AN ACT Relating to family and medical leave; adding a new chapter to Title 49 RCW; prescribing penalties; making an appropriation; and providing an effective date.

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

NEW SECTION. Sec. 1. The legislature finds that the demands of the workplace and the needs 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. Further, inadequate job security exists for some employees who experience serious health conditions which prevent them from working for temporary periods. 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. The legislature declares it to be in the public interest to provide reasonable family leave upon the birth or adoption of a child or to care for a family member with a serious health condition and to provide reasonable temporary medical leave for an employee with a serious health condition.

NEW SECTION. Sec. 2. Unless the context clearly requires otherwise, the definitions in this section apply throughout this chapter.

(1) "Child" means a biological, adopted, or foster child, a stepchild, or a legal ward, who is:

(a) Under eighteen years of age; or

(b) Eighteen years of age or older and incapable of self-care because of mental or physical disability.

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

(3) "Employee" means a person engaged by an employer:

(a) To work an average of at least eighteen hours per week;

(b) In a job that is not considered temporary or seasonal; and

For purposes of this subsection, a job is temporary if the term of employment is less than nine months and the original term has not extended beyond nine months.

(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, that employed thirty-five or more persons in this state within a twenty-mile radius of the employee's workplace during any calendar quarter of the previous twelve months: PROVIDED, That until October 1, 1991, "employer" is limited to 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, that employed fifty or more persons in this state within a twenty-mile radius of the employee's workplace during any calendar quarter of the previous twelve months;

(b) The state; and

(c) Any unit of local government including, but not limited to, a county, city, town, municipal corporation, quasi-municipal corporation, or political subdivision, that employed thirty-five or more persons in this state within a twenty-mile radius of the employee's workplace during any calendar quarter of the previous twelve months: PROVIDED, That until October , 1991, "employer" is limited to any unit of local government including, but not limited to, a county, city, town, municipal corporation, quasi-municipal corporation, or political subdivision, that employed fifty or more persons in this state within a twenty-mile radius of the employee's workplace during any calendar quarter of the previous twelve months.

(5) "Family leave" means leave from employment to care for a newborn or newly adopted child, or a family member with a serious health condition, as provided in section 3 of this act.

(6) "Health care provider" means a person licensed as a physician under chapter 18.71 RCW, an advanced registered nurse practitioner under rules adopted by the board of nursing under chapter 18.88 RCW, or an osteopath under chapter 18.57 RCW; a person authorized to practice as a physician's assistant under chapter 18.71A RCW; or any other persons licensed or certified to provide health care services and capable of making the determinations required by this chapter, as determined by the department.

(7) "Medical leave" means leave from employment because of an employee's serious health condition, as provided in section 4 of this act.

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

(9) "Person" includes one or more individuals, partnerships, associations, organizations, corporations, cooperatives, legal representatives, trustees and receivers, or any group of persons; 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.

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

(11) "Serious health condition" means an illness, injury, impairment, or physical or mental condition, whether or not preexisting, which 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.

NEW SECTION. Sec. 3. (1) Except as provided in subsection (4) of this section, an employee is entitled to thirteen workweeks of family leave during any twenty-four month period under the circumstances in (a) and (b) of this subsection. The leave required by this section is in addition to any leave because of disability as a result of sickness or temporary disability because of pregnancy or childbirth.

(a) An employee may take leave to care for a newborn child of the employee or an adopted child of the employee who is under the age of sixteen at the time of placement for adoption. Leave under this subsection shall be completed within twelve months after the birth or placement for adoption, as applicable.

(b) An employee may take leave to care for any of the following individuals who has a serious health condition:

(i) A child of the employee;

(ii) The spouse of the employee;

(iii) A parent of the employee or the employee's spouse who is dependent for care on the employee; or

(iv) Any other relative of the employee who is dependent for care on the employee and relies on the employee or the employee's spouse for at least twenty-five percent of his or her financial support.

An employee may take leave under this subsection only when the individual requires the care of another person and the employee is an appropriate person to provide the care, as determined by a health care provider.

(2) Leave may be taken on a reduced leave schedule if:

(a) The total period during which the thirteen workweeks is taken does not exceed thirty-six consecutive workweeks; and

(b) The leave is scheduled so as not to disrupt unduly the operations of the employer.

