Employment and the Family to study family leave and related issues. The Select Committee recommended the "family care" bill (SHB 1319), which became law in 1988. The family care law requires all employers covered by industrial welfare to allow an employee to use accrued sick leave to care for the employee's child under 18 with a health condition that requires treatment or supervision.
Human Rights Commission rules address leave from employment in a limited way. All employers with eight or more employees must grant a woman a leave of absence for the period of pregnancy disability. Also, the Commission's rule requiring accommodation to handicapped workers may require an employer to grant leave to an employee with a health condition under certain circumstances.
SUMMARY:
COVERAGE
A new chapter providing for unpaid family and medical leave for employees is adopted. The act applies to 1) all private employers and local government employers, employing 35 or more persons (50 or more persons until October 1, 1991) within a 20 mile radius of the employee's workplace and 2) the state. Employees covered are those who work at least 18 hours per week and have completed at least one year of employment. Employees holding temporary or seasonal jobs are excluded.
An employer may limit or deny family and medical leave to an employee who receives within the top 10 percent of compensation of the employer's employees within the state.
FAMILY LEAVE
An employee is entitled to 13 weeks of family leave during any 24 month period for the following reasons:
oTo care for a newborn child or adopted child under the age of 16. The leave must be completed within 12 months of the birth or adoption placement.
oTo care for any of the following family members who has a serious health condition: The employee's child; the employee's spouse; a parent of the employee or employee's spouse who is dependent for care on the employee; or any other relative dependent for care on the employee who relies on the employee or employee's spouse for at least 25 percent of his or her financial support.
A employee may take leave to care for a family member with a serious health condition only when the family member requires the care of another person and the employee is an appropriate person to provide the care, as determined by a health care provider.
MEDICAL LEAVE
An employee is entitled to 13 weeks of medical leave during any 12 month period when the employee is unable to perform the functions of the employee's position because of a serious health condition.
JOB PROTECTION AND BENEFITS PROVISIONS
Subject to a bona fide reduction-in-force, or workplace shutdown or transfer, an employee returning from leave is entitled to the same position or a position with equivalent terms and conditions.
If an employer provided medical, dental, or disability benefits prior to leave, the employee is entitled to elect to continue coverage by self-pay. The premium shall not exceed 102 percent of the employer paid premium.
OTHER PROVISIONS
Notice. An employee planning to take family leave for the birth or adoption of a child must provide the employer with at least 30 days' written notice of the expected delivery or adoption placement, except that if the adoption placement is at an unexpected time and the employee is unable to give 30 days' notice, the employee shall notify the employer within 24 hours. If family or medical leave because of a serious health condition is foreseeable, the employee shall give the employer 14 days' written notice of the expected leave. If leave is not foreseeable within 14 days, the employee shall notify the employer within 24 hours of knowing when the leave is to take place. An employee taking leave because of a serious health condition shall make a reasonable effort to schedule the leave so as not to disrupt unduly the employer's operations.
Use of paid leave. An employer may require an employee to first use the employee's paid leave to which the employee is otherwise entitled. However, the total leave required is 13 work weeks.
Reduced leave schedule. Leave may be taken on a reduced leave schedule where the employee works fewer than the usual number of hours per week or day.
Confirmation of serious health conditions. A serious health condition is an illness, injury, impairment, or physical or mental condition which requires inpatient care in a medical facility or continuing treatment or continuing supervision by a health care provider.
An employer may require a health care provider's confirmation of the date the serious health condition commenced or was discovered, the probable duration of the condition, and that the individual requires the care of another person and the employee is an appropriate person to provide the care. An employer may require a second opinion at the employer's expense. If the health care providers disagree, the two providers shall select a third provider, whose opinion (obtained at employer's expense) shall be conclusive.
Combined limit. An employer may limit combined family and medical leave to 13 weeks during any 12 month period.
Enforcement. The Department of Labor and Industries shall administer the provisions of the chapter and adopt rules. A violation of the chapter constitutes an unfair practice. The department shall investigate complaints and if it determines that there is reasonable cause to believe that an unfair practice has occurred, the department shall attempt to eliminate the unfair practice by agreement. The department may order the employer, among other things, to reinstate the employee. Alternatively, the department may impose a penalty of up to $1,000 for each violation.
An aggrieved employee also has a private cause of action.
EFFECT OF SENATE AMENDMENTS:
COVERAGE
Coverage of private and local government employers is limited to those employing a daily average of 100 or more employees 1) at the place where the employee reports for work, or 2) within a 20 mile radius of the place where the employee reports for work, where the employer maintains a central hiring location and customarily transfers employees among workplaces. Employee coverage is modified to raise the number of hours a person must work to be covered from 18 to 35 hours per week.
As an alternative to exempting employees within the top 10 percent of compensation, an employer may limit or deny leave to up to 10 percent of the workforce designated as key personnel. Limitations are placed on the designation.
FAMILY LEAVE
The length of leave is lowered from 13 to 12 weeks. Leave to care for adopted children is limited to children under six. Leave to care for family members is limited to children with terminal health conditions. "Terminal health condition" is defined as 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.
MEDICAL LEAVE
The medical leave provisions are deleted.
JOB PROTECTION AND BENEFITS PROVISIONS
An employer's obligation to reinstate an employee on leave is modified. An employee is entitled to the same position or a position with equivalent benefits and pay at a workplace within 20 miles, or if the employer's circumstances have changed, to any other position which is vacant and for which the employee is qualified. In addition to reductions in force and workplace shutdown and transfer as grounds to deny reinstatement, the entitlement does not apply if the employee's position is eliminated by a bona fide restructuring, or the employee takes another job, fails to provide timely notice of leave, or fails to return on the established ending date of leave.
