AN ACT Relating to family and medical leave; adding a new chapter to Title 49 RCW; creating a new section; and prescribing penalties.

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

NEW SECTION. Sec. 1. The legislature finds that the demands of the workplace and the needs of families need to be balanced to promote the stability and economic security of families. Changes in leave policies are desirable to accommodate changes in the work force such as rising numbers of dual-career couples and working mothers. The legislature declares it to be in the public interest to provide reasonable parental leave for the birth or adoption of a child and family leave to care for a family member 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, 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 mental or physical disability.

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

(3) "Employee" means a person engaged by an employer on a full-time basis in a job that is not considered temporary or seasonal and who has completed an initial probationary period of not less than three months under a formal probationary policy or one year of employment, whichever is less. "Employee" does not include any individual employed by his or her parents, spouse, or child or who is in the domestic service of any person.

(4) "Employer" includes any person acting in the interest of an employer, directly or indirectly, who employs twenty-five or more persons who carry on their employment in the same approximate geographical location: PROVIDED, That through December 31, 1991, "employer" is limited to a person acting in the interest of an employer, directly or indirectly, who employs fifty or more persons.

(5) "Family leave" means leave from employment to care for specified family members with serious health conditions, as provided in section 3 of this act.

(6) "Health care provider" means a person licensed as a physician under chapter 18.71 RCW, and 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.

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

(8) "Parental leave" means leave from employment to care for a birth or adoptive child, as provided in section 3 of this act.

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

(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.

!ixTo take family leave because of the serious health condition of a family member under section 3 of this act, the presence of the employee must be necessary to care for the individual, as determined by a health care provider.

NEW SECTION. Sec. 3. (1) An employee is entitled to sixteen workweeks of leave during any twenty-four month period under the circumstances in (a) and (b) of this subsection.

(a) An employee may take parental leave to care for a birth child or adoptive child under the age of six of the employee. Leave under this subsection shall be completed within twelve months after the birth or placement for adoption, as applicable.

(b) An employee may take family 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; or

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

!ixAn employee may take leave under this subsection only when the presence of the employee is necessary to care for the individual, as determined by a health care provider. For a serious health condition which is expected to last more than two weeks, an employee may take leave on an intermittent basis as medically necessary. An employer may limit family leave under this subsection for conditions expected to last two weeks or less to leave for three such conditions during any twenty-four month period.

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

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

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

(3) The leave required by this section may be unpaid. If an employer provides paid parental or family leave for fewer than sixteen workweeks, the additional weeks of leave added to attain the sixteen workweek total may be unpaid. An employer may require an employee to first use 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.

(4) The department may, upon the request of an employer, grant a full or partial exemption from the requirements of this section for a particular employee upon a showing by the employer that if the employee took leave which requires prior notice under section 4 of this act or continues to take leave under subsection (1)(b) of this section which was not foreseeable, the absence of the employee would create a severe financial hardship on the employer in that the functions of the employee cannot be performed by any other person engaged by the employer. The employer shall notify the employee of the exemption request in a manner as determined by the department. The department shall establish procedures for determining requests, which shall provide for the initial determination of exemptions in an expedited manner. A person aggrieved by a decision of the department may seek review under the administrative procedure act, chapter 34.05 RCW.

(5) An employer shall allow an employee to use the employee's accrued sick leave for parental or family leave.

NEW SECTION. Sec. 4. (1) An employee planning to take parental leave under section 3(1)(a) of this act shall provide the employer with prior notice of such expected birth or adoption in a manner and at a time which is reasonable and practical.

(2) If family leave under section 3(1)(b) of this act is foreseeable, the employee shall make a reasonable effort to schedule the leave so as not to disrupt unduly the operations of the employer, subject to approval of the health care provider, and shall provide the employer with prior notice of such expected leave in a manner and at a time which is reasonable and practical.

NEW SECTION. Sec. 5. (1) An employer may require that a claim for family leave under section 3(1)(b) of this act be supported by certification issued by the health care provider of the child, spouse, or parent, whichever is appropriate.

(2) The certification shall state:

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

(b) The probable duration of the condition; and

(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 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. 6. (1) Subject to subsection (2) of this section, an employee who exercises any right provided under section 3 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 is subject to bona fide provisions on reduction-in-force.

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

(4) Except as provided in section 7 of this act, nothing in this chapter shall be construed to require the employer to grant benefits, including seniority, 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. 7. If the employer provided health benefits to an employee prior to leave under section 3 of this act, and the employee is not eligible for any employer contribution to health 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 health 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. 8. The department shall administer and investigate violations of this chapter.

NEW SECTION. Sec. 9. The department shall adopt rules to carry out the provisions of this chapter.

NEW SECTION. Sec. 10. The rights and remedies under this chapter are in addition to any other rights or remedies provided by law.

NEW SECTION. Sec. 11. (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. 12. Nothing in this chapter shall be construed to discourage employers from adopting leave policies greater than those required by this chapter.

NEW SECTION. Sec. 13. 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. 14. 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. 15. 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. 16. 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. 17. Witnesses before the department shall be paid the same fees and mileage as are paid witnesses in the courts of this state. Witnesses whose depositions are taken and the person taking the deposition shall be entitled to the same fees as are paid for the services in the courts of the state.

NEW SECTION. Sec. 18. Violation of sections 3 through 7 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 the department 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 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 filed within six months after the alleged violation of this chapter.

NEW SECTION. Sec. 19. After the filing of any complaint, the department shall refer the complaint to the appropriate staff of the department for prompt investigation and ascertainment of the facts alleged in the complaint. The investigation shall be limited to the alleged facts contained 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 the findings shall be furnished to the complainant and to the person named in the 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 immediately endeavor to eliminate the unfair practice by conference, conciliation and persuasion.

If an agreement is reached for the elimination of the 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 the agreement. No order shall be entered by the department at this stage of the proceedings except upon written agreement.

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

NEW SECTION. Sec. 20. (1) In case of failure to reach an agreement for the elimination of an unfair practice, and upon the entry of findings to that effect, the entire file, including the complaint and any and all findings made, shall be certified to the director of the department. 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 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 the notice.

(2) The place of the hearing may be the office of the department or another place designated by the department. The case in support of the complaint shall be presented at the hearing by counsel for the department. 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 the 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 the respondent an order requiring the respondent to cease and desist from the 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 RCW 34.05.510 through 34.05.598, and that such appeal must be served and filed within thirty days after 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, unreasonable, or groundless.

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

NEW SECTION. Sec. 21. (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 RCW 49.60.240 or 49.60.250 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 34.05.510 through 34.05.598, 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 a review by the supreme court or the court of appeals, on appeal, by either party, irrespective of the nature of the decree or judgment. Such appeal shall be taken and prosecuted in the same manner and form and with the same effect as is provided in other cases of appeal to the supreme court or the court of appeals, and the record so certified shall contain all that was before the lower court.

NEW SECTION. Sec. 22. 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. 23. Petitions filed under sections 21 and 22 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. 24. Any person who wilfully resists, prevents, impedes, or interferes with the department or representatives in the performance of duty under this chapter, or who wilfully violates an order of the department, is guilty of a misdemeanor; but procedure for the review of the order shall not be deemed to be such willful conduct.

NEW SECTION. Sec. 25. 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 the order as the governor deems necessary.

NEW SECTION. Sec. 26. 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. 27. 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.

NEW SECTION. Sec. 28. 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, to recover the actual damages sustained by him or her, or both, together with the cost of suit including reasonable attorney's fees.

NEW SECTION. Sec. 29. 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. 30. Sections 1 through 28 of this act shall constitute a new chapter in Title 49 RCW.