BILL REQ. #: S-4266.2
| State of Washington | 62nd Legislature | 2012 Regular Session |
Read first time 02/01/12. Referred to Committee on Labor, Commerce & Consumer Protection.
AN ACT Relating to family and medical leave; amending RCW 49.86.005, 49.86.010, 49.86.020, 49.86.030, 49.86.050, 49.86.060, 49.86.070, 49.86.080, 49.86.090, 49.86.100, 49.86.110, 49.86.120, 49.86.130, 49.86.140, 49.86.160, 49.86.170, 49.86.180, 43.79A.040, 49.86.210, 50.29.021, and 50.29.021; reenacting and amending RCW 34.05.328; adding new sections to chapter 49.86 RCW; adding a new section to chapter 82.04 RCW; repealing RCW 49.86.040; providing an effective date; and providing expiration dates.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
Sec. 1 RCW 49.86.005 and 2007 c 357 s 1 are each amended to read
as follows:
The legislature finds that, although family and medical leave laws
have assisted individuals to balance the demands of the workplace with
their family responsibilities, more needs to be done to achieve the
goals of parent and child bonding, family care, children and family
health, workforce stability, and economic security. In particular, the
legislature finds that many individuals do not have access to family
and medical leave laws, and those who do may not be in a financial
position to take family and medical leave that is unpaid, and that
employer-paid benefits meet only a relatively small part of this need.
The legislature declares it to be in the public interest to establish
a program that: (1) Allows parents to bond with a newborn or newly
placed child, and workers to care for family members with a serious
health condition or to recover from their own serious health condition;
(2) provides limited and additional income support for a reasonable
period while an individual is away from work on family and medical
leave; (3) reduces the impact on state income support programs by
increasing an individual's ability to provide caregiving services for
((a child)) family members while maintaining an employment
relationship; and (4) establishes a wage replacement benefit to be
coordinated with current existing state and federal family and medical
leave laws.
Sec. 2 RCW 49.86.010 and 2007 c 357 s 3 are each amended to read
as follows:
The definitions in this section apply throughout this chapter
unless the context clearly requires otherwise.
(1)(a) With respect to leave for the birth or placement of a child,
"application year" means the twelve-month period beginning on the date
of the birth or placement of the child.
(b) With respect to leave for a family member's serious health
condition or the individual's serious health condition, "application
year" means the twelve-month period beginning on the first day of the
calendar week in which an individual files an initial application for
family and medical leave insurance benefits ((and, thereafter, the
twelve-month period beginning with the first day of the calendar week
in which the individual next files an application for family leave
insurance benefits after the expiration of the individual's last
preceding application year)).
(c) An application year may not begin before the individual's last
preceding application year has expired.
(2) "Calendar quarter" means the same as in RCW 50.04.050.
(3) (("Child" means a biological or an adopted child.)) "Child,"
"health care provider," "parent," "serious health condition," and
"spouse" means the same as in RCW 49.78.020.
(4) "Department" means the state agency to be directed to
administer the family leave insurance program.
(5) "Director" means the director of the department.
(4) "Commissioner" means the commissioner of the department.
(5) "Department" means the employment security department.
(6) "Employer" means: (a) The same as in RCW 50.04.080; and (b)
the state and its political subdivisions.
(7) "Employment" has the meaning provided in RCW 50.04.100.
(8) "Family and medical leave" means leave((: (a) Because of the
birth of a child of the employee and in order to care for the child; or
(b) because of the placement of a child with the employee for
adoption)) for a family member's serious health condition, leave for
the birth or placement of a child, and leave for the individual's
serious health condition as these types of leave are defined in RCW
49.78.020 and described in RCW 49.78.220.
(9) "Family and medical leave insurance benefits" means the
benefits payable under RCW 49.86.050 and 49.86.060.
(10) "Family member" means a child, spouse, domestic partner, or
parent of the individual.
(11) "Federal family and medical leave act" means the federal
family and medical leave act of 1993 (Act Feb. 5, 1993, P.L. 103-3, 107
Stat. 6).
(((11))) (12) "Premium" or "premiums" means payments required by
this chapter to be made to the department for the family and medical
leave insurance account under RCW 49.86.170.
(13) "Qualifying year" means the first four of the last five
completed calendar quarters or, if eligibility is not established, the
last four completed calendar quarters immediately preceding the first
day of the individual's application year.
(((12))) (14) "Regularly working" means the average number of hours
per workweek that an individual worked in the two quarters of the
individual's qualifying year in which total wages were highest.
Sec. 3 RCW 49.86.020 and 2007 c 357 s 4 are each amended to read
as follows:
(1) The department shall establish and administer a family and
medical leave insurance program and pay family and medical leave
insurance benefits as specified in this chapter.
(2) The department shall establish procedures and forms for filing
claims for benefits under this chapter. The department shall notify
the employer within five business days of a claim being filed under RCW
49.86.030.
(3) The department may require that an individual attest that:
(a) There has been a birth or placement of a child, or the
individual or the individual's family member has a serious health
condition, as applicable; and
(b) The individual is not earning waiting period credits or
receiving benefits under chapter 7.68 RCW, Title 50 or 51 RCW, or other
applicable federal or state crime victims' compensation, unemployment
compensation, industrial insurance, or disability insurance laws; and
(c) The individual's serious health condition is not a result of
the individual's perpetration of a gross misdemeanor or felony.
(4) The department may require that a claim for benefits under this
chapter be supported by a certification issued by the health care
provider providing health care to the individual or the individual's
family member, as applicable.
(5) The department shall use information sharing and integration
technology to facilitate the disclosure of relevant information or
records by ((the employment security department)) another state agency,
so long as an individual consents to the disclosure as required under
RCW 49.86.030(((4))) (1)(d).
(((4))) (6) Information contained in the files and records
pertaining to an individual under this chapter are confidential and not
open to public inspection, other than to public employees in the
performance of their official duties. However, the individual or an
authorized representative of an individual may review the records or
receive specific information from the records on the presentation of
the signed authorization of the individual. An employer or the
employer's duly authorized representative may review the records of an
individual employed by the employer in connection with a pending claim.
At the department's discretion, other persons may review records when
such persons are rendering assistance to the department at any stage of
the proceedings on any matter pertaining to the administration of this
chapter.
(((5))) (7) The department shall develop and implement an outreach
program to ensure that individuals who may be eligible to receive
family and medical leave insurance benefits under this chapter are made
aware of these benefits. Outreach information shall explain, in an
easy to understand format, eligibility requirements, the claims
process, weekly benefit amounts, maximum benefits payable, notice and
medical certification requirements, reinstatement and nondiscrimination
rights, confidentiality, and ((coordination of leave)) the relationship
between employment protection, leave from employment, and wage
replacement benefits under this chapter and other laws, collective
bargaining agreements, and employer policies. Outreach information
shall be prepared by the department with technical assistance from the
department of labor and industries. Outreach information shall be
available in English and other primary languages as defined in RCW
74.04.025.
