HOUSE BILL REPORT
HB 1581
BYRepresentatives 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 REPORTED BY COMMITTEE ON APPROPRIATIONS MARCH 3, 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:
SUBSTITUTE BILL:
COVERAGE
A new chapter providing for unpaid family and medical leave for employees is adopted. The act applies to 1) all private 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 and local governments. Employees covered are those who work at least 18 hours per week and have completed either a formal probationary period of not less than three months or six months of employment, whichever is less. 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.
An employer shall maintain the employer's contribution for medical, dental, and disability benefits during any period of leave. Employers are given the right to require an employee taking leave to care for a newborn or newly adopted child to place in escrow with the employer the amount of the employer's contribution for medical, dental, and disability benefits for the expected leave period. The amount in escrow shall be returned to the employee within 30 days of returning from leave, except that if the employee ends the employment during leave or within 30 days of returning, the employer may retain any contribution paid for benefits.
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. If an agreement cannot be reached, the department shall hold an administrative hearing. The department may order the employer, among other things, to reinstate the employee. A person who violates an order or willfully interferes with the department may be assessed a civil penalty up to $1,000 for each violation.
An aggrieved employee also has a private cause of action.
SUBSTITUTE BILL COMPARED TO ORIGINAL:
Coverage. The number of hours which a part-time employee must work to be covered is raised from 15 to 18 hours. A definition of temporary job is added. An employer is given the option to limit or deny leave to an employee who receives compensation within the top 10 percent of compensation of the employer's employees within the state. The state and all units of local government are covered regardless of the number of employees. The 35 or more person threshold for private employer coverage (50 until 1991) is modified to require that the persons be employed within a 20 mile radius of the employee's workplace.
Leave provisions. Family leave for newly adopted children is limited to children under 16. The provision allowing leave to care for "other relatives" with serious health conditions is changed to require that the relative must be dependent for care on the employee and rely on the employee or the employee's spouse for at least 25 percent of his or her financial support. Language is added clarifying that medical leave shall not be construed to limit any leave required as a reasonable accommodation to a handicap of the employee.
Job protection and benefits provisions. A provision is added that the entitlement to the same or equivalent position upon return from leave does not apply if the employer is unable to reinstate the employee due to shutdown or transfer of the employee's workplace.
Employers are given the right to require an employee taking leave to care for a newborn or newly adopted child to place in escrow with the employer the amount of the employer's contribution for medical, dental, and disability benefits for the expected leave period.
Other provisions. Notification provisions are modified. Health care providers who may confirm serious health conditions are limited to those licensed or certified by the state, and physicians' assistants. A section is added giving an aggrieved employee a private right of action. The criminal penalty for resisting the department or violating a department order is deleted and a civil penalty of not more than $1,000 added.
CHANGES PROPOSED BY COMMITTEE ON APPROPRIATIONS: A civil penalty not to exceed $1,000 dollars is authorized in lieu of seeking an injunction and damages following an administrative hearing. An appropriation is added.
Appropriation: $300,000 to the Department of Labor and Industries.
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.