Proposed Rules on Washington's Domestic Violence Leave: Written Comments Due by May 25

The Washington state Department of Labor and Industries (L&I) has issued proposed rules to interpret RCW Chapter 49.76 – Domestic Violence Leave. All interested parties are invited to submit written comment to the department by May 25.

The final rules, which are slated to go into effect in July 2010, are a long-awaited opportunity to provide much-needed guidance to employers and employees alike regarding the undefined and less-than-clear provisions in the statute. Unfortunately, the proposed rules do little more than restate the statutory provisions.

Under the statute, which has been in effect since April 1, 2008, Washington employers of any size are required to provide what amounts to open-ended, unpaid leave to any employee who is either a victim of, or a relative of a victim of domestic violence, sexual assault or stalking. The leave may be used to obtain legal or law-enforcement assistance, medical treatment or counseling, or for safety planning or relocation. With few exceptions, employers arguably must maintain the employee’s health benefits for the duration of the leave, and are required to reinstate employees to the same or equivalent position upon their return.

In the statute, the duration of leave is addressed only by the statement that the leave must be “reasonable.” L&I’s proposed rule provides no additional guidance and simply recites that “the reasonableness of duration of leave must be determined on a case-by-case basis considering the reasons for taking leave.” Nowhere is consideration given to an employer’s potential hardship with regard to providing leave. As proposed, only the reason for the leave may be considered when determining reasonableness. Thus, a leave request for three months to relocate might be deemed reasonable for time needed to relocate, but expecting the employer to hold the job open for three months could be extremely burdensome, especially for an employer with only a small number of employees and limited resources. In our view, L&I should do more to appropriately define the “reasonableness” of a leave request, and include an “undue hardship” exception.

Other questions that should be addressed in the proposed rules include:

• Whether an employer is entitled to request reverification for leaves with open-ended duration;
• Whether an employer can request verification for each instance of absence for an intermittent leave or only once, upon the initial leave request;
• Whether there are any additional circumstances in which reinstatement is not required due to the nature of the position;
• Whether there are any exceptions for employers who employ multiple qualifying family members; and
• Whether, absent a contemporaneous Family and Medical Leave Act event that qualifies for domestic violence leave or a company practice of automatically paying group health insurance premiums during any paid leave, the Employee Retirement Income Security Act pre-empts any obligation on the part of the employer to continue to pay group health insurance premiums.

Washington employers and their associations that want to express their concerns on these and other issues related to domestic violence leave regulations should submit them to L&I by the May 25 deadline.

As noted above, the final rules should go into effect in July 2010. We will provide an update to this advisory if there are substantive differences between the proposed and final rules.