Statewide Legislative Affairs Updates

Below is a summary of certain key employment law proposals in Washington State, as well as other case law that may affect human resource management in Washington State.

Bill numbers marked with an “*” failed to move out of committee and are considered dead for the remainder of the session.

Unemployment Insurance Legislation: 

1. HB 1106 - Concerning qualifications for unemployment insurance when an individual voluntarily leaves work.  This bill expands the list for voluntary quits.  The bill would allow individuals to get UI if they must quit to if they:  1. Employee must care for vulnerable adults or child and previous arrangements become unavailable; 2. A change in shift of more than 6 hours happens through no fault of the employee; or 3. Employee must move to care for a minor child.  AWB has concerns with the use of UI in these circumstances.  All these claims are beyond the control of the employer.  In addition, the changes proposed ignore the requirement that a person on UI must certify they are able and available to work. This bill is in the House Floor.   AWB is opposed to the bill  
2. HB 1095/SB 5109 - Creating a wage replacement program for certain Washington workers excluded from unemployment insurance. This bill raises some serious concerns for AWB.  While we can appreciate the need for some safety net for some individual employers are already paying UI premiums for all covered workers.  The documentation received by employers at the time of hiring is what determines if an individual can work.  If there is a determination by UI rejecting coverage because the employee is not qualified to work - the employer would now have constructive knowledge of the inability to work and therefore cannot hire them again.  This would create a difficult situation for both employees and employers.  The House bill was referred to House Appropriations Committee.  The Senate bill was referred to Senate Ways & Means Committee.   AWB is currently opposed to both bills. 
3. SB 5240/HB 1656 - Concerning unemployment insurance benefits appeal procedures. This bill would allow OAH to not review eligibility when no one is challenging eligibility. The option to review remains an option at the discretion of the ALJ. The Senate bill is on the Senate floor.  The House was referred to House Rules Committee.   AWB Supports this bill.
4. HB 1458 - Concerning unemployment insurance benefits for apprenticeship program participants. This bill would provide Unemployment Insurance to individuals in apprenticeship programs when participating in training.  The House bill was referred to the House Rules Committee.  AWB is opposed to this bill

Workers Compensation Legislation:

1. HB 1068/*SB 5212 - Concerning injured workers' rights during compelled medical examinations.  Like last year we see another IME bill introduced.  The main problem with these bills is the provision allowing recordings of the IME.  It lacks the requirement to provide unedited recordings to other parties.  In addition, the IME creates an adversarial situation between doctors and claimants.  The system already suffers from a lack of providers The bills only exacerbate the situation. One positive note is the restriction against legal representatives from being an observer. The House bill passed the House and was referred to the Senate Labor & Commerce Committee.  The Senate did not move and is considered dead for the remainder of session.  AWB are opposed to these bills as drafted.
2. HB 1558/SB 5084 - Creating a separate fund for the purposes of self-insured pensions and assessments. The Senate bill is in Senate Rules Committee.  The House bill was referred to the House Appropriations Committee.  AWB Supports these bills.
3. HB 1137/SB 5368 - Creating equitable access to return-to-work opportunities in workers' compensation.  This bill would allow employers to offer return to work options at participating nonprofits.  The House bill failed to move and is considered dead for the reminder of session.  The Senate bill is in the Senate Rules Committee.  AWB Supports these bills.
4. SB 5454/HB 1593 - Concerning industrial insurance coverage for posttraumatic stress disorders affecting registered nurses.  These bills would once again expand PTSD workers’ compensation claims.  This expansion undermines the original intent of the workers compensation system.  What started with Fire and Police now includes Hanford workers and Covid first responders.  The original bill had a rebuttable presumption rebutted by clear and convincing evidence.  The amended version changes this to preponderance of evidence. The Senate bill had a hearing in the Senate Ways & Means Committee on February 18th.  The House bill is scheduled hearing in the House Appropriations Committee on February 21st.  AWB has concerns with this bill because of the continued expansion of PTSD presumptions and high cost to the fund. 
5. HB 1521/SB 5524 - Concerning the duties of industrial insurance self-insured employers and third-party administrators. This bill undermines and agreement that was made in 2020 session.  It provides for treble damages against self-insured TPAs for alleged good faith/fair dealing in claims management.  It creates a double standard for self-insureds versus state fund claims managers. The House bill was referred to the House Rules Committee.  The Senate bill was referred to the Senate Rules Committee.   AWB is opposed to these bills.

