PROPOSED RULES
Original Notice.
Preproposal statement of inquiry was filed as WSR 97-11-086.
Title of Rule: Suitable work and availability for work requirements for unemployment insurance claimants with disabilities.
Purpose: The proposed rules will clarify the department's policies regarding eligibility for unemployment benefits of disabled claimants who are unable to work full time or who leave work due to a disabling condition.
Statutory Authority for Adoption: RCW 50.12.010, 50.12.040, 50.20.010.
Statute Being Implemented: RCW 50.20.100.
Summary: The proposed rules define the circumstances under which less than full-time work is suitable for claimants with disabilities. They clarify that claimants who leave work because of disabling condition will not be found unavailable for work if they notified the employer about the disability and the employer fails to inform them of alternative suitable work. The rules also provide that pregnancy-related disabilities will be treated the same as other disabilities.
Reasons Supporting Proposal: These rules are proposed as a settlement agreement in the case of Gachen and Booser, representatives of a class, vs. ESD.
Name of Agency Personnel Responsible for Drafting: Juanita Myers, 212 Maple Park, Olympia, (360) 902-9665; Implementation and Enforcement: Dale Ziegler, 212 Maple Park, Olympia, (360) 902-9303.
Name of Proponent: Employment Security Department, governmental.
Rule is not necessitated by federal law, federal or state court decision.
Explanation of Rule, its Purpose, and Anticipated Effects: Proposed WAC 192-170-050 clarifies that the department will consider risks to the claimant and any unborn child when determining whether work is suitable. In addition, the rule outlines the circumstances under which the department may determine that less than full-time work is suitable for claimants with disabilities. Proposed WAC 192-170-060 provides that a claimant who leaves work because of a disability will not be found unavailable for work under certain circumstances.
The purpose of both rules is to clarify the department's policies regarding benefits for claimants with disabilities, and to ensure that these policies are in compliance with state and federal disability law. We anticipate the effect of these rules will be greater consistency in decision-making within the department.
Proposal Changes the Following Existing Rules: WAC 192-16-021 is repealed.
A small business economic impact statement has been prepared under chapter 19.85 RCW.
Analysis: WAC 192-170-050 would permit the department to determine that less than full-time work is suitable for disabled claimants under certain specific circumstances. This is consistent with the requirements under the Americans with Disabilities Act that employers and their agents provide reasonable accommodation to disabled workers.
A claimant who leaves work due to a disability or illness is considered to have left work voluntarily. The department may determine that the separation was with good cause if the requirements of RCW 50.20.050 (2)(b) are met.
WAC 192-170-060 provides that a claimant who leaves work due to a disability will not be found unavailable for work if certain conditions are met. These include notifying the employer of the disability and resulting work restrictions. The employer then may determine if there are other jobs for which the claimant might be qualified. This fulfills the requirement that the claimant take all reasonable precautions to preserve employment.
RCW 50.29.020(2) and WAC 192-12-405 authorize employers to request relief from benefit charges resulting from the payment of benefits to individuals. Benefit charge relief may be granted when an individual leaves work for personal reasons, including illness or disability of the employee. The department does not enforce state or federal discrimination law. The determination that an employer is eligible for benefit charge relief does not depend on a finding that the employer complied with requirements to reasonably accommodate a disabled worker. An employer will be eligible for relief of benefit charges when a claimant is separated from work due to disability or illness.
The exception is for some cases in which an individual leaves work due to a pregnancy-related disability. State regulation (WAC 162-30-020) requires many employers to provide a woman with a leave of absence for the period of time she is sick or temporarily disabled because of pregnancy or childbirth, and to allow her to return to the same or similar job at the conclusion of the disability period. In such case, there is no job separation and the employer would not be eligible for relief of benefit charges.
We estimate that the cost of the proposed regulations will be minimal because:
| • | WAC 162-30-020 does not apply to employers with fewer than eight employees (see RCW 49.60.040(3)); |
| • | When a job separation occurs because of an employee's disability or illness, the employer may request relief of benefit charges; |
| • | The proposed rule, WAC 192-170-060, applies only when a worker has notified the employer of the disabling condition and the employer does not offer alternative suitable work; |
| • | To be eligible for unemployment benefits, the individual must meet all other eligibility criteria in Title 50 RCW, including: |
| • | The requirement to be able to work, available for work, and actively seeking suitable work as required by RCW 50.20.010(3); |
| • | Meeting the weekly job search requirements contained in RCW 50.20.240 and WAC 192-180-010. |
| • | Costs would only be incurred for: |
| • | Employers of 8 or more workers who are unable to offer alternative work to a pregnant woman, and the woman is on a leave of absence from work; OR |
| • | Employers of fewer than 8 workers who voluntarily (including labor-management agreements) provide the woman with a leave of absence. |
30 - Small employers (less than $50,000 in taxable wages per year)
10 - Mid-size employers ($50,000 to $250,000 per year)
10 - Large employers ($250,000+ per year)
We estimate the employer's tax rate will increase an average of six rate classes in these circumstances, with a net cost of:
| Small employers: | $50,000 x 1.1% = $550 per employee |
| $550 x 30 employees = $16,500 total per year | |
| Mid-size employers: | $250,000 x 0.8% = $2000 per employee |
| $2000 x 10 employees = $20,000 total per year | |
| Large employers: | $250,000 x 0.8% = $2000 per employee |
| $2000 x 10 employees = $20,000 total per year |
A copy of the statement may be obtained by writing to Juanita Myers, UI Policy, Employment Security Department, P.O. Box 9046, Olympia, WA 98506, phone (360) 902-9665, fax (360) 902-9799.