Sec. 4 RCW 49.86.030 and 2011 1st sp.s. c 25 s 1 are each amended
to read as follows:
((Beginning October 1, 2015,)) (1) Family and medical leave
insurance benefits are payable to an individual during a period in
which the individual is unable to perform his or her regular or
customary work because he or she is on family and medical leave if the
individual:
(((1))) (a) Files a claim for benefits in the six-week period
beginning on the first day of the calendar week in which the individual
is on leave for the birth or placement of a child, or in each week in
which the individual is on ((family)) leave for a family member's
serious health condition, and as required by rules adopted by the
((director)) commissioner;
(((2))) (b) Has been employed for at least six hundred eighty hours
((in employment)) during the individual's qualifying year;
(((3))) (c) Establishes an application year. An application year
may not be established if the qualifying year includes hours worked
before establishment of a previous application year;
(((4))) (d) Consents to the disclosure of information or records
deemed private and confidential under ((chapter 50.13 RCW)) state law.
Initial disclosure of this information and these records by ((the
employment security department)) another state agency to the department
is solely for purposes related to the administration of this chapter.
Further disclosure of this information or these records is subject to
RCW 49.86.020(((3))) (4) and section 14 of this act;
(((5))) (e) Discloses whether or not he or she owes child support
obligations as defined in RCW 50.40.050; ((and)) (f) Provides the
employer from whom family and medical leave is to be taken with written
notice of the individual's intention to take family and medical leave
in the same manner as an employee is required to provide notice in RCW
49.78.250 and, in the individual's claim for benefits, attests that
written notice has been provided; and
(6) Documents that he or she has provided
(g) Provides a document authorizing the family member's or
individual's health care provider, as applicable, to disclose the
family member's or individual's health care information in the form of
the certification of a serious health condition. To be valid, the
disclosure authorization must satisfy the requirements set forth in RCW
70.02.030.
(2)(a) With respect to leave for the birth or placement of a child,
family and medical leave insurance benefits are payable beginning as
soon as funds are available on or after October 1, 2014.
(b) With respect to leave for a family member's serious health
condition, family and medical leave insurance benefits are payable
beginning October 1, 2016.
NEW SECTION. Sec. 5 A new section is added to chapter 49.86 RCW
to read as follows:
With respect to leave for the individual's serious health
condition, an individual is disqualified from family and medical leave
insurance benefits beginning with the first day of the calendar week,
and continuing for the next fifty-two consecutive weeks, in which the
individual is suffering from a serious health condition resulting from
the individual's perpetration of a gross misdemeanor or felony.
Sec. 6 RCW 49.86.050 and 2007 c 357 s 7 are each amended to read
as follows:
(1) The maximum number of weeks during which family and medical
leave insurance benefits are payable in an application year is ((five
weeks)) six weeks for the leave for the birth or placement of a child
and a family member's serious health condition and twenty-six weeks for
the individual's serious health condition. However, benefits are not
payable during a waiting period consisting of the first seven calendar
days of family and medical leave taken in an application year with
respect to a particular type of family and medical leave, whether the
first seven calendar days of family and medical leave are employer paid
or unpaid.
(2)(a) The first payment of benefits must be made to an individual
within two weeks after the completed claim is ((filed)) received or the
family and medical leave began, whichever is later, and subsequent
payments must be made ((semimonthly)) biweekly thereafter.
(b) The payment of benefits under this chapter shall not be
considered a binding determination of the obligations of the department
under this chapter. The acceptance of compensation by the individual
shall likewise not be considered a binding determination of his or her
rights under this chapter. Whenever any payment of benefits under this
chapter has been made and timely appeal therefrom has been made where
the final decision is that the payment was improper, the individual
shall repay it and recoupment may be made from any future payment due
to the individual on any claim under this chapter. The ((director))
commissioner may exercise his or her discretion to waive, in whole or
in part, the amount of any such payments where the recovery would be
against equity and good conscience.
(c) If an individual dies before he or she receives a payment of
benefits, the payment shall be made by the department and distributed
consistent with the terms of the decedent's will or, if the decedent
dies intestate, consistent with the terms of RCW 11.04.015.
Sec. 7 RCW 49.86.060 and 2007 c 357 s 8 are each amended to read
as follows:
The amount of family and medical leave insurance benefits shall be
determined as follows:
(1) The weekly benefit shall be ((two hundred fifty dollars per
week for an individual who at the time of beginning family leave was
regularly working thirty-five hours or more per week)) .55 times an
individual's weekly earnings.
(2) ((If)) For an individual who at the time of beginning family
and medical leave was regularly working thirty-five hours or more per
week and who is on family and medical leave ((for less than thirty-five
hours but at least eight hours in a week, the individual's weekly
benefit shall be .025 times the maximum weekly benefit times the number
of hours of family leave taken in the week. Benefits are not payable
for less than eight hours of family leave taken in a week.)) the weekly benefit shall be a minimum of two hundred fifty
dollars per week.
(3) For an individual who at the time of beginning family leave was
regularly working less than thirty-five hours per week, the department
shall calculate a prorated schedule for a weekly benefit amount and a
minimum number of hours of family leave that must be taken in a week
for benefits to be payable, with the prorated schedule based on the
amounts and the calculations specified under subsections (1) and (2) of
this section.
(4)
(3) In no case shall benefits be payable for less than eight hours
of family and medical leave taken in a week.
(4) If an individual discloses that he or she owes child support
obligations under RCW 49.86.030 and the department determines that the
individual is eligible for benefits, the department shall notify the
applicable state or local child support enforcement agency and deduct
and withhold an amount from benefits in a manner consistent with RCW
50.40.050.
(((5) If the internal revenue service determines that family leave
insurance benefits under this chapter are subject to federal income tax
and an individual elects to have federal income tax deducted and
withheld from benefits, the department shall deduct and withhold the
amount specified in the federal internal revenue code in a manner
consistent with RCW 49.86.070.))
Sec. 8 RCW 49.86.070 and 2007 c 357 s 9 are each amended to read
as follows:
(((1))) If the internal revenue service determines that family and
medical leave insurance benefits under this chapter are subject to
federal income tax, the department must advise an individual filing a
((new)) claim for family and medical leave insurance benefits, at the
time of filing such claim, that((:)) the internal revenue service has determined that benefits are
subject to federal income tax((
(a);)) and requirements exist pertaining to estimated tax
payments((
(b);)).
(c) The individual may elect to have federal income tax deducted
and withheld from the individual's payment of benefits at the amount
specified in the federal internal revenue code; and
(d) The individual is permitted to change a previously elected
withholding status.
(2) Amounts deducted and withheld from benefits must remain in the
family leave insurance account until transferred to the federal taxing
authority as a payment of income tax.
(3) The director shall follow all procedures specified by the
federal internal revenue service pertaining to the deducting and
withholding of income tax
Sec. 9 RCW 49.86.080 and 2007 c 357 s 10 are each amended to read
as follows:
(1) If family and medical leave insurance benefits are paid
erroneously or as a result of willful misrepresentation, or if a claim
for family and medical leave benefits is rejected after benefits are
paid, RCW 51.32.240 shall apply, except that appeals are governed by
RCW 49.86.120, penalties are paid into the family and medical leave
insurance account, and the department shall seek repayment of benefits
from the recipient. The department shall issue an overpayment
assessment setting forth the reasons for, and the amount of, the
overpayment.