Long Term Care Legislation:

1.  No LTC bills moved before cut-off – This issue, however, is likely NTIB and may still be addressed by the legislature.  

 Paid Family & Medical Leave Legislation:

1.  SSB 5286 - Modifying the premium provisions of the paid family and medical leave program.  Amends the premium rate calculation in the Paid Family and Medical Leave Program (PFML) to be based on a specified formula rather than the Family and Medical Leave Insurance Account (Account) balance ratio on September 30th of the previous year.  Sets a maximum rate of 1.2 percent and removes the Employment Security Department's authority to assess a solvency surcharge if the account balance ratio falls below a certain threshold.  The Senate bill is in the House Labor & Workplace Standards Committee.  AWB Supports this bill.
2. SB 5586 - Concerning employees' paid family or medical leave data.  This bill would provide claim information to employers necessary to implement the PFML program It allows employers to fully administer the program by providing necessary information regarding claim duration, payments, and type of claim. The bill is in the Senate Rules Committee.   AWB Supports this bill.

General Employment and Labor Legislation:

1. SB 5123 - Concerning the employment of individuals who lawfully consume cannabis.  This bill is a step closure then earlier versions.  This bill limits pre-employment restrictions regarding the use of cannabis.  There are few exceptions listed in the bill. The concern is that it leaves out several industries that raise safety concerns like agriculture and manufacturing. We worked with the sponsor to address many of our concerns.  This bill now clearly applies only to preemployment testing.  We are still seeking an amendment to include a safety sensitive exemption.  This bill would still allow employers to have a zero-tolerance drug policy on day one.  This bill is on the Senate floor.  With the changes made AWB still has some concerns but is now neutral on the legislation.   
2. HB 1099 - Requiring certain wages in public works contracts to be at least the prevailing wage in effect when the work is performed.  This bill would change collectively bargained wages in the middle of a project when the prevailing wage changes during a contract.  It creates a system that results in higher costs for government projects.  It is another example of government interfering in day-to-day operations of employers.  This bill was heard in the House Capital Budget Committee.  AWB is opposed to this bill.
3. SB 5061/1320 - Concerning access to personnel records.  This bill fails to recognize the reality of how records are maintained in digital age.  The requirements to provide records in 14 days or less has the potential to create impossible requirements especially small business.  AWB also opposes the private right of action (PRA) in the bill.  This creates a system of regulation through litigation. The Senate bill is in in the Senate Ways & Means Committee.  The House bill is scheduled for hearing in the House Appropriations Committee on February 23rd .   AWB is opposed to this bill as currently drafted.
4. SB 5110 - Adding penalties for certain prohibited practices in chapter 49.44 RCW.  The original bill creates a private right of action (PRA) for all actions under 49.44 RCW.  The bill was amended to only apply to those sections in the statute that have no criminal or civil penalties available.  The Senate bill is in the House Labor & Workplace Standards Committee.  AWB is opposed to this bill as currently drafted.
5. SB 5111 – this bill requires payment for accrued and unused sick leave for certain construction workers separating from employment. This undermines those items that were collectively bargained.  The bill was passed to the Senate Rules Committee.  AWB is opposed to the bill.
6. SB 5236 - Concerning hospital staffing standards.  This bill mirrors last year’s bill with the exception that L&I make the rules to determine staff ratios.  This bill allows the state to interfere in the day-to-day operations without having any real knowledge of how to staff nurses.  The bill was heard in the Senate Ways & Means Committee.  AWB is opposed to the bill.
7. HB 1187 - Concerning privileged communication between employees and the unions that represent them.  This would apply a new privilege to private labor relations.  It goes against the commitment to transparency.  It impedes the employer’s ability to investigate complaints.  The law also puts the privilege with the union and not the individual like every other defines privilege.  The bill is in the House Rules Committee.  AWB is opposed to this bill.
8. HB 1136 - Requiring employers to reimburse employees for necessary expenditures and losses.  This bill has an overly broad definition of necessary expenditures.  In addition, the bill has a PRA that would result in a greater burden to small employers. The bill is on the House Floor.   AWB is opposed to this bill.
9. *SB 5327 -Requires any state or local governmental body or agency, or educational, charitable, or nonprofit organization receiving public funds who provides an internship, to pay the intern at least the state minimum wage for the hours of the internship.  The bill failed to move out of the policy committee and is considered dead for the remainder of the session. AWB is opposed to this bill.
