Original Notice.

Preproposal statement of inquiry was filed as WSR 97-11-086.

Title of Rule: Suitable work, availability, and job search 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 a disabling condition will not be found unavailable for work if they notified the employer about the disability. Pregnancy-related disabilities will be treated the same as other disabilities. For benefit charge purposes, a leave of absence due to a disability will be considered a separation not attributable to the employer.

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: Annette Copeland, 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: The proposed rules provide that an individual who can only work part-time because of a disability would be allowed to look for part-time work and still receive unemployment benefits. The department can request verification from a physician of the disability and any resulting restrictions on the individual's availability for full-time work. If an individual can not perform his or her job any longer because of a disability, he or she must have informed the employer about the disability, and the employer not have offered other suitable work, for the individual to be eligible for benefits. Individuals who leave work because of a disability and apply for unemployment benefits will be given a written "directive" by the department telling them their job search requirements. They will not be required to do more than individuals who are not disabled. A disability resulting from pregnancy will be treated the same as other medical disabilities. And a leave of absence from work due to a disability will be considered a separation entitling the employer to request relief of benefit charges.

     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 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.

No small business economic impact statement has been prepared under chapter 19.85 RCW. The department estimates that these rules will apply to approximately fifty individuals per year. The law already provides that when an individual voluntarily leaves work due to illness or disability, the employer may request relief of benefit charges. The proposed rules will treat a leave of absence due to illness or disability as a separation from work, permitting the employer to request relief of charges if an individual is found eligible for unemployment benefits.

Section 201, chapter 403, Laws of 1995, does not apply to this rule adoption. The proposed regulations constitute "significant legislative" rules because (a) they establish or alter the qualifications or standards for determining an individuals 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 March 28, 2001, at 11:00 a.m.

Assistance for Persons with Disabilities: Contact Karen LaFreniere by March 27, 2001, 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 March 27, 2001.

Date of Intended Adoption: April 9, 2001.

February 21, 2001

Paul Trause

Acting Commissioner

     (2) The provisions of subsection (1) apply only when:

     (a) You notified your employer about your disabling condition; and

     (b) Your disability and resulting work restrictions are supported by a physician's statement, or by the terms of a collective bargaining agreement or your individual employment agreement.

     (3) If requested by the department or your employer, the statement from your physician shall describe:

     (a) The restrictions on the tasks or work-related functions you can perform;

     (b) The restrictions on the number of hours you can work, if any; and

     (c) The expected duration of the disability and resulting work restrictions.

     (3) This section also applies if you are on a voluntary leave of absence from work because of a pregnancy-related disability.

[]

     (1) You must meet the job search requirements described in RCW 50.20.240; and

     (2) The department will provide you with a directive that lists the job search requirements you must meet to maintain your eligibility for benefits. These job search requirements will not be more stringent than those imposed on claimants who are not disabled.

[]

[]

AVAILABILITY TO ACCEPT WORK
NEW SECTION
WAC 192-170-050   Suitable work factors -- RCW 50.20.100.   (1) Physical fitness. (a) In addition to those factors listed in RCW 50.20.100 and RCW 50.20.110, the department will consider whether you have a disability that prevents you from performing the essential functions 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 as defined in WAC 192-16-013;

     (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, the essential functions you can perform, and the occupations you are seeking does not substantially limit your employment prospects within your general area.

     (c) Disabilities resulting from pregnancy will be treated the same as other disabilities, except that the department will also consider the risk to your pregnancy when deciding whether work is suitable.

     (d) The department will require verification from a physician 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) Definitions. For the purposes of this chapter:

     (a) "General area" means an individual labor market area and includes the geographic area within which an individual would customarily seek work in a given occupation.

     (b) "Physician" means a person licensed to practice one or more of the following professions: Medicine and surgery (including, but not limited to, psychiatry); osteopathic medicine and surgery; chiropractic; naturopathic medicine; podiatry.

[]

     The following section of the Washington Administrative Code is repealed:

WAC 192-16-021

Interpretive regulations -- Suitable work factors -- RCW 50.20.100

© Washington State Code Reviser's Office