The employee's right to elect to continue disability coverage by self-pay is eliminated.
OTHER PROVISIONS
Notice. An employee taking leave for the birth or adoption of a child is required to state the dates of leave. The employee must adhere to the dates unless the birth is premature, the mother is incapacitated due to birth such that she is unable to care for the child, the adoption placement is unanticipated, or the employer and employee agree to alter the dates of leave. For leave to care for a child with a terminal health condition, the employee must give 14 days' notice of leave, except that if the leave is not foreseeable, the employee must notify the employer as soon as possible but at least within one working day. If the employee fails to give the required notice, the leave may be reduced or increased by three weeks.
Reduced leave schedule. The employer must approve taking leave on a reduced leave schedule.
Enforcement. The enforcement authority is limited to fines or reinstatement. The right of private action is expressly denied. Administrative provisions are placed in statute.
Poster. A provision is added requiring the department of Labor & Industries to develop and furnish to each employer a poster which describes the law.
Federal act. A provision is added directing the department to cease to enforce the act upon the effective date of any federal act which is substantially similar.
Appropriation. The appropriation is deleted.
LEAVE FOR ADOPTIVE AND OTHER PARENTS
Provisions are added requiring employers to grant adoptive parents, at initial placement for adoption of a child under the age of six, and step-parents, at the time of birth, the same leave as the employer grants to biological parents. An employer must also grant the same leave to men and women. The provisions apply to all employees covered by industrial welfare.
The department shall administer the provisions and may impose monetary penalties of up to $200 for each violation and up to $1000 for repeated violations.
Fiscal Note: Requested February 17, 1989.
Effective Date:The bill takes effect September 1, 1989. The chapter applies to collective bargaining agreements entered into or renewed after the effective date.
House Committee ‑ Testified For: (Commerce & Labor) Representative Shirley Rector, Sponsor; Rica Rasmussen, citizen; Sarah Kaligian, citizen; Penny Germain, citizen; Evelyn Amyes, Older Women's League; Cindy Zehnder, Joint Council of Teamsters; Amy Stephson, Northwest Women's Law Center; Pat Thibaudeau, Washington Women United; Patty Joynes, Washington State Nurses Association; Karen Keiser, Washington State Labor Council; Dick Warbrouck, Seattle Firefighters; Thelma Soltman, American Association of University Women; Lonnie Johns-Brown, Washington State National Organization of Women; and Sam Kinville, County and City Employees.
(Appropriations) Pat Thibaudeau, Washington Women United.
House Committee - Testified Against: (Commerce & Labor) Kathleen Collins, Association of Washington Cities; Bob Seeber, Washington Restaurant Association; Clif Finch, Association of Washington Business; Pam Hoyum, McLane Northwest; and Bob Hass, Atrium Food Services Inc.
(Appropriations) None Presented.
House Committee - Testimony For: (Commerce & Labor) Providing family and medical leave will give substance to claims that the state should support the family. Demographics are changing yet business is not responding. Only about 40 to 52 percent of employers provide parental leave and fewer still offer paternity leave and leave for adoption. The costs have been overstated. Most leaves can be covered by reassignment and where a temporary is hired the cost is the same or less. The bill will also help employees who must care for elderly family members.
(Appropriations) The costs have been overstated. Granting family leave can be a real savings for a business since it avoids the problem of training a new employee.
House Committee - Testimony Against: (Commerce & Labor) Family and medical leave is a boilerplate mandate will which result in higher unemployment insurance premiums, and decreased productivity, which will ultimately result in lower wages and higher consumer costs. Employers are already meeting the needs of their employees. Hiring temporary employees is costly, and for some jobs, no temporary employees are available. The bill is unfair to women and unfair to co-workers. The family care law still has not been straightened out and Oregon has had tremendous problems implementing their family leave law.
(Appropriations) None Presented.
VOTE ON FINAL PASSAGE:
Yeas 50; Nays 31; Absent 1; Excused 16 - April 24, 1989
Voting Nay: Representatives Ballard, Betrozoff, Bowman, Brooks, Brumsickle, Doty, Ferguson, Fuhrman, Hargrove, Holland, Horn, May, McLean, Morris, H. Myers, Nealey, Padden, Patrick, Prince, Rayburn, Schoon, Silver, Smith, D. Sommers, Tate, Van Luven, Walker, S. Wilson, Wolfe, Wood and Youngsman
Absent: Representative Wineberry
Excused: Representatives Basich, Baugher, Beck, Braddock, Chandler, Gallagher, Haugen, Inslee, Locke, Miller, Moyer, Raiter, Schmidt, Sprenkle, Walk and Zellinsky
VOTE ON FINAL PASSAGE:
Yeas 50; Nays 31; Absent 1; Excused 16 - (ESHB 1581) April 24, 1989
Voting Nay: Representatives Ballard, Betrozoff, Bowman, Brooks, Brumsickle, Doty, Ferguson, Fuhrman, Hargrove, Holland, Horn, May, McLean, Morris, H. Myers, Nealey, Padden, Patrick, Prince, Rayburn, Schoon, Silver, Smith, D. Sommers, Tate, Van Luven, Walker, S. Wilson, Wolfe, Wood and Youngsman
Absent: Representative Wineberry
Excused: Representatives Basich, Baugher, Beck, Braddock, Chandler, Gallagher, Haugen, Inslee, Locke, Miller, Moyer, Raiter, Schmidt, Sprenkle, Walk and Zellinsky