(2) Whenever such an overpayment assessment becomes conclusive and
final, the department may file with the superior court clerk of any
county within the state a warrant in the amount of the overpayment
assessment plus a filing fee under RCW 36.18.012(10). However, the
department must first give at least twenty days' notice by certified
mail return receipt requested, to the individual's last known address
of the intended action.
(a) The clerk of the county where the warrant is filed shall
immediately designate a superior court cause number for the warrant.
The clerk shall cause to be entered in the judgment docket under the
superior court cause number assigned to the warrant the name of the
person or persons mentioned in the warrant, the amount of the
overpayment assessment, and the date when the warrant was filed.
(b) The amount of the warrant as docketed shall become a lien upon
the title to, and any interest in, all real and personal property of
the person or persons against whom the warrant is issued, the same as
a judgment in a civil case duly docketed in the office of the clerk.
A warrant so docketed shall be sufficient to support the issuance of
writs of execution and writs of garnishment in favor of the state in
the manner provided by law for a civil judgment.
(c) A copy of the warrant shall be mailed to the person or persons
mentioned in the warrant by certified mail to the person's last known
address within ten days of its filing with the clerk.
Sec. 10 RCW 49.86.090 and 2007 c 357 s 11 are each amended to
read as follows:
(1) During a period in which an individual receives family and
medical leave insurance benefits or earns waiting period credits under
this chapter, the individual is entitled to family and medical leave
and, at the established ending date of leave, to be restored to a
position of employment with the employer from whom leave was taken.
(2) The individual entitled to leave under this section shall be
restored to a position of employment in the same manner as an employee
entitled to leave under chapter 49.78 RCW is restored to a position of
employment, as specified in RCW 49.78.280.
(3) This section applies only to an individual if:
(a) The employer from whom the individual takes family and medical
leave employs ((more than)) twenty-five or more employees for each
working day during each of twenty or more calendar workweeks in the
current or preceding calendar year within seventy-five miles of the
employee's worksite; and
(b) The individual has been employed for at least twelve months by
that employer, and for at least one thousand two hundred fifty hours of
service with that employer during the previous twelve-month period.
(4) This section shall be enforced by the department of labor and
industries as provided in chapter 49.78 RCW.
Sec. 11 RCW 49.86.100 and 2007 c 357 s 12 are each amended to
read as follows:
If spouses or ((people involved in a legal relationship established
under chapter 26.60 RCW who are)) domestic partners entitled to leave
under this chapter are employed by the same employer, the employer may
require that spouses or ((people involved in such a relationship
governed by Title 26 RCW)) domestic partners not take such leave
concurrently if such leave is taken: (1) For the birth or placement of
a child; or (2) for a parent's serious health condition.
Sec. 12 RCW 49.86.110 and 2007 c 357 s 13 are each amended to
read as follows:
(1) Beginning January 1, 2015, an employer of individuals not
covered by this chapter or a self-employed person, including a sole
proprietor, partner, or joint venturer, may elect coverage under this
chapter for all individuals in its employ for an initial period of not
less than three years or a subsequent period of not less than one year
immediately following another period of coverage. The employer or
self-employed person must file a notice of election in writing with the
((director)) commissioner, as required by the department. The election
becomes effective on the date of filing the notice with the
commissioner.
(2) An employer or self-employed person who has elected coverage
may withdraw from coverage within thirty days after the end of the
three-year period of coverage, or at such other times as the
((director)) commissioner may prescribe by rule, by filing ((written))
a notice of withdrawal in writing with the ((director)) commissioner,
such withdrawal to take effect not sooner than thirty days after filing
the notice with the commissioner. Within five days of filing written
notice of the withdrawal with the ((director)) commissioner, an
employer must provide written notice of the withdrawal to all
individuals in the employer's employ.
(3) The department may cancel elective coverage if the employer or
self-employed person fails to make required payments or reports. The
department may collect due and unpaid premiums and may levy an
additional premium for the remainder of the period of coverage. The
cancellation shall be effective no later than thirty days from the date
of the notice in writing advising the employer or self-employed person
of the cancellation. Within five days of receiving written notice of
the cancellation from the commissioner, an employer must provide
written notice of the cancellation to all individuals in the employer's
employ.
(4) In developing and implementing the requirements of this
section, the department shall adopt government efficiencies to improve
administration and reduce costs. These efficiencies may include, but
are not limited to, requiring that payments be made in a manner and at
intervals unique to the elective coverage program.
NEW SECTION. Sec. 13 A new section is added to chapter 49.86 RCW
to read as follows:
(1) Beginning January 1, 2014, for each individual, each employer
shall pay a premium to the department based on the amount of wages
subject to tax under the federal social security wage base. Each
employer may deduct from the pay of each individual the full amount
that the employer is required to pay for the individual.
(2) Payments shall be made in the manner and at such intervals as
provided in this chapter and directed by the department, and shall be
deposited in the family and medical leave insurance account. In
developing and implementing the requirements of this section and
section 14 of this act, the department shall adopt government
efficiencies to improve administration and reduce costs. These
efficiencies shall include combined reporting and payment, with a
single return, of premiums under this section and contributions under
chapter 50.24 RCW. In the payment of premiums, a fractional part of a
cent shall be disregarded unless it amounts to one-half cent or more,
in which case it shall be increased to one cent.
(3) By September 1, 2014, and by each subsequent September 1st, the
commissioner shall adjust the amount of the premium to ensure that the
amount is the lowest rate necessary to pay family and medical leave
insurance benefits and administrative costs, and maintain actuarial
solvency in accordance with recognized insurance principles, of the
family and medical leave insurance program on a current basis, and to
repay loaned funds from the supplemental pension fund, if any, as
required in section 23 of this act. The adjusted amount of the premium
takes effect for the calendar year beginning after the relevant
September 1st.
NEW SECTION. Sec. 14 A new section is added to chapter 49.86 RCW
to read as follows:
(1) In the form and at the times specified in this chapter and by
the commissioner, an employer shall make reports, furnish information,
and make payments of premiums as required by section 13 of this act to
the department. In developing and implementing the requirements of
this section and section 13 of this act, the department shall adopt
government efficiencies to improve administration and reduce costs.
These efficiencies shall include combined reporting and payment, with
a single return, of premiums under this section and contributions under
chapter 50.24 RCW. If the employer is a temporary help company that
provides employees on a temporary basis to its customers, the temporary
help company is considered the employer for purposes of this section.
However, if the temporary help company fails to remit the required
premiums, the customer to whom the employees were provided is liable
for paying the premiums.
(2)(a) An employer must keep at his or her place of business a
record of employment from which the information needed by the
department for purposes of this chapter may be obtained. This record
shall at all times be open to the inspection of the commissioner or
department employees designated by the commissioner.
(b) Information obtained from employer records under this chapter
is confidential and not open to public inspection, other than to public
employees in the performance of their official duties. However, an
interested party shall be supplied with information from employer
records to the extent necessary for the proper presentation of the case
in question. An employer may authorize inspection of its records by
written consent.
