PROPOSED RULES
Original Notice.
Preproposal statement of inquiry was filed as WSR 97-11-086.
Title of Rule: Leaving work due to disability, suitable work factors, and job search requirements of individuals who leave work due to illness or disability.
Purpose: The proposed rules will codify and clarify the department's policies regarding the eligibility for unemployment benefits of claimants who are unable to work full-time, or who leave work, due to a disabling condition. The rules also clarify the requirements such claimants must meet to maintain eligibility for unemployment benefits.
Statutory Authority for Adoption: RCW 50.12.010, 50.12.040, 50.20.010.
Statute Being Implemented: RCW 50.20.050, 50.20.100.
Summary: The proposed rules state that claimants who leave work because of a disability will not be found unavailable for work if they notified the employer about the disability. The claimant must show good cause for refusing alternative suitable work or other accommodation offered by the employer. The rules define the circumstances under which less than full-time work is suitable for claimants with disabilities. Disability resulting from pregnancy will be treated the same as other disabilities.
Reasons Supporting Proposal: These rules are proposed as required by a settlement 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 must notify the employer of a disability before leaving work or beginning a leave of absence. While unemployment insurance law does not require an employer to offer a disabled employee other work, any offer the employer does make must be made prior to the date of separation or leave of absence. If such an offer is made by the employer, the individual must demonstrate good cause for refusing the offer. If an individual refuses an offer of employment after leaving work or beginning a leave of absence, the department will determine whether the claimant has refused an offer of suitable work. The proposed rules also provide that an individual who is restricted to part-time work because of a disability may be eligible for unemployment benefits under certain conditions. This restriction must be verified by the individual's physician. Individuals who leave work because of a disability will be given a written directive by the department telling them their job search requirements. A disability resulting from pregnancy will be treated the same as other medical disabilities.
To a large extent, the proposed rules simply codify long-standing principles established by the commissioner in determining eligibility for unemployment benefits. In 1979, the commissioner held that an individual on a medical leave of absence is eligible for benefits as long as the individual is able to perform, and is actively seeking, other types of work (Wimer, CD 576 (1979)). That same year, the commissioner applied this same standard to pregnant women temporarily unable to work in their customary occupation (Carl, CD 488 (1979)). Similarly, the commissioner has held that the principle of denying benefits to individuals who have restricted their availability for full-time work does not apply to cases involving individuals with disabilities who are capable of working on a restricted basis (Ashe, CD 261 (1976)).
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: The proposed regulations primarily codify policies established by precedential decisions of the commissioner. Although the decisions were issued a number of years ago, compliance has not always been consistent. The purpose of adopting rules is to ensure all interested parties are aware of the policies regarding the eligibility of disabled persons for unemployment benefits.
WAC 192-150-060 requires a claimant who leaves work due to a disability to notify his or her employer of the disability before leaving work or beginning a leave of absence. Any work restrictions must be supported by a physician's statement, or by the terms of a collective bargaining agreement or individual hiring contract. An offer of alternative suitable work from the employer must be made prior to the date of separation, and the claimant is not required to request alternative work from the employer to be found available for work. If the employer does offer alternative work, the claimant must demonstrate good cause to refuse the offer. If the claimant refuses any offer of work after separation or after beginning a leave of absence, the department will determine whether the claimant refused an offer of suitable work. A claimant on a leave of absence due to a disability must promptly request reemployment when again able to return to work. These provisions apply to individuals on a leave of absence because of a pregnancy-related disability.
The policies embodied in this proposed rule are consistent with long-standing decisions of the commissioner. In 1979, the commissioner held that an individual on a medical leave of absence is eligible for benefits as long as the individual is able to perform, and is actively seeking, other types of work (Wimer, CD 576 (1979)). In that same year, the commissioner applied this same standard to pregnant women temporarily unable to work in their customary occupation (Carl, CD 488 (1979)).
WAC 192-170-050 provides that less than full-time work can be considered 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. It also follows the commissioner's holding that, while the principle of restricted availability is valid, it does not apply to cases involving "handicapped individuals who, though partially disabled, are capable of working on a restricted basis" (Ashe, CD 261 (1976)).
WAC 192-180-012 provides that, to be eligible for unemployment benefits in a specific week, an individual who leaves work because of an illness or disability must meet the job search requirements specified by RCW 50.20.240. In addition, the department will issue a job search directive to individuals who leave work because of illness or disability, describing the job search requirements that must be met.
Under current state law, 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.
