• 2001 Washington Legislature Employment Law Update
  • May 6, 2003
  • Law Firm: Miller Nash LLP - Portland Office
  • The 2001 Washington Legislature met in a regular session and three emergency sessions passing only a few of the bills affecting employer-employee relationships. The new laws encourage employers to enact breastfeeding policies, give notice of the availability of chiropractic services to injured workers, extend unemployment benefits to Indian Tribe employees, and protect employers donating or loaning equipment to public service projects from liability as employers, including immunity from industrial insurance claims. But, like the Legislature's approach to the state's transportation problems, the employer-related legislation is probably as significant for what was not passed as opposed to what was actually enacted.

    Lactation Law:

    The Legislature established guidelines for the Department of Health to certify employers as "infant friendly," if the employers implement an approved workplace breastfeeding policy. To obtain Department of Health approval and certification, the employer's policy must contain at least the following four requirements:

    • Flexible work scheduling, including scheduled breaks and work patterns providing time for the mother to express breast milk;

    • A convenient private and sanitary location, other than a restroom, to allow the mother to breastfeed her child or express breast milk;

    • A convenient and sanitary water source for washing hands and rinsing breast-pumping equipment in the private location specified for breastfeeding or expressing the milk; and

    • A convenient and sanitary refrigerator in the workplace for the mother's breast milk.

    Lactation bills have gained popularity across the country in recent years, and many states mandate that employers provide employees with both the time and a private location to breastfeed infants. The Washington Legislature, however, elected to enact a voluntary measure.

    Workers' Compensation Claimants Must Be Notified of Chiropractic Services:

    The Legislature has expanded the responsibilities of employers to notify injured employees of medical services available under the Industrial Insurance Act. The law will affect self-insured employers and employers utilizing the Department of Labor and Industries to process claims. As of January 1, 2002, the notice must state, in clear non-technical language, that the employee has the right to receive heath services from a physician of the worker's choice, including a chiropractor. The notice must also list the types of providers authorized to provide these services. The law requires the Department of Labor and Industries to make new forms containing this language by January 1, the effective date of the new law.

    Extension of State Unemployment Insurance to Indian Tribes:

    The Legislature extended unemployment insurance benefits to certain Native American Indian tribal employees that had previously been excluded from receiving state benefits and paying premiums. The new state law extends unemployment insurance protection to those employees not previously covered, and obligates their employers (the tribe or tribal unit) to pay premiums in the same way as all other covered employers in Washington. The Legislature gave the act retroactive effect to cover all services performed on or after December 21, 2000.

    National Guard Re-Employment Act:

    The Legislature extended state protection for employment and job benefits based on seniority to uniformed service (National Guard) members called into duty for state service. This change added state protections to members of the National Guard in addition to their current federal law protection when ordered to duty by the Federal government. Members of affected service branches, who are residents of the state of Washington and who are called to duty by the state, are now protected from termination or discrimination when they return to their non-military jobs after being released from active duty. The new state protections are similar to the current national protection afforded those on nationally-ordered duty, including the requirements that an employee follow an administrative procedure in filing complaints before initiating a lawsuit.

    Limitation of Employer Liability for Donated or Loaned Equipment:

    The Legislature moved to minimize the liability of employers who loan or donate equipment and, thus, increase voluntary participation in joint public/private work projects such as community improvement projects or historic restorations. The law explicitly precludes an equipment-donating employer from being considered the employer (for industrial insurance liability purposes) of any volunteers who use the donated equipment or material. This exemption extends even to volunteers who are the customary employees of the donating employer, if those employees are donating their own labor to help on the project. Only if the employer who donates material or equipment is paying actual wages or making volunteering a condition of employment will the equipment- or material-donating employer be considered an employer for industrial insurance and other liability purposes on such volunteer projects. Additionally, the law requires the public entity to provide clear notice to material and equipment donators and labor donators of their respective rights and liabilities.

    Legislative Inaction:
    Ergonomics Legislation and Conforming State and Federal Disability and Overtime Law.

    Although Congress took action this year to sidetrack federal ergonomics regulations issued by the Clinton Administration, the Washington State House failed to act on a Senate-passed bill that would have postponed implementation of Washington's proposed Ergonomic Regulations. The mandatory provisions of the state regulations are due to start impacting large employers July 1, 2002. The legislature also took no action to conform state employment law with federal law, particularly with respect to disability discrimination requirements and overtime exemptions and regulations. Significant differences between state and federal disability and overtime law will continue to trap Washington employers.