(3) The leave required by this section may be unpaid. If an employer provides paid family leave for fewer than thirteen workweeks, the additional weeks of leave added to attain the thirteen workweek total may be unpaid. An employer may require an employee to first use up the employee's total accumulation of paid vacation leave, personal leave, family leave, or other comparable paid leave to which the employee is otherwise entitled before going on unpaid leave; however, nothing in this section requires more than thirteen total workweeks of leave.

(4) An employer may limit or deny family leave to an employee who receives compensation that is within the top ten percent of compensation of the employer's employees within the state.

NEW SECTION. Sec. 4. (1) Except as provided in subsection (5) of this section, an employee is entitled to thirteen workweeks of medical leave during any twelve-month period when the employee is unable to perform the functions of the employee's position because of a serious health condition. The leave required by this section shall not be construed to limit any leave required as a reasonable accommodation to the sensory, mental, or physical handicap of the employee.

(2) Medical leave may be taken on a reduced leave schedule if:

(a) The total period during which the thirteen workweeks is taken does not exceed fifty-two consecutive workweeks; and

(b) The leave is scheduled so as not to disrupt unduly the operations of the employer.

(3) The leave required by this section may be unpaid. An employer may require an employee to first use up the employee's total accumulation of paid sick leave, disability leave, vacation leave, personal leave, or other comparable paid leave to which the employee is otherwise entitled before going on unpaid leave; however nothing in this section requires more than thirteen total workweeks of leave.

(4) Nothing in this chapter shall be construed to prohibit an employee with a serious health condition and an employer from mutually agreeing to alternative employment for the employee. Any such period of alternative employment shall not cause a reduction in the period of medical leave to which the employee is entitled.

(5) An employer may limit or deny medical leave to an employee who receives compensation that is within the top ten percent of compensation of the employer's employees within the state.

NEW SECTION. Sec. 5. (1) An employee planning to take family leave under section 3(1)(a) of this act shall provide the employer with at least thirty days' written notice of the expected date of delivery or placement for adoption, except that if the placement for adoption is at an unanticipated time and the employee is unable to give thirty days' written notice, the employee shall notify the employer within twenty-four hours of the placement for adoption.

(2) If family leave under section 3(1)(b) of this act or medical leave under section 4 of this act is foreseeable, the employee shall provide the employer with at least fourteen days' written notice of the expected leave and shall make a reasonable effort to schedule the leave so as not to disrupt unduly the operations of the employer.

(3) If family leave under section 3(1)(b) of this act or medical leave under section 4 of this act is not foreseeable fourteen or more days before the leave is to take place, the employee shall notify the employer within twenty-four hours of knowing when the leave is to take place and shall make a reasonable effort to schedule the leave so as not to disrupt unduly the operations of the employer.

NEW SECTION. Sec. 6. (1) An employer may require that a claim for family leave under section 3(1)(b) of this act or medical leave under section 4 of this act be confirmed by a health care provider of the child, spouse, parent, other relative, or employee, whichever is appropriate.

(2) The health care provider shall confirm:

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

(b) The probable duration of the condition; and

(c) That the individual requires the care of another person and the employee is an appropriate person to provide the care.

(3) 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 (2) of this section. If the health care providers disagree on any factor which is determinative of the employee's eligibility for family or medical leave, the two health care providers shall select a third health care provider, whose opinion, obtained at the employer's expense, shall be conclusive.

NEW SECTION. Sec. 7. An employer may limit the combined number of workweeks of family leave and medical leave provided under this chapter to thirteen workweeks during any twelve-month period.

NEW SECTION. Sec. 8. (1) Subject to subsection (2) of this section, an employee who exercises any right provided under section 3 or 4 of this act shall be entitled, 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) To a position with equivalent benefits, pay, and other terms and conditions of employment.

(2) The entitlement under subsection (1) of this section does not apply if:

(a) The employer is unable to reinstate the employee due to a bona fide reduction in force; or

(b) The employer is unable to reinstate the employee due to the permanent or temporary shutdown of the employee's workplace for at least thirty days or the transfer of the business of the employee's workplace to a location at least sixty miles from the original location of the workplace.

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

(4) Except as provided in section 9 of this act, nothing in this chapter shall be construed to require the employer to grant benefits, including seniority or pension rights, during any period of leave.

(5) All policies applied during the period of leave to the classification of employees to which the employee belongs shall apply to the employee on leave.

