[Filed July 6, 2022, 9:00 a.m.]
Title of Rule and Other Identifying Information: WAC 357-04-125 Must an employee provide proof of being fully vaccinated with one of the authorized COVID-19 vaccines as a condition of employment?, 357-19-373 What notification must an employer give a nonpermanent appointee?, 357-19-413 Must a nonpermanent employee comply with the COVID-19 vaccine requirements set forth in WAC 357-04-125?, 357-46-165 When may an employer separate an employee in accordance with WAC 357-46-160?, 357-46-195 Can an employer separate an employee for nondisciplinary reasons?, and 357-58-190 What must be addressed in agency's WMS recruitment and selection policy and/or procedure?
Hearing Location(s): On August 11, 2022, at 8:30 a.m., at office of financial management (OFM), audio conference only, Dial-in 888-285-8919, Enter pin 8101730, Code (if asked) 415.
Date of Intended Adoption: August 18, 2022.
Submit Written Comments to: Brandy Chinn, OFM, P.O. Box 47500, Olympia, WA 98501, email email@example.com, fax 360-586-4694, by August 4, 2022.
Assistance for Persons with Disabilities: Contact OFM, TTY 711 or 1-800-833-6384, by August 4, 2022.
Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: To place new provisions in Title 357 WAC requiring a state employee to become fully vaccinated, and an eligible candidate for a state position to provide proof of an up-to-date vaccination, or be granted an exemption and approved for an accommodation due to a disability or sincerely held religious belief that prevents them from receiving the COVID-19 vaccine; and requiring employers to separate an employee for failure to comply with the COVID-19 vaccination requirements.
Reasons Supporting Proposal: The worldwide outbreak of COVID-19 and the effects of its extreme risk of person-to-person transmission throughout the United States and Washington state significantly impacts the life and health of all Washingtonians, as well as the economy of Washington state, and is a public disaster that affects life, health, property, or the public peace. COVID-19 vaccines are effective in reducing infection and serious disease, and widespread vaccination is the primary means we have as a state to protect the health and safety of our workforce. As an employer, there is an obligation to maintain a safe and healthy work environment for all state employees. The vaccination requirements set forth in these proposed rules will help establish and maintain a healthy and safe work environment to protect the welfare of all state employees.
Statutory Authority for Adoption: Chapter 41.06
Statute Being Implemented: Chapter 41.06
Rule is not necessitated by federal law, federal or state court decision.
Name of Proponent: Governmental.
Name of Agency Personnel Responsible for Drafting, Implementation, and Enforcement: Brandy Chinn, 128 10th Avenue, Olympia, WA 98501, 360-878-2901.
A school district fiscal impact statement is not required under RCW 28A.305.135
A cost-benefit analysis is not required under RCW 34.05.328
. Rules are related to internal government operations and are not subject to violation by a nongovernmental party. See RCW 34.05.328
(5)(b)(ii) for exemption.
This rule proposal, or portions of the proposal, is exempt from requirements of the Regulatory Fairness Act because the proposal:
Is exempt under RCW 19.85.025
(3) as the rules relate only to internal governmental operations that are not subject to violation by a nongovernment party.
July 6, 2022
Assistant Director of Legal
and Legislative Affairs
WAC 357-04-125Must an employee provide proof of being fully vaccinated with one of the authorized COVID-19 vaccines as a condition of employment?
As a condition of employment, an employee must become fully vaccinated or request an exemption due to a disability and/or medical condition or if the requirement conflicts with an employee's sincerely held religious belief, practice, or observance. If the exemption is granted, there must be an approved accommodation. An employee who fails to meet this condition of employment will be subject to nondisciplinary separation in accordance with WAC 357-46-195, or separation in accordance with WAC 357-19-410, or a disability separation in accordance with WAC 357-46-160.
For the purposes of this section, a person is "fully vaccinated" against COVID-19 two weeks after they have received the second dose in a two-dose series of a COVID-19 vaccine or a single-dose COVID-19 vaccine authorized for emergency use, licensed, or otherwise authorized or approved by the U.S. Food and Drug Administration or listed for emergency use or otherwise approved by the World Health Organization.
WAC 357-16-197Must an eligible candidate provide proof of being up-to-date with one of the authorized COVID-19 vaccines?
