EMPLOYMENT SECURITY DEPARTMENT

[Filed October 9, 2019, 9:53 a.m.]

Title of Rule and Other Identifying Information: Leave of absence, WAC 192-170-080 (1)(a).

Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: WAC 192-170-080 (1)(a) was determined to be "invalid" by the commissioner of the employment security department under In re Ausburn, Empl. Sec. Comm'r Dec.2d 971 (2011). In that decision, the commissioner determined the rule was in "direct conflict" with RCW 50.04.310. Consequently, the department is repealing WAC 192-170-080 (1)(a). The remainder of WAC 192-170-080 will remain in effect.

Reasons Supporting Proposal: WAC 192-170-080 (1)(a) should be repealed so the public does not mistakenly rely on an invalid rule.

Statutory Authority for Adoption: RCW 50.12.010 and 50.12.040 provide general rule-making authority to the employment security department, including the authority to repeal rules.

Statute Being Implemented: RCW 50.04.310(1).

Rule is necessary because of state court decision, In re Ausburn, Empl. Sec. Comm'r Dec.2d 971 (2011).

Name of Proponent: Employment security department, governmental.

Name of Agency Personnel Responsible for Drafting: Scott Michael, Olympia, Washington, 360-890-3448; Implementation and Enforcement: Julie Lord, Olympia, Washington, 360-902-9579.

Agency Comments or Recommendations, if any, as to Statutory Language, Implementation, Enforcement, and Fiscal Matters: The employment security department already operates as if WAC 192-170-080 (1)(a) has been repealed. This rule making will officially repeal the rule.

This notice meets the following criteria to use the expedited repeal process for these rules:

The rule is no longer necessary because of changed circumstances.

Explanation of the Reason the Agency Believes the Expedited Rule-Making Process is Appropriate: In re Ausburn, Empl. Sec. Comm'r Dec.2d 971 (2011) determined WAC 192-170-080 (1)(a) was in direct conflict with RCW 50.04.310(1) and therefore WAC 192-170-080 (1)(a) is invalid.

THIS RULE IS BEING PROPOSED UNDER AN EXPEDITED RULE-MAKING PROCESS THAT WILL ELIMINATE THE NEED FOR THE AGENCY TO HOLD PUBLIC HEARINGS, PREPARE A SMALL BUSINESS ECONOMIC IMPACT STATEMENT, OR PROVIDE RESPONSES TO THE CRITERIA FOR A SIGNIFICANT LEGISLATIVE RULE. IF YOU OBJECT TO THIS USE OF THE EXPEDITED RULE-MAKING PROCESS, YOU MUST EXPRESS YOUR OBJECTIONS IN WRITING AND THEY MUST BE SENT TO Joshua Dye, Employment Security Department, P.O. Box 9046, Olympia, WA 98507-9046, phone 360-890-3472, fax 844-652-7096, email rules@esd.wa.gov, TTD [TDD] relay 711, AND RECEIVED BY December 23, 2019.

AMENDATORY SECTION(Amending WSR 10-11-046, filed 5/12/10, effective 6/12/10)

WAC 192-170-080Leave of absence.

(1) A leave of absence is an absence from work mutually and voluntarily agreed upon by you and your employer or a collective bargaining agent, or leave to which you are entitled under federal or state law, where the employer-employee relationship is continued and you will be reinstated in the same or similar job when the leave expires.

(a) ((If you are on a leave of absence, you are not unemployed and thus not eligible for benefits.

(b))) If you choose not to return to work when the leave of absence ends, the separation is treated as a voluntary quit. The separation date will be the first working day after the leave expires.

(((c)))(b) If no job is available with the employer when the leave of absence ends, the separation is treated as a layoff due to a lack of work.

(((d)))(c) If you have been on medical leave and are released for work by your medical provider, but your employer refuses to permit you to return to work, you are considered to be laid off due to a lack of work and potentially eligible for benefits.

(2) A leave of absence does not exist if the employer offers you only a preference for rehire or a promise of a job if work exists at the end of the leave. An employee-initiated leave that only provides fringe benefits during the leave or preferential status for reemployment is not a leave of absence but a voluntary quit.

(3) A temporary or indefinite disciplinary suspension from work by the employer is not a leave of absence. The department will treat this as a suspension.