NEW SECTION. Sec. 9. If the employer provided medical, dental, or disability benefits to an employee prior to leave under section 3 or 4 of this act, and the employee is not eligible for any employer contribution to medical, dental, or disability benefits under the applicable collective bargaining agreement or employer policy during any period of leave, the employer shall allow the employee to elect to continue the employee's medical, dental, and disability benefits, including any spouse and dependent coverage. The coverage shall be identical to the coverage provided to similarly situated persons not on leave and the premium to be paid by the employee shall not exceed one hundred two percent of the applicable premium for the leave period.

NEW SECTION. Sec. 10. The department shall administer the provisions of this chapter.

NEW SECTION. Sec. 11. The department shall adopt rules to carry out the provisions of this chapter.

NEW SECTION. Sec. 12. (1) The rights and remedies under this chapter are in addition to any other rights or remedies provided by law.

(2) Nothing in this chapter shall be construed to discourage employers from adopting policies which provide greater leave rights to employees than those required by this chapter.

(3) The provisions of this chapter shall be construed liberally for the accomplishment of the purposes thereof.

NEW SECTION. Sec. 13. (1) Nothing in this chapter shall be construed to supersede any provision of any local law which provides greater leave rights to employees than the rights established under this chapter.

(2) Nothing in this chapter shall be construed to diminish an employer's obligation to comply with any collective bargaining agreement or any employment benefit program or plan which provides greater leave rights to employees than the rights provided under this chapter.

(3) The rights provided to employees under this chapter may not be diminished by any collective bargaining agreement or any employment benefit program or plan entered into or renewed after the effective date of this section.

NEW SECTION. Sec. 14. This chapter shall apply to collective bargaining agreements or employment benefit programs or plans entered into or renewed after the effective date of this section.

NEW SECTION. Sec. 15. The department has power to hold hearings, subpoena witnesses, compel their attendance, administer oaths, take the testimony of any person under oath, and in connection therewith, to require the production for examination of any books or papers relating to any matter under investigation or in question before the department. The department may make rules as to the issuance of subpoenas under this chapter, as to service of complaints, decisions, orders, recommendations, and other process or papers of the department, either personally or by registered mail, return receipt requested, or by leaving a copy thereof at the principal office or place of business of the person required to be served. The return post office receipt, when service is by registered mail, shall be proof of service of the same.

NEW SECTION. Sec. 16. No person shall be excused from attending and testifying or from producing records, correspondence, documents, or other evidence in obedience to the subpoena of the department, on the ground that the testimony or evidence required of the person may tend to incriminate or subject the person to a penalty or forfeiture, but no person shall be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter, or thing concerning which the person is compelled, after having claimed the privilege against self-incrimination, to testify or produce evidence, except that such person so testifying shall not be exempt from prosecution and punishment for perjury committed in so testifying. The immunity herein provided shall extend only to natural persons so compelled to testify.

NEW SECTION. Sec. 17. In case of contumacy or refusal to obey a subpoena issued to any person, the superior court of any county within the jurisdiction of which the investigation, proceeding, or hearing is carried on or within the jurisdiction of which the person guilty of contumacy or refusal to obey is found or resides or transacts business, upon application by the department, shall have jurisdiction to issue to such person an order requiring such person to appear before the department, there to produce evidence, if so ordered, or there to give testimony touching the matter under investigation or in question. Any failure to obey such order of the court may be punished by the court as a contempt thereof.

NEW SECTION. Sec. 18. Witnesses before the department shall be paid the same fees and mileage that are paid witnesses in the courts of this state. Witnesses whose depositions are taken and the person taking the same shall be entitled to the same fees as are paid for like services in the courts of the state.

NEW SECTION. Sec. 19. Violation of sections 3 through 9 of this act is an unfair practice.

(1) Any person claiming to be aggrieved by an alleged unfair practice may, personally or by his or her attorney, make, sign, and file with the department a complaint in writing under oath. The complaint shall state the name and address of the person alleged to have committed the unfair practice and the particulars thereof, and contain such other information as may be required by the department.

(2) Whenever it has reason to believe that any person has been engaged or is engaging in an unfair practice, the department may issue a complaint.

(3) Any employer or principal whose employees, or agents, or any of them, refuse or threaten to refuse to comply with the provisions of this chapter may file with the department a written complaint under oath asking for assistance by conciliation or other remedial action.

Any complaint filed pursuant to this section must be so filed within six months after the alleged violation of this chapter.

NEW SECTION. Sec. 20. After the filing of any complaint, the department shall refer it to the appropriate staff of the department for investigation and ascertainment of the facts alleged in the complaint. The results of the investigation shall be reduced to written findings of fact, and a finding shall be made that there is or that there is not reasonable cause for believing that an unfair practice has been or is being committed. A copy of said findings shall be furnished to the complainant and to the person named in such complaint, hereinafter referred to as the respondent.