10. SB 5417 - Protecting the rights of workers to refrain from attending meetings or listening to their employer's speech on political or religious matters.  Attached is a one-pager explaining AWB’s concerns regarding this bill.  The bill is in the Senate Rules Committee.  AWB is opposed to this bill.
11. SB 5217 - Concerning the state's ability to regulate certain industries and risk classes to prevent musculoskeletal injuries and disorders. This bill would create unnecessary regulatory burdens on employers.  State law already protects employees, and the system is working. Musculoskeletal disorders have been declining over the past 15 years, thanks to employers creating safer workplaces and implementing existing programs. The Department of Labor & Industries already has authority to cite employers for any ergonomics issues. The costly regulations of this bill are not necessary.  The rulemaking authorized by is unproven, untested, and unnecessary. Voters knew that in 2003 and it’s clearly true in 2022. The bill is on the Senate Floor.  AWB is opposed to this bill. 
12. SB 5059 - Concerning prejudgment interest.  The modifies the accrual date for interest on tort judgments for tortious conduct of public agencies, individuals, and other entities to the date the cause of action. This bill was heard in the Senate Ways & Means Committee.   AWB is opposed to this bill.
13. HB 1067 - Public Hearing - Concerning wages for journeypersons in high-hazard facilities.   This bill would require the use of prevailing wage to the private sector. The bill is on the House floor.  AWB is opposed to this bill.
14. HB 1217 - Concerning wage complaints.    It creates a system of guilty unless proved innocent.  This bill would require prejudgment interest to be assessed before any final determination. The law would bar L&I from waiving it.  The bill also sets up a taskforce.  The taskforce has been amended to provide additional business representatives.  It creates a more balanced taskforce.  This bill is in the House Rules Committee.  AWB remains opposed to the bill. 
15. SB 5348 - Concerning warehouse distribution centers.  This bill would interfere in the day-to-day operation of warehouses that have 180 workers in one facility or 1200 employee in multiple facilities.  It would restrict the use of quotas.  This bill will strain an already fragile supply chain with no justifiable reason.  The bill was amended to match the House version putting a PRA back in and lowing the threshold of who is now covered by the provisions. (See HB 1762) This bill is in the Senate Rules Committee. A Draft one-pager is attached.  If you are interested to lending your logo to the document, please send it to me by 5 PM Monday, February 20th.  AWB is opposed to this bill
16. HB 1762 - Protecting warehouse employees.  Like SB 5348 this bill would interfere in the day-to-day operation of warehouses.  It is like the senate version but has more restrictive provisions.  It would apply to any facility with 100 or mor employees in a single facility and 500 employees or more statewide.  It would restrict the use of quotas.  Unlike the Senate version the House version has a private right of action (PRA). This bill will strain an already fragile supply chain with no justifiable reason.  This bill is scheduled for a hearing in the House Appropriations Committee on February 21st.  A Draft one-pager is attached.  If you are interested to lending your logo to the document, please send it to me by 5 PM Monday, February 20th.  AWB is opposed to this bill.
17. *HB 1393 - Concerning the requirements to obtain a journey level electrician certificate of competency.  This bill extends the time to comply with apprenticeship requirements. The bill failed to move out of the policy committee and is considered dead for the remainder of the session.  AWB Supports this bill.
18. HB 1570 - Concerning social insurance programs applicable to transportation network companies and drivers.  AWB participated in the TNC taskforce this last interim.  This bill will set requirements for TNC’s to provide benefits to the independent contractors that drive for them.  The bill is scheduled for a hearing in the House Appropriations Committee on February 22nd.   AWB is neutral on this bill. 
19. SB 5541 - Providing transparency in supply chains.  Requires every seller and manufacturer doing business in Washington and having annual worldwide gross receipts of $75,000,000 or more to disclose its efforts to eradicate human trafficking and forced labor from its direct supply chain for tangible goods offered for sale.  Requires the Department of Revenue to submit a list of noncompliant sellers and manufacturers to the Attorney General and Legislature.  AWB is seeking to make this bill match the California system that has been in place for several years.  The bill is in the Senate Ways & Means Committee.   AWB is other but has expressed concerns regarding the bill.   
20. *HB 1785 - Establishing COVID-19 as an occupational disease.  This bill would make any infectious or contagious diseases that are transmitted through respiratory droplets or aerosols, or through contact with contaminated surfaces and are the subject of a public health emergency, and which are shown to be proximately caused by employment or work conditions, whether through the presumption set out in this section or otherwise, are occupational diseases under RCW 51.08.140. The bill failed to move out of the policy committee and is considered dead for the remainder of the session.  AWB is opposed to this bill.

