January 25, 2019 Legislative Update
Today marks the end of the second week of Washington’s legislative session. There have been a number of highlights this week that will continue into next week:
Wage Calculation. Senate Bill 5217, introduced last week by worker advocates, restructures the statutory method by which time loss and pension benefits are calculated, introduces a number of new definitions, and replaces the current sliding scale for determining percentage of wage with a flat 70 percent rate for all workers.
The bill was heard in the Senate Labor & Commerce committee on Tuesday morning. Click here to watch the hearing (the first ~ 30 minutes of the video). The claimants’ bar and labor union representatives, and to a lesser extent Vickie Kennedy of Labor & Industries, supported the bill while all speakers from the employer community, including WSIA, spoke against it.
Next steps: Vickie is going to give a presentation on Tuesday to employer reps at a meeting on the Hill called by the bill’s sponsor, committee chair Karen Keiser, D-Des Moines, as to why the Department thinks this new method of calculation may be an improvement. Then on Wednesday, interested folks are having a meeting/conference call here at WSIA from 11am to Noon to discuss concerns/alternatives. Then on Thursday, Sen. Keiser has invited a limited group of reps from business and labor, including WSIA, to kick off attempts to come to some kind of agreement. She has signaled her intent to see this bill move along this session. We are still waiting a fiscal analysis from L&I on the benefit increase. I welcome feedback from self-insureds on what a 70% time loss rate might mean in your industry.
Self-Insured Claims. Senate Bill 5474 was introduced, again by Senator Keiser, partly at WSIA’s request. The part WSIA wants is section 2 of the bill, which is a fix to the Court of Appeals’ Dolph decision, on the ability of self-insured employers to effect valid service of department-issued closing orders. However, Sen. Keiser has inserted section 1 of the bill which deals with self-insured allowance orders, and section 3 of the bill which sets up a business-labor working group to discuss the adequacy of the current penalty structure. Our current position is we could hold our nose, with some technical fixes, to sections 1 and 3 in order to get section 2, but so far the bill has not been scheduled for hearing and we are understanding that there is some pushback from the labor/claimants’ bar about the bill.
Meanwhile, HB 1682 will be introduced formally on Monday on the House side, and it is the WSIA Dolph fix without the other provisions. We’ll be working to get the matter heard and moving on the House side while Senator Keiser decides what she wants to do with her bill on the Senate side.
Occupational Disease Presumptions. No bill has been introduced yet for 2019, but we continue to be involved in behind-the-scenes negotiations with reps from the law enforcement and firefighters union over their perennial bill to expand the occupational disease presumptions of RCW 51.32.185. We are at a point where we are likely to have to concede a handful of new presumed cancers, and certain cardiovascular incidents for law enforcement, in order to protect current standards for rebutting the presumption, pre-employment screening, and, significantly, a new medical advisory board at LNI to weigh in on the inclusion of any future conditions from a scientific standpoint.
However, bill advocates have attempted to include a peculiar provision in their proposal that would disbar “science” from being a basis for defeating coverage in a presumed disease claim. While we are perplexed about the provision, its intent seems to be to render statutorily irrelevant any kind of reference to scientific literature or testimony in the defense of one of these claims. We are working overtime to exclude this provision from any introduced proposal. Watch for something next week on this.
Hanford Workers. Last year’s law, now the subject of federal litigation in Eastern Washington, that grants a broad presumption of occupational disease to a vast array of Hanford contractor/subcontractor workers, required a pre-employment screen for cancer in order to work. Bill advocates figured out in the meantime that most employers nor the Dept. of Energy pre-screen anyone for cancer. So Senate Bill 5507 and House Bill 1490 have been introduced to essentially remove the pre-employment screen requirement in the event the employer never offered one. We’re just monitoring this one at this point.
Independent Contractors. There is about to be an extraordinary amount of legislative energy spent on the issue of classifying a worker as an independent contractor or covered employee, across all industries and for virtually every labor and employment law, including social insurance programs like workers’ compensation. Senate Bill 5513 and House Bill 1515 are up for hearing on Monday morning, to be followed shortly by House Bill 1601, which is a “portable benefits” bill that would impose a structure for providing an array of employee benefits to independent contractors. The consensus view among employer-side analysists of SB 5513/HB 1515 is that the proposal imposes so much exposure for considering an individual to be an independent contractor that it would effectively do away with the classification in practice. We will be monitoring these bills closely, with an emphasis on who will be considered a covered worker for purposes of Title 51.