EMPLOYMENT SECURITY DEPARTMENT

[Filed May 4, 2020, 8:12 a.m.]

Preproposal statement of inquiry was filed as WSR 19-21-043.

Title of Rule and Other Identifying Information: Leave of absence, WAC 192-170-080 (1)(a).

Hearing Location(s): On June 11, 2020, at 9:00 a.m.

Telephone conference, call 360-407-3790.

When prompted for the Conference ID number, press 51750 and then the # key.

Date of Intended Adoption: June 15, 2020.

Submit Written Comments to: Joshua Dye, P.O. Box 9046, Olympia, WA 98507-9046, email rules@esd.wa.gov, fax 844-652-7096, by June 10, 2020.

Assistance for Persons with Disabilities: Contact Teresa Eckstein, phone 360-507-9890, fax 360-586-4600, TTY relay 711, email teckstein@esd.wa.gov, by June 3, 2020.

Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: WAC 192-170-080 (1)(a) was determined to be "invalid" by the commissioner of the employment security department (ESD) under In re Ausburn, Empl. Sec. Comm'r Dec.2d 971 (2011). In that decision, the commissioner determined the rule was in "direct conflict" with RCW 50.04.310. Consequently, the department is repealing WAC 192-170-080 (1)(a). The remainder of WAC 192-170-080 will remain in effect.

Reasons Supporting Proposal: WAC 192-170-080 (1)(a) should be repealed so the public does not mistakenly rely on an invalid rule.

Statutory Authority for Adoption: RCW 50.12.010 and 50.12.040 provide general rule-making authority to ESD, including the authority to repeal rules.

Statute Being Implemented: RCW 50.04.310(1).

Rule is necessary because of state court decision, In re Ausburn, Empl. Sec. Comm'r Dec.2d 971 (2011).

Name of Proponent: ESD, governmental.

Name of Agency Personnel Responsible for Drafting: Scott Michael, Olympia, 360-890-3448; Implementation and Enforcement: Julie Lord, Olympia, 360-890-9579.

A school district fiscal impact statement is not required under RCW 28A.305.135.

A cost-benefit analysis is required under RCW 34.05.328. A preliminary cost-benefit analysis may be obtained by contacting Joshua Dye, P.O. Box 9046, Olympia, WA 98507-9046, phone 360-890-3472, email Rules@esd.wa.gov, https://esd.wa.gov/newsroom/ui-rule-making/.

The proposed rule does not impose more-than-minor costs on businesses. Following is a summary of the agency's analysis showing how costs were calculated. When considering the total claims spread across the state-wide employer base, the proposed rule would have a negligible impact on total costs for each employer.

AMENDATORY SECTION(Amending WSR 10-11-046, filed 5/12/10, effective 6/12/10)

WAC 192-170-080Leave of absence.

(1) A leave of absence is an absence from work mutually and voluntarily agreed upon by you and your employer or a collective bargaining agent, or leave to which you are entitled under federal or state law, where the employer-employee relationship is continued and you will be reinstated in the same or similar job when the leave expires.

(a) ((If you are on a leave of absence, you are not unemployed and thus not eligible for benefits.

(b))) If you choose not to return to work when the leave of absence ends, the separation is treated as a voluntary quit. The separation date will be the first working day after the leave expires.

(((c)))(b) If no job is available with the employer when the leave of absence ends, the separation is treated as a layoff due to a lack of work.

(((d)))(c) If you have been on medical leave and are released for work by your medical provider, but your employer refuses to permit you to return to work, you are considered to be laid off due to a lack of work and potentially eligible for benefits.

(2) A leave of absence does not exist if the employer offers you only a preference for rehire or a promise of a job if work exists at the end of the leave. An employee-initiated leave that only provides fringe benefits during the leave or preferential status for reemployment is not a leave of absence but a voluntary quit.

(3) A temporary or indefinite disciplinary suspension from work by the employer is not a leave of absence. The department will treat this as a suspension.