If the finding is made that there is reasonable cause for believing that an unfair practice has been or is being committed, the staff of the department shall endeavor to eliminate the unfair practice by conference, conciliation, and persuasion.

If an agreement is reached for the elimination of such unfair practice as a result of such conference, conciliation and persuasion, the agreement shall be reduced to writing and signed by the respondent, and an order shall be entered by the department setting forth the terms of said agreement. No order shall be entered by the department at this stage of the proceedings except upon such written agreement.

If no such agreement can be reached, a finding to that effect shall be made and reduced to writing, with a copy thereof furnished to the complainant and the respondent.

NEW SECTION. Sec. 21. (1) In case of failure to reach an agreement for the elimination of an unfair practice or upon violation of a final order issued under section 22(5) of this act, and upon the entry of findings to that effect, the department may issue a citation. The form of the citation shall be adopted by rule under chapter 34.05 RCW. The department may assess a civil penalty not to exceed one thousand dollars for each violation against a person issued a citation. Any person who receives a citation shall pay the amount noted on the citation within thirty days of receipt. Monetary penalties collected under this section shall be deposited into the general fund.

(2) Any person aggrieved by any action taken or decision made by the department under subsection (1) of this section may appeal the action or decision to the director by filing notice of the appeal with the director within thirty days of the department's action or decision. Upon receipt of an appeal, a hearing shall be held in accordance with chapter 34.05 RCW. The director shall issue all final orders after the hearing. The final orders are subject to appeal in accordance with chapter 34.05 RCW. Orders not appealed within the time period specified in chapter 34.05 RCW are final and binding.

NEW SECTION. Sec. 22. (1) Upon consideration of the circumstances of the respondent and the person aggrieved by an unfair practice, and after an evaluation of whether a remedy for the person aggrieved or imposing a penalty under section 21 of this act will more effectively accomplish the purposes of this chapter, the department may, in lieu of imposing a civil penalty under section 21 of this act, seek a remedy for the person aggrieved under this section. The director shall thereupon request the appointment of an administrative law judge under Title 34 RCW to hear the complaint and shall cause to be issued and served in the name of the department a written notice, together with a copy of the complaint, as the same may have been amended, requiring the respondent to answer the charges of the complaint at a hearing before the administrative law judge, at a time and place to be specified in such notice.

(2) The place of any such hearing may be the office of the department or another place designated by it. The case in support of the complaint shall be presented at the hearing by counsel for the department: PROVIDED, That the complainant may retain independent counsel and submit testimony and be fully heard. No member or employee of the department who previously made the investigation or caused the notice to be issued shall participate in the hearing except as a witness, nor shall the member or employee participate in the deliberations of the administrative law judge in such case. Any endeavors or negotiations for conciliation shall not be received in evidence.

(3) The respondent shall file a written answer to the complaint and appear at the hearing in person or otherwise, with or without counsel, and submit testimony and be fully heard. The respondent has the right to cross-examine the complainant.

(4) The administrative law judge conducting any hearing may permit reasonable amendment to any complaint or answer. Testimony taken at the hearing shall be under oath and recorded.

(5) If, upon all the evidence, the administrative law judge finds that the respondent has engaged in any unfair practice, the administrative law judge shall state findings of fact and shall issue and file with the department and cause to be served on such respondent an order requiring such respondent to cease and desist from such unfair practice and to take such affirmative action, including, but not limited to, hiring, reinstatement or upgrading of employees, with or without back pay, or to take such other action as, in the judgment of the administrative law judge, will effectuate the purposes of this chapter, including action that could be ordered by a court, except that damages for humiliation and mental suffering shall not exceed one thousand dollars, and including a requirement for report of the matter on compliance.

(6) The final order of the administrative law judge shall include a notice to the parties of the right to obtain judicial review of the order by appeal in accordance with the provisions of RCW 34.05.518 or 34.05.570, and that such appeal must be served and filed within thirty days after the service of the order on the parties.

(7) If, upon all the evidence, the administrative law judge finds that the respondent has not engaged in any alleged unfair practice, the administrative law judge shall state findings of fact and shall similarly issue and file an order dismissing the complaint.

(8) An order dismissing a complaint may include an award of reasonable attorneys' fees in favor of the respondent if the administrative law judge concludes that the complaint was frivolous or brought in bad faith.