(3) The requirements relating to the assessment and collection of
family and medical leave insurance premiums are the same as the
requirements relating to the assessment and collection of contributions
under Title 50 RCW, including but not limited to penalties, interest,
and department lien rights and collection remedies. These requirements
apply to:
(a) An employer that fails under this chapter to make the required
reports, or fails to remit the full amount of the premiums when due;
(b) An employer that willfully makes a false statement or
misrepresentation regarding a material fact, or willfully fails to
report a material fact, to avoid making the required reports or
remitting the full amount of the premiums when due under this chapter;
(c) A successor in the manner specified in RCW 50.24.210; and
(d) An officer, member, or owner having control or supervision of
payment and/or reporting of family and medical leave insurance, or who
is charged with the responsibility for the filing of returns, in the
manner specified in RCW 50.24.230.
(4) Notwithstanding subsection (3) of this section, appeals are
governed by RCW 49.86.120.
Sec. 15 RCW 49.86.120 and 2007 c 357 s 14 are each amended to
read as follows:
(1) Except as provided in section 16(1) of this act, a person
((aggrieved by a decision of the department under this chapter must))
may file a notice of appeal ((with the director)) from any
determination or redetermination made by the department with the
commissioner, by mail or personally, within thirty days after the date
on which a copy of the department's decision was ((communicated to))
served on the person. Upon receipt of the notice of appeal, the
((director)) commissioner shall request the assignment of an
administrative law judge in accordance with chapter 34.05 RCW to
conduct a hearing and issue a proposed decision and order. The hearing
shall be conducted in accordance with chapter 34.05 RCW.
(2) The administrative law judge's proposed decision and order
shall be final and not subject to further appeal unless, within thirty
days after the decision is ((communicated to)) served on the interested
parties, ((a party petitions for review by the director. If the
director's review is timely requested, the director may order
additional evidence by the administrative law judge. On the basis of
the evidence before the administrative law judge and such additional
evidence as the director may order to be taken, the director shall
render a decision affirming, modifying, or setting aside the
administrative law judge's decision. The director's decision becomes
final and not subject to further appeal unless, within thirty days
after the decision is communicated to the interested parties,)) a party
files a petition for judicial review as provided in chapter 34.05 RCW.
((The director is a party to any judicial action involving the
director's decision and shall be represented in the action by the
attorney general.))
(3) If, upon ((administrative or)) judicial review, the final
decision of the applicable department is reversed or modified, ((the
administrative law judge or)) the court in its discretion may award
reasonable attorneys' fees and costs to the prevailing party.
Attorneys' fees and costs owed by the department, if any, are payable
from the family and medical leave insurance account.
NEW SECTION. Sec. 16 A new section is added to chapter 49.86 RCW
to read as follows:
(1) A determination of amount of benefits potentially payable
issued under this chapter shall not serve as a basis for appeal under
RCW 49.86.120. However, the determination shall be subject to request
by the individual on family and medical leave for redetermination by
the commissioner at any time within one year from the date of delivery
or mailing of such determination, or any redetermination thereof. A
redetermination shall be furnished to the individual in writing and
provide the basis for appeal under RCW 49.86.120.
(2) A determination of denial of benefits shall become final, in
the absence of timely appeal therefrom. The commissioner may
redetermine such determinations at any time within one year from
delivery or mailing to correct an error in identity, omission of fact,
or misapplication of law with respect to the facts.
(3) A determination of allowance of benefits shall become final, in
the absence of a timely appeal therefrom. The commissioner may
redetermine such allowance at any time within two years following the
application year in which such allowance was made in order to recover
any benefits for which recovery is provided under RCW 49.86.080.
(4) A redetermination may be made at any time: (a) To conform to
a final court decision applicable to either an initial determination or
a determination of denial or allowance of benefits; (b) in the event of
a back pay award or settlement affecting the allowance of benefits; or
(c) in the case of misrepresentation or willful failure to report a
material fact. Written notice of any such redetermination shall be
promptly given by mail or delivered to such interested parties as were
notified of the initial determination or determination of denial or
allowance of benefits and any new interested party or parties who,
pursuant to such regulation as the commissioner may prescribe, would be
an interested party.
Sec. 17 RCW 49.86.130 and 2007 c 357 s 15 are each amended to
read as follows:
(1) An employer, temporary help company, employment agency,
employee organization, or other person may not discharge, expel, or
otherwise discriminate against ((a person)) an individual because he or
she has filed or communicated to the employer an intent to file a
claim, a complaint, or an appeal, or has testified or is about to
testify or has assisted in any proceeding, under this chapter, at any
time, including during the waiting period described in RCW 49.86.050
and the period in which the ((person)) individual receives family and
medical leave insurance benefits under this chapter. ((This section
shall be enforced as provided in RCW 51.48.025.))
(2) Any individual who believes that he or she has been discharged
or otherwise discriminated against by an employer in violation of this
section may file a complaint with the commissioner alleging
discrimination within ninety days of the date of the alleged violation.
Upon receipt of such complaint, the commissioner shall cause an
investigation to be made as the commissioner deems appropriate. Within
ninety days of the receipt of a complaint filed under this section, the
commissioner shall notify the complainant of his or her determination.
If, upon such investigation, it is determined that this section has
been violated, the commissioner shall bring an action in the superior
court of the county in which the violation is alleged to have occurred.
(3) If the commissioner determines that this section has not been
violated, the individual may institute the action on his or her own
behalf.
(4) In any action brought under this section, the superior court
shall have jurisdiction, for cause shown, to restrain violations of
subsection (1) of this section and to order all appropriate relief
including rehiring or reinstatement of the individual with back pay.
Sec. 18 RCW 49.86.140 and 2007 c 357 s 16 are each amended to
read as follows:
(1)(((a) Leave taken under this chapter must be taken concurrently
with any leave taken)) If an individual is entitled to employment
protection under this chapter and under the federal family and medical
leave act of 1993 (Act Feb. 5, 1993, P.L. 103-3, 107 Stat. 6) ((or
under)), chapter 49.78 RCW, or other applicable federal, state, or
local law, the individual is entitled to employment protection under
the other applicable law most favorable to the individual.
(((b) An)) (2) Except as provided in this subsection, if an
individual is entitled to family and medical leave under this chapter
and under the federal family and medical leave act, chapter 49.78 RCW,
or other applicable federal, state, or local law, the employer may
require that leave ((taken)) under this chapter be taken concurrently
((or otherwise coordinated)) with leave ((allowed)) under ((the terms
of a collective bargaining agreement or employer policy, as applicable,
for the birth or placement of a child)) other applicable laws. The
employer must give individuals in its employ written notice of this
requirement. An individual may not increase the duration of his or her
entitlement to leave from employment by tacking on leave under this
chapter to leave under other applicable laws. Leave from employment
under this chapter is in addition to leave from employment during which
benefits are paid or are payable under Title 51 RCW or other applicable
federal or state industrial insurance laws.
(3) In any week in which an individual is earning waiting period
credits or receiving benefits under chapter 7.68 RCW, Title 50 or 51
RCW, or other applicable federal or state crime victims' compensation,
unemployment compensation, industrial insurance, or disability
insurance laws, the individual is disqualified from receiving family
and medical leave insurance benefits under this chapter.
(4)(a) Except as provided in this section, this chapter does not
prohibit an employer from negotiating a collective bargaining agreement
or adopting employer policies, as applicable, to coordinate existing
benefits with leave from employment and wage replacement benefits
required under this chapter.