Section 201, chapter 403, Laws of 1995, applies to this rule adoption. The proposed regulations constitute "significant legislative" rules because (a) they establish or alter the qualifications or standards for determining an individual's eligibility for unemployment benefits, and (b) they make significant amendments to a policy or regulatory program.
Hearing Location: Employment Security Department, Public Affairs Conference Room, 2nd Floor, 212 Maple Park, Olympia, WA, on November 2, 1999, at 10:00 a.m.
Assistance for Persons with Disabilities: Contact Karen LaFreniere by October 29, 1999, TDD (360) 902-9589, or (360) 902-9582.
Submit Written Comments to: Barney Hilliard, Rules Coordinator, Employment Security Department, P.O. Box 9046, Olympia, WA 98504-9046, fax (360) 438-3226, by October 29, 1999.
Date of Intended Adoption: November 5, 1999.
September 21, 1999
Dale Ziegler
Assistant Commissioner
CHAPTER 192-170AVAILABILITY TO ACCEPT WORK
NEW SECTION
WAC 192-170-050
Suitable work factors--RCW 50.20.100.
(1) Physical fitness.
(a) In addition to the considerations listed in RCW 50.20.100 and RCW 50.20.110, the department will consider whether you have a disability which prevents you from performing the normal or expected duties of the job without a substantial risk to your health or safety.
(b) The department may determine in individual circumstances that less than full-time work is suitable if:
(i) You have a disability that substantially limits a major life activity;
(ii) The disability prevents you from working the number of hours that are customary to the occupation;
(iii) You are actively seeking work for the occupation(s) and hours you have the ability to perform; and
(iv) The restriction on the number of hours you can work does not substantially limit your employment prospects within your general area.
(c) Disabilities resulting from pregnancy will be treated the same as other medical disabilities, except that the department will also consider the risk to your pregnancy when deciding whether work is suitable.
(d) The department will require medical verification of your disability and the risk to your health and safety of performing certain tasks or engaging in certain occupations, including any restrictions placed on your availability for full-time work.
(2) Definition of general area. "General area" means an individual's labor market area and includes the geographic area within which an individual would customarily seek work in a given occupation.
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(1) Generally a claimant is expected to make reasonable attempts to preserve employment before leaving work, including requesting other work from the employer. However, in the case of a disabled claimant, the employer is in the best position to know what work is available that the claimant has the ability to perform. Once the employer is aware of the claimant's disability, the employer has an affirmative duty to inform the claimant of job opportunities for which the claimant might be qualified. See Dean v. Metropolitan Seattle, 104 Wn.2d 627, 637-38, 708 P.2d 393 (1985). An employer who fails to do so may not later claim that suitable work was available had the claimant requested it. In this instance, the burden is on the employer to offer other work, not on the claimant to seek it.
(2) If you (the claimant) leave work because of a disability, you will not be found unavailable for work for doing so if:
(a) You notified your employer that you have a disability as defined in WAC 192-170-050 (1)(b), and
(b) Your disability and resulting work restrictions are supported by medical verification, the terms of a collective bargaining agreement, or individual employment contract, and
(c) Your employer did not provide you with alternative suitable work. This means modifying your regular job to eliminate duties which pose a risk to your health or safety or to your pregnancy, or informing you about other suitable work within the company or business.
(3) If you are on a voluntary leave of absence from your employer because of a pregnancy-related disability, you will not be found unavailable for work if the conditions of subsection (2) above have been met.
(4) If you leave work because of a disability, the department will provide you with a directive listing the job search requirements you must meet in order to maintain your eligibility for benefits. Such job search requirements will not be more stringent than those imposed upon claimants who are not disabled.
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The following section of the Washington Administrative Code is repealed:
| WAC 192-16-021 | Interpretative regulations--Suitable work factors--RCW 50.20.100 |