(9) The department may impose a civil penalty under section 21(1) of this act upon any person who violates a final order. The respondent may seek review of the penalty under section 21(2) of this act or, if the respondent has sought judicial review of the underlying order, the respondent may seek review of the penalty as part of the review of the underlying order.

(10) The department shall establish rules of practice to govern, expedite and effectuate the foregoing procedure.

NEW SECTION. Sec. 23. (1) The department shall petition the court within the county wherein any unfair practice occurred or wherein any person charged with an unfair practice resides or transacts business for the enforcement of any final order which is not complied with and is issued by the department or an administrative law judge under the provisions of this chapter and for appropriate temporary relief or a restraining order, and shall certify and file in court the final order sought to be enforced. Within five days after filing such petition in court, the department shall cause a notice of the petition to be sent by registered mail to all parties or their representatives.

(2) From the time the petition is filed, the court shall have jurisdiction of the proceedings and of the questions determined thereon, and shall have the power to grant such temporary relief or restraining order as it deems just and suitable.

(3) If the petition shows that there is a final order issued by the department or administrative law judge under section 20, 21, or 22 of this act and that the order has not been complied with in whole or in part, the court shall issue an order directing the person who is alleged to have not complied with the administrative order to appear in court at a time designated in the order, not less than ten days from the date thereof, and show cause why the administrative order should not be enforced according to the terms. The department shall immediately serve the person with a copy of the court order and the petition.

(4) The administrative order shall be enforced by the court if the person does not appear, or if the person appears and the court finds that:

(a) The order is regular on its face;

(b) The order has not been complied with; and

(c) The person's answer discloses no valid reason why the order should not be enforced, or that the reason given in the person's answer could have been raised by review under RCW 34.05.570, and the person has given no valid excuse for failing to use that remedy.

(5) The jurisdiction of the court shall be exclusive and its judgment and decree shall be final, except that the same shall be subject to appellate review by the supreme court or the court of appeals, on appeal, by either party, irrespective of the nature of the decree or judgment. The review shall be taken and prosecuted in the same manner and form and with the same effect as is provided in other cases.

NEW SECTION. Sec. 24. Any respondent or complainant, including the department, aggrieved by a final order of an administrative law judge may obtain judicial review of such order as provided under the administrative procedure act, chapter 34.05 RCW. From the time a petition for review is filed, the court has jurisdiction to grant to any party such temporary relief or restraining order as it deems just and suitable. If the court affirms the order, it shall enter a judgment and decree enforcing the order as affirmed.

NEW SECTION. Sec. 25. Petitions filed under sections 23 and 24 of this act shall be heard expeditiously and determined upon the transcript filed, without requirement of printing. Hearings in the court under this chapter shall take precedence over all other matters, except matters of the same character.

NEW SECTION. Sec. 26. In any case in which the department shall issue an order against any political or civil subdivision of the state, or any agency, or instrumentality of the state or of the foregoing, or any officer or employee thereof, the department shall transmit a copy of such order to the governor of the state. The governor shall take such action to secure compliance with such order as the governor deems necessary.

NEW SECTION. Sec. 27. It is an unfair practice for any employer, employment agency, labor union, or other person to 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 charge, testified, or assisted in any proceeding under this chapter.

NEW SECTION. Sec. 28. It is an unfair practice for any person to aid, abet, encourage, or incite the commission of any unfair practice, or to attempt to obstruct or prevent any other person from complying with the provisions of this chapter or any order issued thereunder, or to resist, prevent, impede, or interfere with the department or representatives in the performance of a duty under this chapter. Seeking review of an order shall not constitute an unfair practice.

NEW SECTION. Sec. 29. Any person deeming himself or herself damaged by an act in violation of this chapter shall have a civil action in a court of competent jurisdiction to enjoin further violations or to recover the actual damages sustained by him or her, or both, together with the cost of suit including reasonable attorneys' fees, in addition to any other remedy authorized by this chapter.

NEW SECTION. Sec. 30. The sum of three hundred thousand dollars, or as much thereof as may be necessary, is appropriated for the biennium ending June 30, 1991, from the general fund to the department of labor and industries for the purpose of this act.

NEW SECTION. Sec. 31. If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected.

NEW SECTION. Sec. 32. Sections 1 through 29 of this act shall constitute a new chapter in Title 49 RCW.

NEW SECTION. Sec. 33. This act shall take effect September 1, 1989.