EMPLOYMENT SECURITY DEPARTMENT
[Filed July 13, 2020, 10:21 a.m.]
Preproposal statement of inquiry was filed as WSR 20-08-129.
Title of Rule and Other Identifying Information: Eligibility for relief from benefit charges from the COVID-19 Unemployment Account, implementing section 5, chapter 7, Laws of 2020.
Hearing Location(s): On August 27, 2020, at 10:00 a.m.
Telephone conference, Call 360-407-3790. When prompted for the Conference ID number, press 51750 and then the # key. Hearing is being held remotely due to the COVID-19 pandemic.
Date of Intended Adoption: September 4, 2020.
Submit Written Comments to: Joshua Dye, P.O. Box 9046, Olympia, WA 98507-9046, email email@example.com, fax 844-652-7096, by August 26, 2020.
Assistance for Persons with Disabilities: Contact Teresa Eckstein, phone 360-507-9890, fax 360-586-4600, TTY relay 711, email firstname.lastname@example.org [email@example.com], by August 20, 2020.
Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: In the 2020 regular session, the legislature passed EHB 2965 (chapter 7, Laws of 2020), which, among other things, creates a COVID-19 unemployment account and appropriates funds into the account for the purposes of reducing specified benefit charges to eligible employers. Rules are necessary in order to establish which employers are eligible to apply for benefit charge reduction, which benefit charges are eligible to be reduced, and the process for how employers can apply for benefit charge reduction.
Reasons Supporting Proposal: EHB 2965 (chapter 7, Laws of 2020) directs the employment security department (ESD) to adopt rules regarding applications for reimbursements from the COVID-19 Unemployment Account.
Statutory Authority for Adoption: EHB 2965, section 5, chapter 7, Laws of 2020.
Statute Being Implemented: EHB 2965, section 5, chapter 7, Laws of 2020.
Rule is not necessitated by federal law, federal or state court decision.
Name of Proponent: ESD, governmental.
Name of Agency Personnel Responsible for Drafting: Scott Michael, Olympia, 360-890-3448; Implementation and Enforcement: Julie Lord, Olympia, 360-890-3635.
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
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. The rule imposes no costs on employers. Instead, the rules result in financial benefits to small businesses through lower unemployment tax rates in future years. The only cost to small businesses is the requirement to submit an application, however, this requirement is expressly dictated by statute (section 5(1), chapter 7, Laws of 2020).
July 13, 2020
WAC 192-320-066Eligibility for relief from benefit charges from the COVID-19 unemployment account—Section 5, chapter 7, Laws of 2020.
(1) Application for relief. The department will consider an employer's application to have a portion of unemployment benefits paid to an approved employee paid by the COVID-19 unemployment account instead of charged to its experience rating account if the employer:
(a) Submits an application on a form approved by the department.
(i) Electronic application forms can be accessed on the department's website.
(ii) Paper application forms can be accessed by either downloading them from the department's website or calling the accounts management center and asking for a copy of the form to be sent via mail.
(b) Timely submits the application.
(i) An electronically submitted form is submitted timely if the department's information technology system receives the form on or before 11:59 p.m. on September 30, 2020.
(ii) A form sent via mail is submitted timely if it has a postmark date of September 30, 2020.
(c) Attests that the information provided on the application is true and accurate.
(i) Employers must retain documents sufficient to substantiate the information provided on the application.
(ii) After the application is submitted, the department may ask employers for documents substantiating the information provided on the application.
(iii) The department may deny relief of benefit charges from the COVID-19 unemployment account if the department requests documentation from an employer and the employer fails to provide documentation sufficient to substantiate the information provided on the application.
(2) Definition of approved employee. For purposes of this section, an "approved employee" is an employee who:
(a) Became temporarily unemployed as a direct or indirect consequence of COVID-19. For purposes of (a) of this subsection, an employee became temporarily unemployed as a direct or indirect consequence of COVID-19 if either:
(i) The individual's employer was required to close or severely curtail operations due to a state or federal executive order adopted in order to prevent the spread of COVID-19; or
(ii) The individual left employment due to a request from a medical professional, local health official, or the secretary of health in order to be isolated or quarantined as a consequence of COVID-19, even if the employee or the employee's immediate family member was not actually diagnosed with COVID-19.
(b) Spent at least one week of their unemployment described in (a) of this subsection on standby pursuant to WAC 192-110-015; and
(c)(i) Prior to September 26, 2020, worked at least four weeks with their employer in suitable work with a rate of weekly pay at least ninety percent of the rate of weekly pay the employee had prior to becoming unemployed as described in (a) of this subsection.
(ii) Worked less than four weeks with their employer if, after working at least one day, the employee:
(A) Was discharged for misconduct; or
(B) Voluntarily quit for reasons not attributable to the employer.
(3) Benefits not eligible for relief. In calculating the amount of benefits eligible for full or partial payment by the COVID-19 unemployment account, the department will not include:
(a) Benefits paid on or before February 29, 2020;
(b) Benefits charged to the third quarter of 2020 or after;
(c) Benefits subject to federal reimbursement or payment under Public Law 116-136, Title II, Subtitle A (Relief for Workers Affected by Coronavirus Act) or other federal law;
(d) Benefits for which the department granted relief of benefits charges pursuant to RCW 50.29.021
(e) Benefits that the employer would have been eligible to receive relief of benefit charges pursuant to RCW 50.29.021
but for which the employer failed to timely request relief; or
(f) Benefits paid for weeks where the approved employee was not on standby pursuant to WAC 192-110-015.
(4) Ineligible employers. The following employers are not eligible to apply for relief of benefit charges under this section:
(a) Employers described in RCW 50.44.010
, and 50.50.030
who have properly elected to make payments in lieu of contributions;
(b) Employers who are required to make payments in lieu of contributions;
(c) Taxable local government employers as described in RCW 50.44.035
(d) Any employer that has not submitted all quarterly reports for the second quarter of 2020 and all prior quarters by September 30, 2020; and
(e) Any employer that has not paid all contributions, penalties and interest due by September 30, 2020, or has not entered into a department-approved deferred payment contract by September 30, 2020.
(5) Appeal rights.
(a) If the department denies all or part of an employer's application for relief of benefit charges from the COVID-19 unemployment account, the department will provide the employer with the reasons for the denial.
(b) An employer may not appeal the denial of an application for relief of benefit charges from the COVID-19 unemployment account.
(c) Independent of the right to request relief of charges from the COVID-19 unemployment account pursuant to this section, an employer still retains the right to request relief of the underlying benefit charges pursuant to WAC 192-320-065 and appeal any denial of that request under WAC 192-04-060.