RCW 50.29.020(2) and WAC 192-320-070 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 that an employer cannot be granted relief of charges when a claimant is on a leave of absence. The federal Family Medical Leave Act requires employers with fifty or more workers to provide up to twelve weeks of unpaid leave under certain circumstances. State regulation (WAC 162-30-020) requires employers of eight or more workers 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 these cases, 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:
| • | The FMLA does not apply to employers with fewer than fifty employees, and 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 under existing state law; |
| • | The proposed rule, WAC 192-150-060, applies only when a worker has notified the employer of the disabling condition and the employer does not offer alternative suitable work or other accommodation; |
| • | 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); and |
| • | Meeting the weekly job search requirements contained in RCW 50.20.240 and WAC 192-180-010. |
The larger the employer, the easier it is to find alternative work for, or otherwise accommodate, an individual employee. Thus, we have broken down the 50 cases as follows:
| 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) |
12 weeks of benefits
$250 per week.
Rate Class 1
| Benefit Charges | $3,000 | $3,000 |
| Taxable Wages | $50,000 | $250,000 |
| Benefit Ratio Before | 0 | 0 |
| After | .015000 | .003000 |
| Taxes Before | $235.00 | $235.00 |
| After | $1545.00 | $555.00 |
| Additional Cost | $1310.00 | $320.00 |
| Total cost to affected employers: | |
| Small employers: | $39,300 ($1310 x 30 employees) |
| Mid-size employers: | $ 3,200 ($320 x 10 employees) |
| Large employers: | $ 3,200 ($320 x 10 employees) |
A copy of the statement may be obtained by writing to Juanita Myers, UI Rules Coordinator, P.O. Box 9046, Olympia, WA 98507, or phone (360) 902-9665, fax (360) 902-9799.
RCW 34.05.328 applies to this rule adoption. Although the rules primarily codify existing rulings of the commissioner, they adopt substantive provisions of the law. The violation of the rules could result in the denial of unemployment benefits.
Hearing Location: Public Affairs Conference Room, 2nd Floor, Employment Security Department, 212 Maple Park, Olympia, WA, on November 29, 2001, at 10:00 a.m.
Assistance for Persons with Disabilities: Contact Karaen LaFreniere by November 28, 2001, TDD (360) 902-9589, or (360) 902-9585.
Submit Written Comments to: Barney Hilliard, Rules Coordinator, Employment Security Department, P.O. Box 9046, Olympia, WA 98507-9046, fax (360) 438-3226, by November 28, 2001.
Date of Intended Adoption: December 14, 2001.
October 22, 2001
Dr. Sylvia P. Mundy
Commissioner
(2) Any restrictions on the type or hours of work you may perform must be supported by a physician's statement or by the terms of a collective bargaining agreement or individual hiring contract.
(3) Nothing in unemployment insurance law requires your employer to offer you alternative suitable work when you have a disability, or modify your duties so that you can perform your current job. However, any offer from your employer of other suitable work must be made prior to the date you leave work or begin a leave of absence. You are not required to request alternative work from your employer to be found available for work.
(4) If your employer offers you alternative work or otherwise offers to accommodate your disability, you must demonstrate good cause to refuse the offer. This may include, but is not limited to, information from your physician that the accommodation offered by your employer was inadequate to reasonably accommodate your medical condition, or information demonstrating that the alternative work offered you by your employer was not suitable.
(5) If you refuse an offer of work from any employer after your job separation or after beginning a leave of absence, the department will determine whether you refused an offer of suitable work as provided in RCW 50.20.080.
(6) If you are on a leave of absence due to your disability, you must promptly request reemployment from your employer when you are again able to return to work.
(7) This section also applies to individuals on a leave of absence because of a pregnancy-related disability.
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CHAPTER 192-170AVAILABILITY FOR WORK
NEW SECTION
WAC 192-170-050
Suitable work factors -- RCW 50.20.100 and
RCW 50.20.110.
(1) Physical fitness. In determining whether
work is suitable as defined by 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.
(a) For purposes of this section, the term "disability" means a sensory, mental, or physical condition that:
(i) Is medically recognizable or diagnosable;
(ii) Exists as a record or history; and
(iii) Substantially limits the proper performance of your job.
(b) The department may determine in individual circumstances that less than full-time work is suitable if:
(i) The disability prevents you from working the number of hours that are customary to the occupation;
(ii) You are actively seeking work for the occupation and hours you have the ability to perform; and
(iii) 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) To be considered available for suitable work, you must be available for employment in an occupation in keeping with your prior work experience, education, or training. If such employment is not available in your general area, you must be willing to accept any employment which you have the physical or mental ability to perform.
(d) 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.
(e) The department will require verification from a physician of your disability, including:
(i) The restrictions on the tasks or work-related functions you can perform;
(ii) The restrictions on the number of hours you can work, if any;
(iii) The expected duration of the disability and resulting work restrictions; and
(iv) The types of tasks or work-related functions you are able to perform with this disability, if known by the physician.
(2) Definitions. For the purposes of this chapter:
(a) "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.
(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.
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(1) To be eligible for unemployment benefits, 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.
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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 |