After a conditional offer of employment is made, an eligible candidate must provide proof of being up-to-date with one of the authorized COVID-19 vaccines or request an exemption due to a disability and/or medical condition or if the requirement conflicts with an employee's sincerely held religious belief, practice, or observance. If the exemption is granted, there must be an approved accommodation. For the purpose of this section, a person is "up-to-date" with their COVID-19 vaccination when they have received all doses in the primary series and all boosters recommended for them by the U.S. Centers for Disease Control Advisory Committee on Immunization Practices, when they become eligible.
AMENDATORY SECTION(Amending WSR 21-14-042 and 22-01-153, filed 6/30/21 and 12/15/21, effective 7/1/22)
WAC 357-19-373What notification must an employer give a nonpermanent appointee?
(1) Upon appointment, all nonpermanent appointees must be notified in writing of the conditions of their appointment and/or upon any subsequent change to the conditions of their appointment.
(2) The written notification must at a minimum contain the following information:
(a) The reason for the nonpermanent appointment in accordance with WAC 357-19-360;
(b) The hours of work and the base salary;
(c) The anticipated short-term duration or sporadic nature of the appointment;
(d) A statement regarding the receipt or nonreceipt of benefits. If the employee is to receive benefits, the statement shall include which benefits are to be received; and
(e) The right to request remedial action as provided in WAC 357-19-425.
(3) After a conditional offer of employment is made, an eligible candidate must provide proof of being up-to-date with COVID-19 vaccination in accordance with WAC 357-16-197.
WAC 357-19-413Must a nonpermanent employee comply with the COVID-19 vaccine requirements set forth in WAC 357-04-125?
A nonpermanent employee must comply with the COVID-19 vaccination requirements set forth in WAC 357-04-125. A nonpermanent employee who fails to comply must be separated in accordance with WAC 357-19-410.
AMENDATORY SECTION(Amending WSR 04-18-114, filed 9/1/04, effective 7/1/05)
WAC 357-46-165When may an employer separate an employee in accordance with WAC 357-46-160?
An employer may separate an employee due to disability when any of the following circumstances exist:
(1) The employer is unable to reasonably accommodate the employee.
(2) The employer has medical documentation of the employee's inability to work in any capacity.
(3) The employee requests separation due to disability and the employer has medical information which documents that the employee cannot perform the essential functions of the employee's position or class.
(4) The employer must separate a permanent employee from employment for failure to comply with the COVID-19 vaccination requirements set forth in WAC 357-04-125 where an exemption was approved due to a disability or medical condition and the employer is unable to reasonably accommodate the employee.
AMENDATORY SECTION(Amending WSR 04-18-114, filed 9/1/04, effective 7/1/05)
WAC 357-46-195Can an employer separate an employee for nondisciplinary reasons?
An employer may separate a permanent employee from a position or from employment for nondisciplinary reasons such as failure to comply with the conditions of employment which may or may not have existed at the time of initial appointment or failure to authorize or to pass a background check required by the position.
The employer may consider other employment options such as transfer or voluntary demotion in lieu of separation.
The employer must separate a permanent employee from employment for nondisciplinary reasons for failure to comply with the COVID-19 vaccination requirements set forth in WAC 357-04-125.
AMENDATORY SECTION(Amending WSR 22-12-074, filed 5/27/22, effective 7/1/22)
WAC 357-58-190What must be addressed in agency's WMS recruitment and selection policy and/or procedure?
An agency's WMS recruitment and selection policy must:
(1) Provide for the ability to consider any or all qualified candidates for hire, promotion, or internal movement;
(2) Ensure that hiring decisions are fair, objective, and based on the evaluation of leadership and other job related competencies and characteristics required for successful job performance and performance management;
(3) Support workforce diversity and affirmative action goals;
(4) Consider the career development of the agency's employees and other state employees;
(5) Consider making appointments from a veterans placement program;
(6) Ensure that hiring decisions are not based on patronage or political affiliation;
(7) Ensure compliance with state and federal laws relating to employee selection and nondiscrimination;
(8) Encourage decentralized and regional administration of the recruitment and selection processes when it is appropriate for the agency;
(9) Ensure compliance with requirements governing wage and salary information in accordance with RCW 49.58.100
, WAC 357-16-017, 357-16-215, and 357-16-220;
(10) Ensure compliance with the vaccination requirements in accordance with WAC 357-04-125 and 357-16-197.