BILL REQ. #:  S-0698.1 

Read first time 01/24/13.   Referred to Committee on Commerce & Labor.

     AN ACT Relating to implementing family and medical leave insurance; 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, 49.86.210, and 50.29.021; reenacting and amending RCW 43.79A.040 and 34.05.328; adding new sections to chapter 49.86 RCW; and adding a new section to chapter 82.04 RCW.

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)) "health care provider," "parent," "serious health condition," and "spouse" mean the same as in RCW 49.78.020.
     (4) "Commissioner" means the commissioner of the department.
     (5) "Department" means the ((state agency to be directed to administer the family leave insurance program.
     (5) "Director" means the director of 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, or pursuant to section 13 of this act, a designated person.
     (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) "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.))
     (14) "Wages" means the same as "wages" for the purpose of payment of contributions in RCW 50.04.320(1).

NEW SECTION.  Sec. 3   A new section is added to chapter 49.86 RCW to read as follows:
     The definitions of "employer" and "employment" in section 1 of the railroad unemployment insurance act (45 U.S.C. Sec. 351) also apply throughout this chapter unless the context clearly requires otherwise.

Sec. 4   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;
     (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. 5   RCW 49.86.030 and 2011 1st sp.s. c 25 s 1 are each amended to read as follows:
     (1) Beginning October 1, 2015, 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 each week in which the individual is on family leave, 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))) (5) and section 16 of this act;
     (((5))) (e) Discloses whether or not he or she owes child support obligations as defined in RCW 50.40.050; ((and
     (6) Documents that he or she has provided)) (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
     (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.
     (2)(a) With respect to leave for the birth or placement of a child or a family member's serious health condition, family and medical leave insurance benefits are payable beginning October 1, 2015.
     (b) With respect to leave for an individual's serious health condition, family and medical leave insurance benefits are payable beginning October 1, 2016.

NEW SECTION.  Sec. 6   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. 7   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)) twelve weeks for leave for a family member's serious health condition and for the birth or placement of a child, plus twelve 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. 8   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)) An individual's 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)) an amount equal to five and two-tenths percent of the average quarterly wages of the individual's total wages during the two quarters of the individual's qualifying year in which such total wages were highest.
     (2) ((If an individual who at the time of beginning family leave was regularly working thirty-five hours or more per week is on family 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.)) Beginning October 1, 2015, the maximum weekly benefit amount shall be one thousand dollars. By September 30, 2015, and by each subsequent September 30th, the department shall calculate to the nearest dollar adjusted maximum weekly benefit amounts to account for inflation using the consumer price index for urban wage earners and clerical workers, CPI-W, or a successor index, for the twelve completed calendar months before each September 30th as calculated by the United States department of labor. The adjusted maximum weekly benefit amounts calculated under this subsection take effect on the following January 1st.
     (3) Benefits are not payable for less than eight hours of family and medical leave taken in a 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) 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. 9   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((:
     (a))) the internal revenue service has determined that benefits are subject to federal income tax((;
     (b))) and requirements exist pertaining to estimated tax payments((;
     (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. 10   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. 11   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)) six months by that employer, and for at least ((one thousand two)) six hundred fifty hours of service with that employer during the previous ((twelve)) six-month period.
     (4) This section shall be enforced by the department of labor and industries as provided in chapter 49.78 RCW.

Sec. 12   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.

NEW SECTION.  Sec. 13   A new section is added to chapter 49.86 RCW to read as follows:
     If an individual does not have a spouse or domestic partner, the individual may designate one person for whom the employee will care if the designated person has a serious health condition. An employer may establish a process for an individual to make such a designation within thirty days of the individual's date of hire. Thereafter, the employer must permit the individual to make or change such a designation, as applicable, on an annual basis. If an individual's employer establishes such a process, the individual must make such a designation using the employer's process. If an individual's employer does not establish such a process, the individual may make such a designation when filing a claim for benefits.

Sec. 14   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)) adopt 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. 15   A new section is added to chapter 49.86 RCW to read as follows:
     (1) Beginning July 1, 2014, for each individual, each employer shall pay a premium to the department based on the amount of the employee's wages. Each employer may deduct from the pay of each individual one-half of the full amount that the employer is required to pay for the individual.
     (2)(a) Beginning July 1, 2014, and ending December 31, 2015, each employer shall pay a premium to the department of two-tenths of one percent of the employee's wages.
     (b) Beginning January 1, 2016, and ending December 31, 2016, each employer shall pay a premium to the department of four-tenths of one percent of the employee's wages.
     (c) By September 1, 2016, 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 on a current basis, and maintain actuarial solvency in accordance with recognized insurance principles. The adjusted amount of the premium takes effect for the calendar year beginning after the relevant September 1st.
     (3) 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 16 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.

NEW SECTION.  Sec. 16   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 15 of this act to the department. In developing and implementing the requirements of this section and section 15 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. 17   RCW 49.86.120 and 2007 c 357 s 14 are each amended to read as follows:
     (1) Except as provided in section 18(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 the prevailing party, other than the department, 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. 18   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 rule as the commissioner may adopt, would be an interested party.

Sec. 19   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. 20   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. 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 ((leave for the birth or placement of a child)) employment protection, leave 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. 21   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 15(3) of this act.

Sec. 22   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 chapter 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. 23   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. 24   RCW 43.79A.040 and 2012 c 198 s 8, 2012 c 196 s 6, 2012 c 187 s 13, and 2012 c 114 s 3 are each reenacted and 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 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 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 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 multiagency permitting team 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 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, ((and)) the reduced cigarette ignition propensity account, the center for childhood deafness and hearing loss account, ((and)) the school for the blind account, the Millersylvania park trust fund, the public employees' and retirees' insurance reserve fund, and the radiation perpetual maintenance fund.
     (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.

Sec. 25   RCW 49.86.210 and 2011 1st sp.s. c 25 s 2 are each amended to read as follows:
     Beginning ((September)) December 1, 2016, 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. 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 fifteen 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 5, 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 with fewer than fifty 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. The credit is allowed during the first twenty-four months following the hire date of the employer's first employee. The credit is equal to the full amount of premium paid to the department for an individual, less any amount deducted from the pay of the individual. 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. The total amount of all credits allowed under this section for an employer may not exceed one thousand dollars. 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 of the employment security department to implement RCW 49.86.060(1) or section 15(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   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.