(((2)(a))) (b) This chapter does not diminish an employer's
obligation to comply with a collective bargaining agreement or employer
policy, as applicable, that provides greater employment protection,
leave ((for the birth or placement of a child)) from employment, or
wage replacement benefits than under this chapter.
(((b))) (c) An individual's ((right to leave)) rights to employment
protection, leave from employment, and wage replacement benefits under
this chapter may not be diminished by a collective bargaining agreement
entered into or renewed or an employer policy adopted or retained after
((July 1, 2008)) the effective date of this section. Any agreement by
an individual to waive his or her rights under this chapter is void as
against public policy.
(d) If an employer provides wage replacement benefits to an
individual while on family and medical leave through disability
insurance or any other means, the individual may elect whether first to
receive such benefits or receive family and medical leave insurance
benefits under this chapter. An individual may not be required to
receive the individual's wage replacement benefits, if any, before
receiving family and medical leave insurance benefits under this
chapter.
Sec. 19 RCW 49.86.160 and 2007 c 357 s 18 are each amended to
read as follows:
The ((director)) commissioner may adopt rules as necessary to
implement this chapter. In adopting rules, the ((director))
commissioner shall maintain consistency with the rules adopted to
implement the federal family and medical leave act, and chapter 49.78
RCW, to the extent such rules are not in conflict with this chapter.
The provisions of RCW 34.05.328 do not apply to rules adopted by the
commissioner to implement RCW 49.86.060(1) or section 13(3) of this
act.
Sec. 20 RCW 49.86.170 and 2009 c 4 s 905 are each amended to read
as follows:
The family and medical leave insurance account is created in the
custody of the state treasurer. All receipts from the premiums imposed
under this act must be deposited in the account. Expenditures from the
account may be used only for the purposes of the family and medical
leave insurance program. Only the ((director of the department of
labor and industries)) commissioner or the ((director's))
commissioner's designee may authorize expenditures from the account.
The account is subject to the allotment procedures under chapter 43.88
RCW. An appropriation is required for administrative expenses, but not
for benefit payments. ((During the 2007-2009 fiscal biennium, the
legislature may transfer from the family leave insurance account to the
state general fund such amounts as reflect the excess fund balance of
the account.))
Sec. 21 RCW 49.86.180 and 2007 c 357 s 20 are each amended to
read as follows:
Whenever, in the judgment of the state investment board, there
shall be in the family and medical leave insurance account funds in
excess of that amount deemed by the state investment board to be
sufficient to meet the current expenditures properly payable therefrom,
the state investment board shall have full power to invest, reinvest,
manage, contract, or sell or exchange investments acquired with such
excess funds in the manner prescribed by RCW 43.84.150, and not
otherwise.
Sec. 22 RCW 43.79A.040 and 2011 1st sp.s. c 37 s 603 are each
amended to read as follows:
(1) Money in the treasurer's trust fund may be deposited, invested,
and reinvested by the state treasurer in accordance with RCW 43.84.080
in the same manner and to the same extent as if the money were in the
state treasury, and may be commingled with moneys in the state treasury
for cash management and cash balance purposes.
(2) All income received from investment of the treasurer's trust
fund must be set aside in an account in the treasury trust fund to be
known as the investment income account.
(3) The investment income account may be utilized for the payment
of purchased banking services on behalf of treasurer's trust funds
including, but not limited to, depository, safekeeping, and
disbursement functions for the state treasurer or affected state
agencies. The investment income account is subject in all respects to
chapter 43.88 RCW, but no appropriation is required for payments to
financial institutions. Payments must occur prior to distribution of
earnings set forth in subsection (4) of this section.
(4)(a) Monthly, the state treasurer must distribute the earnings
credited to the investment income account to the state general fund
except under (b), (c), and (d) of this subsection.
(b) The following accounts and funds must receive their
proportionate share of earnings based upon each account's or fund's
average daily balance for the period: The Washington promise
scholarship account, the college savings program account, the
Washington advanced college tuition payment program account, the
accessible communities account, the community and technical college
innovation account, the agricultural local fund, the American Indian
scholarship endowment fund, the foster care scholarship endowment fund,
the foster care endowed scholarship trust fund, the students with
dependents grant account, the basic health plan self-insurance reserve
account, the contract harvesting revolving account, the Washington
state combined fund drive account, the commemorative works account, the
county enhanced 911 excise tax account, the Washington international
exchange scholarship endowment fund, the toll collection account, the
developmental disabilities endowment trust fund, the energy account,
the fair fund, the family and medical leave insurance account, the food
animal veterinarian conditional scholarship account, the fruit and
vegetable inspection account, the future teachers conditional
scholarship account, the game farm alternative account, the GET ready
for math and science scholarship account, the Washington global health
technologies and product development account, the grain inspection
revolving fund, the industrial insurance rainy day fund, the juvenile
accountability incentive account, the law enforcement officers' and
firefighters' plan 2 expense fund, the local tourism promotion account,
the pilotage account, the produce railcar pool account, the regional
transportation investment district account, the rural rehabilitation
account, the stadium and exhibition center account, the youth athletic
facility account, the self-insurance revolving fund, the sulfur dioxide
abatement account, the children's trust fund, the Washington horse
racing commission Washington bred owners' bonus fund and breeder awards
account, the Washington horse racing commission class C purse fund
account, the individual development account program account, the
Washington horse racing commission operating account (earnings from the
Washington horse racing commission operating account must be credited
to the Washington horse racing commission class C purse fund account),
the life sciences discovery fund, the Washington state heritage center
account, the reduced cigarette ignition propensity account, and the
reading achievement account.
(c) The following accounts and funds must receive eighty percent of
their proportionate share of earnings based upon each account's or
fund's average daily balance for the period: The advanced right-of-way
revolving fund, the advanced environmental mitigation revolving
account, the federal narcotics asset forfeitures account, the high
occupancy vehicle account, the local rail service assistance account,
and the miscellaneous transportation programs account.
(d) Any state agency that has independent authority over accounts
or funds not statutorily required to be held in the custody of the
state treasurer that deposits funds into a fund or account in the
custody of the state treasurer pursuant to an agreement with the office
of the state treasurer shall receive its proportionate share of
earnings based upon each account's or fund's average daily balance for
the period.
(5) In conformance with Article II, section 37 of the state
Constitution, no trust accounts or funds shall be allocated earnings
without the specific affirmative directive of this section.
NEW SECTION. Sec. 23 A new section is added to chapter 49.86 RCW
to read as follows:
If necessary to ensure that money is available in the family and
medical leave insurance account for the initial administration of the
family and medical leave insurance program, the director of labor and
industries may, from time to time before July 1, 2014, lend funds from
the supplemental pension fund to the family and medical leave insurance
account. These loaned funds may be expended solely for the initial
administration of the program under this chapter. The commissioner
shall repay the supplemental pension fund, plus its proportionate share
of earnings from investment of moneys in the supplemental pension fund
during the loan period, from the family and medical leave insurance
account within three years of the date of the loan. This section
expires October 1, 2016.
Sec. 24 RCW 49.86.210 and 2011 1st sp.s. c 25 s 2 are each
amended to read as follows:
Beginning ((September 1, 2016)) December 1, 2014, the department
shall report to the legislature by ((September)) December 1st of each
year on projected and actual program participation, premium rates, fund
balances, benefits paid, information on program participants, costs of
providing benefits, and outreach efforts.
