AN ACT Relating to family and medical leave; adding a new chapter to Title 49 RCW; prescribing penalties; 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. 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 child 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 living with the employee, who is:

(a) Under eighteen years of age; or

(b) Under twenty-one years of age, incapable of self-care because of a total and permanent disability and who is to a majority degree financially dependent on the employee.

(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 thirty-six hours per week; and

(b) Who has been employed on a continuous basis in a permanent position for the previous fifty-two weeks for at least thirty-six hours per week.

(4) "Employer" means 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 and includes the state, state institutions, state agencies, and any unit of local government including, but not limited to, a county, city, town, municipal corporation, quasi-municipal corporation, or political subdivision which employed one hundred or more persons in this state 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 under the age of six, or a child 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 or an osteopath under chapter 18.57 RCW.

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

(8) "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.

(9) "Reduced leave schedule" means leave scheduled for fewer than an employee's usual number of hours per workweek or hours per workday as determined by the employer.

(10) "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 for at least seven days by a health care provider.

NEW SECTION. Sec. 3. (1) An employee is entitled to ten 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 includes any leave because of disability as a result of sickness or temporary disability because of pregnancy or childbirth. The leave required by this section includes any leave because of disability as a result of sickness or temporary disability because of pregnancy or child birth, so that an employer may limit the total combined number of workweeks of unpaid leave to ten workweeks during a twelve-month period.

(a) An employee may take leave to care for a newborn child or adopted child of the employee who is under the age of sixteen at the time of placement or 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 his or her child who has a serious health condition.

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 ten 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 ten workweeks, the additional weeks of leave added to attain the ten-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. An employer is not required to allow an employee to use the employee's paid leave in place of the unpaid leave provided under this chapter.

(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) An employee planning to take family leave under section 3(1)(a) of this act shall provide the employer with prior written notice at least thirty days in advance of the anticipated date of delivery, stating the dates during which each parent intends to take family leave. Duplicate copies of the notice shall be given to the employers of both parents. Both parents shall adhere to the dates stated in the notice unless:

(a) The birth is premature;

(b) The mother is incapacitated due to birth such that she is unable to care for the child;

(c) The employee takes physical custody of the newly adopted child at an unanticipated time and is unable to give notice thirty days in advance; or

(d) The employer and employee agree to alter the dates of family leave stated in the notice.

(2) In cases of premature birth, incapacity, or unanticipated taking of custody referred to in subsection (1) of this section, the employer may require the employee to give notice of revised dates of family leave within seven days after birth or taking of custody.

(3) If the employee fails to give the notice that may be required by this section, the employer may require the family leave to commence up to three weeks from the date of notice and may reduce the family leave required by this section by three weeks.

(4) If family leave under this chapter or medical leave under this chapter is foreseeable, the employee shall provide the employer with at least thirty 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.

(5) If family leave under this chapter or medical leave under this chapter is not foreseeable thirty 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. 5. (1) An employer may require that a claim for family leave under section 3(1)(b) of this act be confirmed by a health care provider of the child.

(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 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. An employer may limit the combined number of workweeks of family leave provided under this chapter to ten workweeks during any twelve-month period.

NEW SECTION. Sec. 7. An employer is not required to grant to an employee family leave which would allow the employee and the other parent of the child, if also employed, family leave totaling more than the amount specified in section 6 of this act, nor to grant to an employee family leave for any period of time in which the child's other parent is also taking family leave from employment. A married couple working for the same employer shall be limited to a combined family leave of ten weeks.

NEW SECTION. Sec. 8. (1) Subject to subsections (2) and (3) 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 and pay at an employee site within twenty miles of an employer arranged work-site; or

(c) If the employer's circumstances have so changed that the employee cannot be reinstated to the same or equivalent position, the employee shall be reinstated in any other position which is available and suitable.

(2) The entitlement under subsection (1) of this section is subject to bona fide restructuring and/or reduction-in-force.

(3) The entitlement in subsection (1) of this section does not apply to any posts for which the employer is unable to find a replacement or if the employer is unable to reinstate the employee due to the permanent or temporary shutdown of the employee's work-place for at least thirty days or the transfer of the business of the employee's work-place to a location at least sixty miles from the original location of the work-place.

(4) 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.

(5) Except as provided in section 10 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.

(6) 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 an employee on family leave takes a job with another employer, the original employer's obligation to reinstate the employee at the end of the leave is canceled.

NEW SECTION. Sec. 10. During any period of leave taken under section 3 of this act, an employer shall allow the employee to continue, at his or her own expense, health insurance coverage, including any spouse and dependent coverage, in accord with state or federal law. 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. 11. The department shall administer 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.

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. 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. 16. No employer, employment agency, labor union, or other person shall 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 complaint, testified, or assisted in any proceeding under this chapter.