Date and Technology Legislation:

1. HB 1051 - Concerning robocalling and telephone scams.  The bill prohibits a person from initiating or assisting with a telephone solicitation or a commercial solicitation using an automatic dialing and announcing device to any: (1) telephone number with a Washington area code; (2) telephone number registered to a Washington resident; or (3) telephone number with a Washington area code or registered to a Washington resident on the do not call list.  The bill would make it a violation of the Telephone Solicitation Act (TSA) and a violation of the prohibition on using an automatic dialing and announcing device to make a commercial solicitation violation of the Consumer Protection Act.  It creates a private right of action.  It modifies and adds definitions to the TSA, the Commercial Telephone Solicitation Regulation Act, and the automatic dialing and commercial solicitation statute.  We have continued to work with the prime sponsor and AGO to resolve concerns.  Many of the concerns have been addressed.  The hope is we will be able to ultimately support the bill. This bill is in the House Rules Committee.  With the current changes AWB is now supportive of the bill.     
2. HB 1155/SB 5351 - Addressing the collection, sharing, and selling of consumer health data.  AWB has raised several concerns regarding the bill.  The bill as drafted has inconsistent definitions that should be aligned with existing definitions.  The bill has a private right of action (PRA) for individuals under the Consumer Protection Act (CPA).  If the CPA PRA remains in the bill individuals should be required to prove all 5 elements necessary under the CPA.  We will also seek a right to cure if the bill has a PRA.  This is currently on the House floor.  AWB continues to work with the parties to address our concerns.
3. *SB 5464/HB 1392 - Promoting the fair servicing and repair of digital electronic equipment.  Requires original manufacturers of digital electronic equipment and parts for such equipment to make available to any independent repair provider and owner any parts, tools, and documentation required for the maintenance and repair of such equipment and parts. Provides sole attorney general enforcement under the Consumer Protection Act.  The Senate bill failed to move out of the policy committee and is considered dead for the remainder of the session.  The House bill is scheduled for hearing in the House Appropriations Committee on February 20th.  AWB takes no position on this bill.

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SHRM Update: 2022 Legislative Session – ending on 03/10

2022 Senate Bill 5761: Concerning employer requirements for providing wage and salary information to applicants for employment

Summary: The requirement for an employer to provide salary information after an initial job offer, upon request of the applicant, is removed. Instead, beginning January 1, 2023, an employer must disclose in each posting for each job opening the wage scale or salary range, and a general description of all of the benefits and other compensation to be offered to the hired applicant. "Posting" means any solicitation intended to recruit job applicants for a specific available position, including recruitment done directly by an employer or indirectly through a third party, and includes any postings done electronically, or with a printed hard copy, that includes qualifications for desired applicants.

Introduced by Sen. Emily Randall (Port Orchard) (D) on January 10, 2022

  Official Text and Analysis.

Passed 27 to 21 in the Senate on February 9, 2022.
    See Who Voted "Yes" and Who Voted "No".

Received in the House on February 12, 2022

Passed 51 to 46 in the House on March 1, 2022.
    See Who Voted "Yes" and Who Voted "No".

Received in the Senate on March 7, 2022

Passed 28 to 21 in the Senate on March 7, 2022.
    See Who Voted "Yes" and Who Voted "No".

Senate concurred in House amendments. Passed final passage..

2022 House Bill 1795: Prohibiting nondisclosure and nondisparagement provisions from employers regarding illegal acts of discrimination, harassment, retaliation, wage and hour violations, and sexual assault

Brief Summary: Makes void and unenforceable provisions in agreements between an employer and employee that prohibit the disclosure of conduct that is illegal discrimination, harassment, retaliation, a wage and hour violation, or sexual assault, or that is against a clear mandate of public policy, occurring in the workplace.