Sec. 25 RCW 50.29.021 and 2011 c 4 s 3 are each amended to read
as follows:
(1) This section applies to benefits charged to the experience
rating accounts of employers for claims that have an effective date on
or after January 4, 2004.
(2)(a) An experience rating account shall be established and
maintained for each employer, except employers as described in RCW
50.44.010, 50.44.030, and 50.50.030 who have properly elected to make
payments in lieu of contributions, taxable local government employers
as described in RCW 50.44.035, and those employers who are required to
make payments in lieu of contributions, based on existing records of
the employment security department.
(b) Benefits paid to an eligible individual shall be charged to the
experience rating accounts of each of such individual's employers
during the individual's base year in the same ratio that the wages paid
by each employer to the individual during the base year bear to the
wages paid by all employers to that individual during that base year,
except as otherwise provided in this section.
(c) When the eligible individual's separating employer is a covered
contribution paying base year employer, benefits paid to the eligible
individual shall be charged to the experience rating account of only
the individual's separating employer if the individual qualifies for
benefits under:
(i) RCW 50.20.050 (1)(b)(i) or (2)(b)(i), as applicable, and became
unemployed after having worked and earned wages in the bona fide work;
or
(ii) RCW 50.20.050 (1)(b) (v) through (x) or (2)(b) (v) through
(x).
(3) The legislature finds that certain benefit payments, in whole
or in part, should not be charged to the experience rating accounts of
employers except those employers described in RCW 50.44.010, 50.44.030,
and 50.50.030 who have properly elected to make payments in lieu of
contributions, taxable local government employers described in RCW
50.44.035, and those employers who are required to make payments in
lieu of contributions, as follows:
(a) Benefits paid to any individual later determined to be
ineligible shall not be charged to the experience rating account of any
contribution paying employer. However, when a benefit claim becomes
invalid due to an amendment or adjustment of a report where the
employer failed to report or inaccurately reported hours worked or
remuneration paid, or both, all benefits paid will be charged to the
experience rating account of the contribution paying employer or
employers that originally filed the incomplete or inaccurate report or
reports. An employer who reimburses the trust fund for benefits paid
to workers and who fails to report or inaccurately reported hours
worked or remuneration paid, or both, shall reimburse the trust fund
for all benefits paid that are based on the originally filed incomplete
or inaccurate report or reports.
(b) Benefits paid to an individual filing under the provisions of
chapter 50.06 RCW shall not be charged to the experience rating account
of any contribution paying employer only if:
(i) The individual files under RCW 50.06.020(1) after receiving
crime victims' compensation for a disability resulting from a nonwork-related occurrence; or
(ii) The individual files under RCW 50.06.020(2).
(c) Benefits paid which represent the state's share of benefits
payable as extended benefits defined under RCW 50.22.010(6) shall not
be charged to the experience rating account of any contribution paying
employer.
(d) In the case of individuals who requalify for benefits under RCW
50.20.050 or 50.20.060, benefits based on wage credits earned prior to
the disqualifying separation shall not be charged to the experience
rating account of the contribution paying employer from whom that
separation took place.
(e) Benefits paid to an individual who qualifies for benefits under
RCW 50.20.050 (1)(b) (iv) or (xi) or (2)(b) (iv) or (xi), as
applicable, shall not be charged to the experience rating account of
any contribution paying employer.
(f) With respect to claims with an effective date on or after the
first Sunday following April 22, 2005, benefits paid that exceed the
benefits that would have been paid if the weekly benefit amount for the
claim had been determined as one percent of the total wages paid in the
individual's base year shall not be charged to the experience rating
account of any contribution paying employer. This subsection (3)(f)
does not apply to the calculation of contribution rates under RCW
50.29.025 for rate year 2010 and thereafter.
(g) The forty-five dollar increase paid as part of an individual's
weekly benefit amount as provided in RCW 50.20.1201 and the twenty-five
dollar increase paid as part of an individual's weekly benefit amount
as provided in RCW 50.20.1202 shall not be charged to the experience
rating account of any contribution paying employer.
(h) With respect to claims where the minimum amount payable weekly
is increased to one hundred fifty-five dollars pursuant to RCW
50.20.1201(3), benefits paid that exceed the benefits that would have
been paid if the minimum amount payable weekly had been calculated
pursuant to RCW 50.20.120 shall not be charged to the experience rating
account of any contribution paying employer.
(i) Training benefits paid to an individual under RCW 50.22.155
shall not be charged to the experience rating account of any
contribution paying employer.
(4)(a) A contribution paying base year employer, not otherwise
eligible for relief of charges for benefits under this section, may
receive such relief if the benefit charges result from payment to an
individual who:
(i) Last left the employ of such employer voluntarily for reasons
not attributable to the employer;
(ii) Was discharged for misconduct or gross misconduct connected
with his or her work not a result of inability to meet the minimum job
requirements;
(iii) Is unemployed as a result of closure or severe curtailment of
operation at the employer's plant, building, worksite, or other
facility. This closure must be for reasons directly attributable to a
catastrophic occurrence such as fire, flood, or other natural disaster;
(iv) Continues to be employed on a regularly scheduled permanent
part-time basis by a base year employer and who at some time during the
base year was concurrently employed and subsequently separated from at
least one other base year employer. Benefit charge relief ceases when
the employment relationship between the employer requesting relief and
the claimant is terminated. This subsection does not apply to shared
work employers under chapter ((50.06 [50.60])) 50.60 RCW; ((or))
(v) Was hired to replace an employee who is a member of the
military reserves or National Guard and was called to federal active
military service by the president of the United States and is
subsequently laid off when that employee is reemployed by their
employer upon release from active duty within the time provided for
reemployment in RCW 73.16.035; or
(vi) Worked for an employer for six weeks or less, and was laid off
at the end of temporary employment when that individual temporarily
replaced a permanent employee receiving family and medical leave
insurance benefits under chapter 49.86 RCW, and the layoff is due to
the return of that permanent employee. This subsection applies to
claims with an effective date on or after July 4, 2015.
(b) The employer requesting relief of charges under this subsection
must request relief in writing within thirty days following mailing to
the last known address of the notification of the valid initial
determination of such claim, stating the date and reason for the
separation or the circumstances of continued employment. The
commissioner, upon investigation of the request, shall determine
whether relief should be granted.
Sec. 26 RCW 50.29.021 and 2011 c 4 s 14 are each amended to read
as follows:
(1) This section applies to benefits charged to the experience
rating accounts of employers for claims that have an effective date on
or after January 4, 2004.
(2)(a) An experience rating account shall be established and
maintained for each employer, except employers as described in RCW
50.44.010, 50.44.030, and 50.50.030 who have properly elected to make
payments in lieu of contributions, taxable local government employers
as described in RCW 50.44.035, and those employers who are required to
make payments in lieu of contributions, based on existing records of
the employment security department.
(b) Benefits paid to an eligible individual shall be charged to the
experience rating accounts of each of such individual's employers
during the individual's base year in the same ratio that the wages paid
by each employer to the individual during the base year bear to the
wages paid by all employers to that individual during that base year,
except as otherwise provided in this section.