NEW SECTION. Sec. 17. (1) An employee who believes that his or her employer has not complied with this chapter may file a complaint with the department within thirty days of the alleged violation. The complaint shall contain the following:

(a) The name and address of the employee making the complaint;

(b) The name, address, and telephone number of the employer against whom the complaint is made;

(c) A statement of the specific facts which constitute the alleged violation, including the date(s) on which the alleged violation occurred.

(2) Upon receipt of a complaint, the department shall forward written notice of the complaint to the employer.

(3) The department may investigate any complaint it deems appropriate. If the department determines that a violation of this chapter has occurred, it may issue a notice of infraction.

NEW SECTION. Sec. 18. The department may issue a notice of infraction to an employer who violates this chapter. The employment standards supervisor shall direct that notices of infraction contain the following when issued:

(1) A statement that the notice represents a determination that the infraction has been committed by the employer named in the notice and that the determination shall be final unless contested;

(2) A statement that the infraction is a noncriminal offense for which imprisonment shall not be imposed as a sanction;

(3) A statement of the specific violation which necessitated issuance of the infraction;

(4) A statement of the penalty involved if the infraction is established;

(5) A statement informing the employer of the right to a hearing conducted pursuant to chapter 34.05 RCW if requested within twenty days of issuance of the infraction;

(6) A statement that at any hearing to contest the notice of infraction the state has the burden of proving, by a preponderance of the evidence, that the infraction was committed, and that the employer may subpoena witnesses including the agent that issued the notice of infraction;

(7) If a notice of infraction is personally served upon a supervisory or managerial employee of a firm or corporation, the department shall within ten days of service send a copy of the notice by certified mail to the employer;

(8) Constructive service may be made by certified mail directed to the employer named in the notice of infraction.

NEW SECTION. Sec. 19. (1) If an employer is a corporation or a partnership, the department need not serve the employer personally. In such a case, if no officer or partner of a violating employer is present, the department may issue a notice of infraction to any supervisor or managerial employee.

(2) If the department serves a notice of infraction on a supervisory or managerial employee, and not on an officer, or partner of the employer, the department shall mail by certified mail a copy of the notice of infraction to the employer. The department shall mail a second copy by ordinary mail.

NEW SECTION. Sec. 20. (1) If an employer desires to contest the notice of infraction issued, the employer shall file two copies of a notice of appeal with the department at the office designated on the notice of infraction, within twenty days of issuance of the infraction.

(2) The department shall conduct a hearing in accordance with chapter 34.05 RCW.

(3) Employers may appear before the administrative law judge through counsel, or may represent themselves. The department shall be represented by the attorney general.

(4) All relevant evidence shall be admissible in a hearing convened pursuant to RCW 49.12.270 through 49.12.295. Admission of evidence is subject to RCW 34.05.452 and 34.05.446 of the administrative procedure act of Washington.

(5) The administrative law judge shall issue a proposed decision that includes findings of fact, conclusions of law, and if appropriate, any legal penalty. The proposed decision shall be served by certified mail or personally on the employer and the department. The employer or department may appeal to the director within thirty days after the date of issuance of the proposed decision. If none of the parties appeals within thirty days, the proposed decision may not be appealed either to the director or the courts.

(6) An appellant must file with the director an original and four copies of its notice of appeal. The notice of appeal must specify which findings and conclusions are erroneous. The appellant must attach to the notice the written arguments supporting its appeal.

The appellant must serve a copy of the notice of appeal and the arguments on the other parties. The respondent parties must file with the director their written arguments within thirty days after the date the notice of appeal and the arguments were served upon them.

(7) The director shall review the proposed decision in accordance with the administrative procedure act, chapter 34.05 RCW. The director may: Allow the parties to present oral arguments as well as the written arguments; require the parties to specify the portions of the record on which the parties rely; require the parties to submit additional information by affidavit or certificate; remand the matter to the administrative law judge for further proceedings; and require a departmental employee to prepare a summary of the record for the director to review. The director shall issue a final decision that can affirm, modify, or reverse the proposed decision.

(8) The director shall serve the final decision on all parties. Any aggrieved party may appeal the final decision to superior court pursuant to RCW 34.05.570 unless the final decision affirms an unappealed proposed decision. If no party appeals within the period set by RCW 34.05.570, the director's decision is conclusive and binding on all parties.

NEW SECTION. Sec. 21. An employer found to have committed an infraction under this chapter may be assessed the maximum penalty of a fine of two hundred dollars for the first noncompliance violation. An employer that continues to violate the terms of the statute may be subject to a fine not to exceed one thousand dollars for each violation.

NEW SECTION. Sec. 22. 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. 23. Sections 1 through 22 of this act shall constitute a new chapter in Title 49 RCW.

NEW SECTION. Sec. 24. This act shall take effect September 1, 1989.