Introduced by Rep. Liz Berry (Seattle) (D) on January 10, 2022

  Official Text and Analysis.

Passed 56 to 40 in the House on February 9, 2022.
    See Who Voted "Yes" and Who Voted "No".

Received in the Senate on February 10, 2022

Passed 29 to 20 in the Senate on March 3, 2022.
    See Who Voted "Yes" and Who Voted "No".

Signed by Gov. Jay Inslee on March 24, 2022

2022 House Bill 1794: Requiring an employer to reimburse employee fees when a paycheck is dishonored by nonacceptance or nonpayment

Brief Summary: Requires employer reimbursement of fees charged to an employee due to a dishonored paycheck.

Introduced by Rep. Larry A. Hoff (Vancouver) (R) on January 10, 2022

  Official Text and Analysis.

Passed 96 to 0 in the House on February 8, 2022.
    See Who Voted "Yes" and Who Voted "No".

Received in the Senate on February 10, 2022

Passed 48 to 0 in the Senate on March 1, 2022.
    See Who Voted "Yes" and Who Voted "No".

Signed by Gov. Jay Inslee on March 11, 2022

2022 Senate Bill 5564: Protecting the confidentiality of employees using employee assistance programs

Summary: It is unlawful for an employer to obtain individually identifiable information regarding an employee's participation in an EAP. Individually identifiable information gathered in the process of conducting an EAP must be kept confidential.

Introduced by Sen. Karen Keiser (Kent) (D) on January 10, 2022

  Official Text and Analysis.

Passed 45 to 4 in the Senate on February 9, 2022.
    See Who Voted "Yes" and Who Voted "No".

Received in the House on February 11, 2022

Passed 93 to 2 in the House on February 26, 2022.
    See Who Voted "Yes" and Who Voted "No".

Signed by Gov. Jay Inslee on March 4, 2022

2022 House Bill 1613: Concerning shared reporting responsibilities for both the paid family and medical leave and the long-term services and supports trust programs to clarify that information collected from employer reports shall remain private

Brief Summary: Information or records on individuals or employers obtained through the collection of premiums and qualification determinations for the LTSS trust program must be kept private and confidential in the same manner as in the PFML program. Confidential information or records in the PFML program may be disclosed to the Department of Social and Health Services, the Health Care Authority, and the Office of the State Actuary for the purposes of administering the ESD's responsibilities under the LTSS trust program. The ESD may enter into data sharing agreements in order to conduct program evaluations of the LTSS trust program. The LTSS trust program may disclose confidential information or records in certain instances to allow for contracted assistance in the operation, management, and implementation of the program.

Introduced by Rep. Mike Sells (Everett) (D) on January 10, 2022

  Official Text and Analysis.

Passed 86 to 9 in the House on February 9, 2022.
    See Who Voted "Yes" and Who Voted "No".

Received in the Senate on February 11, 2022

Passed 45 to 3 in the Senate on March 2, 2022.
    See Who Voted "Yes" and Who Voted "No".

Signed by Gov. Jay Inslee on March 11, 2022

SHB 1732 Long-term care/delay

• Delays the start date for the premium assessments under the Long-Term Services and Supports Trust Program (LTSS Trust Program) from January 1, 2022, to July 1, 2023.
• Delays the date benefits become available under the LTSS Trust Program from January 1, 2025 to July 1, 2026.
• Allows individuals born before January 1, 1968, who do not meet the LTSS Trust Program's vesting requirements, to receive partial benefits based on the number of years of premium payments.
• Requires employers to refund employees any LTSS Trust premiums collected before July 1, 2023. Any premiums collected from the employee prior to July 1, 2023,  shall be refunded to the employee within 120 days of the collection of the premiums.
• signed into law by the Governor on January 20, 2022

ESHB 1733 Long-term care/exemptions

• Beginning January 1, 2023, an employee may apply to ESD to be exempted from the LTSS Trust Program if they are:
• a veteran of the United States military who has been rated by the United States Department of Veterans Affairs as having a service-connected disability of at least 70 percent;
• a spouse or registered domestic partner of an active duty service member of the United States Armed Forces;
• working under a non-immigrant visa for temporary workers and employed by an employer in Washington; or
• employed by a Washington employer, but have a permanent address and primary residence out of state.
• signed into law by the Governor on January 20, 2022

Employers Can No Longer Require Arbitration of Sexual Harrassment Claims