(c) When the eligible individual's separating employer is a covered
contribution paying base year employer, benefits paid to the eligible
individual shall be charged to the experience rating account of only
the individual's separating employer if the individual qualifies for
benefits under:
(i) RCW 50.20.050 (1)(b)(i) or (2)(b)(i), as applicable, and became
unemployed after having worked and earned wages in the bona fide work;
or
(ii) RCW 50.20.050 (1)(b) (v) through (x) or (2)(b) (v) through
(x).
(3) The legislature finds that certain benefit payments, in whole
or in part, should not be charged to the experience rating accounts of
employers except those employers described in RCW 50.44.010, 50.44.030,
and 50.50.030 who have properly elected to make payments in lieu of
contributions, taxable local government employers described in RCW
50.44.035, and those employers who are required to make payments in
lieu of contributions, as follows:
(a) Benefits paid to any individual later determined to be
ineligible shall not be charged to the experience rating account of any
contribution paying employer. However, when a benefit claim becomes
invalid due to an amendment or adjustment of a report where the
employer failed to report or inaccurately reported hours worked or
remuneration paid, or both, all benefits paid will be charged to the
experience rating account of the contribution paying employer or
employers that originally filed the incomplete or inaccurate report or
reports. An employer who reimburses the trust fund for benefits paid
to workers and who fails to report or inaccurately reported hours
worked or remuneration paid, or both, shall reimburse the trust fund
for all benefits paid that are based on the originally filed incomplete
or inaccurate report or reports.
(b) Benefits paid to an individual filing under the provisions of
chapter 50.06 RCW shall not be charged to the experience rating account
of any contribution paying employer only if:
(i) The individual files under RCW 50.06.020(1) after receiving
crime victims' compensation for a disability resulting from a nonwork-related occurrence; or
(ii) The individual files under RCW 50.06.020(2).
(c) Benefits paid which represent the state's share of benefits
payable as extended benefits defined under RCW 50.22.010(6) shall not
be charged to the experience rating account of any contribution paying
employer.
(d) In the case of individuals who requalify for benefits under RCW
50.20.050 or 50.20.060, benefits based on wage credits earned prior to
the disqualifying separation shall not be charged to the experience
rating account of the contribution paying employer from whom that
separation took place.
(e) Benefits paid to an individual who qualifies for benefits under
RCW 50.20.050 (1)(b) (iv) or (xi) or (2)(b) (iv) or (xi), as
applicable, shall not be charged to the experience rating account of
any contribution paying employer.
(f) With respect to claims with an effective date on or after the
first Sunday following April 22, 2005, benefits paid that exceed the
benefits that would have been paid if the weekly benefit amount for the
claim had been determined as one percent of the total wages paid in the
individual's base year shall not be charged to the experience rating
account of any contribution paying employer. This subsection (3)(f)
does not apply to the calculation of contribution rates under RCW
50.29.025 for rate year 2010 and thereafter.
(g) The forty-five dollar increase paid as part of an individual's
weekly benefit amount as provided in RCW 50.20.1201 and the twenty-five
dollar increase paid as part of an individual's weekly benefit amount
as provided in RCW 50.20.1202 shall not be charged to the experience
rating account of any contribution paying employer.
(h) With respect to claims where the minimum amount payable weekly
is increased to one hundred fifty-five dollars pursuant to RCW
50.20.1201(3), benefits paid that exceed the benefits that would have
been paid if the minimum amount payable weekly had been calculated
pursuant to RCW 50.20.120 shall not be charged to the experience rating
account of any contribution paying employer.
(i) Upon approval of an individual's training benefits plan
submitted in accordance with RCW 50.22.155(2), an individual is
considered enrolled in training, and regular benefits beginning with
the week of approval shall not be charged to the experience rating
account of any contribution paying employer.
(j) Training benefits paid to an individual under RCW 50.22.155
shall not be charged to the experience rating account of any
contribution paying employer.
(4)(a) A contribution paying base year employer, not otherwise
eligible for relief of charges for benefits under this section, may
receive such relief if the benefit charges result from payment to an
individual who:
(i) Last left the employ of such employer voluntarily for reasons
not attributable to the employer;
(ii) Was discharged for misconduct or gross misconduct connected
with his or her work not a result of inability to meet the minimum job
requirements;
(iii) Is unemployed as a result of closure or severe curtailment of
operation at the employer's plant, building, worksite, or other
facility. This closure must be for reasons directly attributable to a
catastrophic occurrence such as fire, flood, or other natural disaster;
(iv) Continues to be employed on a regularly scheduled permanent
part-time basis by a base year employer and who at some time during the
base year was concurrently employed and subsequently separated from at
least one other base year employer. Benefit charge relief ceases when
the employment relationship between the employer requesting relief and
the claimant is terminated. This subsection does not apply to shared
work employers under chapter ((50.06 [50.60])) 50.60 RCW; ((or))
(v) Was hired to replace an employee who is a member of the
military reserves or National Guard and was called to federal active
military service by the president of the United States and is
subsequently laid off when that employee is reemployed by their
employer upon release from active duty within the time provided for
reemployment in RCW 73.16.035; or
(vi) Worked for an employer for six weeks or less, and was laid off
at the end of temporary employment when that individual temporarily
replaced a permanent employee receiving family and medical leave
insurance benefits under chapter 49.86 RCW, and the layoff is due to
the return of that permanent employee. This subsection applies to
claims with an effective date on or after July 4, 2015.
(b) The employer requesting relief of charges under this subsection
must request relief in writing within thirty days following mailing to
the last known address of the notification of the valid initial
determination of such claim, stating the date and reason for the
separation or the circumstances of continued employment. The
commissioner, upon investigation of the request, shall determine
whether relief should be granted.
NEW SECTION. Sec. 27 A new section is added to chapter 82.04 RCW
to read as follows:
In computing the tax imposed under this chapter, a credit is
allowed for an employer that hires a replacement worker to replace an
employee who has taken family and medical leave under chapter 49.86
RCW. The credit is equal to one thousand two hundred dollars for each
replacement worker hired on or after July 1, 2015. To qualify for the
credit, fewer than fifty employees must be employed by the employer at
the time the replacement worker is hired. The credit may not exceed
the tax otherwise due under this chapter for the tax reporting period.
Unused credit may not be carried over to be credited against taxes
incurred in subsequent tax reporting periods. No refunds may be
granted for credits under this section.
Sec. 28 RCW 34.05.328 and 2011 c 298 s 21 and 2011 c 149 s 1 are
each reenacted and amended to read as follows:
(1) Before adopting a rule described in subsection (5) of this
section, an agency must:
(a) Clearly state in detail the general goals and specific
objectives of the statute that the rule implements;
(b) Determine that the rule is needed to achieve the general goals
and specific objectives stated under (a) of this subsection, and
analyze alternatives to rule making and the consequences of not
adopting the rule;
(c) Provide notification in the notice of proposed rule making
under RCW 34.05.320 that a preliminary cost-benefit analysis is
available. The preliminary cost-benefit analysis must fulfill the
requirements of the cost-benefit analysis under (d) of this subsection.
