SENATE BILL REPORT

                  EHB 2093

              As Reported By Senate Committee On:

               Commerce & Labor, March 27, 1997

Title:  An act relating to achieving consistency between state and federal family leave requirements.

Brief Description:  Achieving consistency between state and federal family leave requirements.

Sponsors:  Representatives Boldt, McMorris, Lisk, Clements and Honeyford.

Brief History:

Committee Activity:  Commerce & Labor:  3/25/97, 3/27/97 [DP].

SENATE COMMITTEE ON COMMERCE & LABOR

Majority Report:  Do pass.

  Signed by Senators Schow, Chair; Horn, Vice Chair; Anderson, Franklin, Fraser, Heavey and Newhouse.

Staff:  Jonathan Seib (786-7427)

Background: State family leave law.  In 1989, the state family leave law was enacted.  The family leave law applies to employers of 100 or more employees and to all state government employers.  The law entitles a covered employee to up to 12 work weeks of unpaid family leave during any 24-month period to care for the employee's newborn child or adopted child under the age of six, or to care for the employee's terminally ill child who is under age 18. 

An employee must give 30 days' written notice of his or her plan to take family leave except in specified circumstances when notice must be given as soon as possible.  On return from leave, the employee is entitled to the same employment position as he or she held when leave commenced or to a position with equivalent benefits and pay at a workplace within 20 miles of the original workplace.

This leave is in addition to leave for sickness or temporary disability related to pregnancy or childbirth.  Under Washington's law against discrimination, the Human Rights Commission has adopted a rule requiring employers to grant a woman a leave of absence for the actual period of time that she is sick or temporarily disabled because of pregnancy or childbirth, with some exceptions related to business necessity.  Generally, an employer's policy on leave for disability must treat pregnancy and childbirth the same as other disabilities.

If the family leave entitlements are violated, the employee may file a complaint with the Department of Labor and Industries.  The department may issue a notice of infraction and employers found to have committed an infraction are subject to a penalty of up to $200 for a first offense and up to $1,000 per infraction for continuing to violate the family leave law.  If an employer fails to reinstate an employee, reinstatement may be ordered with or without back pay.

Federal family and medical leave law.  The federal Family and Medical Leave Act was enacted in 1993.  The federal law applies to employers of 50 or more employees and entitles employees to up to 12 weeks of unpaid leave in any 12-month period.  Employees may take leave to care for the employee's newborn child or adopted child under age 18 or to care for a spouse, child, or parent with a serious health condition, or because of the serious health condition of the employee that makes the employee unable to perform his or her job.  "Serious health condition" includes any period of incapacity due to pregnancy or prenatal care.  Special leave rules apply to certain educational employees.

The employee must provide 30 days' notice when the leave is foreseeable.  On return from leave, most employees are entitled to be restored to the same employment position as he or she held when leave commenced or to a position with equivalent pay and benefits.  Rules adopted to implement the federal law require the employee to be reinstated to the same or a geographically proximate worksite.

The U.S. Department of Labor is authorized to investigate complaints and bring actions in court to recover damages for violations.  Employers are liable for wages lost by the employee or actual monetary damages, and double damages may be awarded.  Employees may be ordered reinstated.  Employees may also file civil actions to recover these damages.

Under the federal law, a state law that provides greater family or medical leave rights is not superseded by the federal law.

Summary of Bill:  The Department of Labor and Industries is directed to cease administration and enforcement of the state family leave law until the earlier of the following dates:

  -the effective date of repeal of the federal family and medical leave law; or

-July 1 of the year following the year that the federal family and medical leave law is amended to provide less leave than the state law.  In determining whether the federal law provides the same or more leave, the department must only consider whether:  (1) the total period of leave under the federal law is 12 or more weeks in a 24-month period; and (2) whether the types of leave under the federal law are similar to the types of leave under the state law.

Two requirements under the state family leave law continue to be enforced, however.  An employee=s right, upon returning from leave, to be returned to a workplace within 20 miles of the original workplace remains in effect.  The family leave entitlement under federal law is in addition to leave for sickness or temporary disability because of pregnancy or childbirth.  These requirements are enforced under the state family leave law, except that an employer receiving an initial notice of infraction has 30 days to take corrective action and no infraction or penalty may be assessed if the employer complies with the requirements of the initial notice.

Appropriation:  None.

Fiscal Note:  Not requested.

Effective Date:  Ninety days after adjournment of session in which bill is passed.

Testimony For:  Having both a state and federal family leave law is confusing for both employers and employees, and creates the potential for abuse.  The bill addresses this confusion, but retains the portions of the state law which are more beneficial to employees. 

Testimony Against:  None.

Testified:  PRO: Robbie Stern, Washington State Labor Council; Clif Finch, Association of Washington Business.