If the agency files a supplemental notice under RCW 34.05.340, the
supplemental notice must include notification that a revised
preliminary cost-benefit analysis is available. A final cost-benefit
analysis must be available when the rule is adopted under RCW
34.05.360;
(d) Determine that the probable benefits of the rule are greater
than its probable costs, taking into account both the qualitative and
quantitative benefits and costs and the specific directives of the
statute being implemented;
(e) Determine, after considering alternative versions of the rule
and the analysis required under (b), (c), and (d) of this subsection,
that the rule being adopted is the least burdensome alternative for
those required to comply with it that will achieve the general goals
and specific objectives stated under (a) of this subsection;
(f) Determine that the rule does not require those to whom it
applies to take an action that violates requirements of another federal
or state law;
(g) Determine that the rule does not impose more stringent
performance requirements on private entities than on public entities
unless required to do so by federal or state law;
(h) Determine if the rule differs from any federal regulation or
statute applicable to the same activity or subject matter and, if so,
determine that the difference is justified by the following:
(i) A state statute that explicitly allows the agency to differ
from federal standards; or
(ii) Substantial evidence that the difference is necessary to
achieve the general goals and specific objectives stated under (a) of
this subsection; and
(i) Coordinate the rule, to the maximum extent practicable, with
other federal, state, and local laws applicable to the same activity or
subject matter.
(2) In making its determinations pursuant to subsection (1)(b)
through (h) of this section, the agency must place in the rule-making
file documentation of sufficient quantity and quality so as to persuade
a reasonable person that the determinations are justified.
(3) Before adopting rules described in subsection (5) of this
section, an agency must place in the rule-making file a rule
implementation plan for rules filed under each adopting order. The
plan must describe how the agency intends to:
(a) Implement and enforce the rule, including a description of the
resources the agency intends to use;
(b) Inform and educate affected persons about the rule;
(c) Promote and assist voluntary compliance; and
(d) Evaluate whether the rule achieves the purpose for which it was
adopted, including, to the maximum extent practicable, the use of
interim milestones to assess progress and the use of objectively
measurable outcomes.
(4) After adopting a rule described in subsection (5) of this
section regulating the same activity or subject matter as another
provision of federal or state law, an agency must do all of the
following:
(a) Coordinate implementation and enforcement of the rule with the
other federal and state entities regulating the same activity or
subject matter by making every effort to do one or more of the
following:
(i) Deferring to the other entity;
(ii) Designating a lead agency; or
(iii) Entering into an agreement with the other entities specifying
how the agency and entities will coordinate implementation and
enforcement.
If the agency is unable to comply with this subsection (4)(a), the
agency must report to the legislature pursuant to (b) of this
subsection;
(b) Report to the joint administrative rules review committee:
(i) The existence of any overlap or duplication of other federal or
state laws, any differences from federal law, and any known overlap,
duplication, or conflict with local laws; and
(ii) Make recommendations for any legislation that may be necessary
to eliminate or mitigate any adverse effects of such overlap,
duplication, or difference.
(5)(a) Except as provided in (b) of this subsection, this section
applies to:
(i) Significant legislative rules of the departments of ecology,
labor and industries, health, revenue, social and health services, and
natural resources, the employment security department, the forest
practices board, the office of the insurance commissioner, and to the
legislative rules of the department of fish and wildlife implementing
chapter 77.55 RCW; and
(ii) Any rule of any agency, if this section is voluntarily made
applicable to the rule by the agency, or is made applicable to the rule
by a majority vote of the joint administrative rules review committee
within forty-five days of receiving the notice of proposed rule making
under RCW 34.05.320.
(b) This section does not apply to:
(i) Emergency rules adopted under RCW 34.05.350;
(ii) Rules relating only to internal governmental operations that
are not subject to violation by a nongovernment party;
(iii) Rules adopting or incorporating by reference without material
change federal statutes or regulations, Washington state statutes,
rules of other Washington state agencies, shoreline master programs
other than those programs governing shorelines of statewide
significance, or, as referenced by Washington state law, national
consensus codes that generally establish industry standards, if the
material adopted or incorporated regulates the same subject matter and
conduct as the adopting or incorporating rule;
(iv) Rules that only correct typographical errors, make address or
name changes, or clarify language of a rule without changing its
effect;
(v) Rules the content of which is explicitly and specifically
dictated by statute;
(vi) Rules that set or adjust fees under the authority of RCW
19.02.075 or that set or adjust fees or rates pursuant to legislative
standards, including fees set or adjusted under the authority of RCW
19.80.045;
(vii) Rules of the department of social and health services
relating only to client medical or financial eligibility and rules
concerning liability for care of dependents; ((or))
(viii) Rules of the department of revenue that adopt a uniform
expiration date for reseller permits as authorized in RCW 82.32.780 and
82.32.783; or
(ix) Rules adopted by the commissioner of the employment security
department to implement RCW 49.86.060(1) or section 13(3) of this act.
(c) For purposes of this subsection:
(i) A "procedural rule" is a rule that adopts, amends, or repeals
(A) any procedure, practice, or requirement relating to any agency
hearings; (B) any filing or related process requirement for making
application to an agency for a license or permit; or (C) any policy
statement pertaining to the consistent internal operations of an
agency.
(ii) An "interpretive rule" is a rule, the violation of which does
not subject a person to a penalty or sanction, that sets forth the
agency's interpretation of statutory provisions it administers.
(iii) A "significant legislative rule" is a rule other than a
procedural or interpretive rule that (A) adopts substantive provisions
of law pursuant to delegated legislative authority, the violation of
which subjects a violator of such rule to a penalty or sanction; (B)
establishes, alters, or revokes any qualification or standard for the
issuance, suspension, or revocation of a license or permit; or (C)
adopts a new, or makes significant amendments to, a policy or
regulatory program.
(d) In the notice of proposed rule making under RCW 34.05.320, an
agency must state whether this section applies to the proposed rule
pursuant to (a)(i) of this subsection, or if the agency will apply this
section voluntarily.
(6) By January 31, 1996, and by January 31st of each even-numbered
year thereafter, the office of regulatory assistance, after consulting
with state agencies, counties, and cities, and business, labor, and
environmental organizations, must report to the governor and the
legislature regarding the effects of this section on the regulatory
system in this state. The report must document:
(a) The rules proposed to which this section applied and to the
extent possible, how compliance with this section affected the
substance of the rule, if any, that the agency ultimately adopted;
(b) The costs incurred by state agencies in complying with this
section;
(c) Any legal action maintained based upon the alleged failure of
any agency to comply with this section, the costs to the state of such
action, and the result;
(d) The extent to which this section has adversely affected the
capacity of agencies to fulfill their legislatively prescribed mission;
(e) The extent to which this section has improved the acceptability
of state rules to those regulated; and
(f) Any other information considered by the office of financial
management to be useful in evaluating the effect of this section.
NEW SECTION. Sec. 29 RCW 49.86.040 (Disqualification from
benefits) and 2007 c 357 s 6 are each repealed.
NEW SECTION. Sec. 30 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. 31 A new section is added to chapter 49.86 RCW
to read as follows:
This chapter may be known and cited as the family security act.
NEW SECTION. Sec. 32 Section 25 of this act expires July 1,
2012.
NEW SECTION. Sec. 33 Section 26 of this act takes effect July 1,
2012.