ENGROSSED SUBSTITUTE SENATE BILL 5267
State of Washington 68th Legislature 2023 Regular Session
By Senate Labor & Commerce (originally sponsored by Senators Kuderer,
Stanford, Conway, Frame, Hasegawa, Hunt, Keiser, Lovelett, Lovick,
Nguyen, Nobles, Pedersen, Saldaña, Shewmake, Trudeau, Wellman, and C.
Wilson)
READ FIRST TIME 02/15/23.
1 AN ACT Relating to safeguarding the public safety by protecting
2 railroad workers; adding a new chapter to Title 49 RCW; prescribing
3 penalties; providing an effective date; and declaring an emergency.
4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
5 NEW SECTION. Sec. 1. The legislature finds that railroad
6 employees are susceptible to illness and infectious diseases from
7 working in confined spaces, as well as the illnesses and injuries
8 that affect the general population, yet have no protections for
9 unpaid leave, and may be subjected to discipline and termination for
10 unpaid absences from duty due to illnesses and injuries of themselves
11 and their family members, or for bereavement.
12 The legislature further finds that railroad employees may report
13 to work while ill to avoid disciplinary action by railroad companies,
14 pursuant to their corporate attendance and availability policies.
15 The provisions of this chapter are enacted in the exercise of the
16 police power of the state for the purpose of protecting the immediate
17 and future health, safety, and welfare of the people of this state.
18 NEW SECTION. Sec. 2. The definitions in this section apply
19 throughout this chapter unless the context clearly requires
20 otherwise.
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 1 (1) The following terms have the same meaning as provided in RCW
2 50A.05.010: "Child," "family leave," "family member," "health care
3 provider," "medical leave," "period of incapacity," "serious health
4 condition," and "spouse."
5 (2) "Department" means the department of labor and industries.
6 (3) "Director" means the director of the department of labor and
7 industries, or the director's authorized representative.
8 (4) "Employee" means a person who has been employed by a railroad
9 carrier.
10 (5) "Employer" means any person, firm, corporation, partnership,
11 business trust, legal representative, or other business entity,
12 including any unit of local government including, but not limited to,
13 a county, city, town, municipal corporation, quasi-municipal
14 corporation, or political subdivision, which engages in business as a
15 railroad carrier.
16 (6) "Employment benefits" means all benefits provided or made
17 available to employees by an employer, including group life
18 insurance, health insurance, disability insurance, sick leave, annual
19 leave, educational benefits, and pensions except benefits that are
20 provided by a practice or written policy of an employer or through an
21 employee benefit plan as defined in 29 U.S.C. Sec. 1002(3).
22 (7) "Intermittent leave" is leave taken in separate blocks of
23 time due to a single qualifying reason.
24 (8) "Operating craft employee" means any employee of a railroad
25 carrier who performs service in an operating craft on a railroad or
26 directs the work of an operating craft employee as a scheduled
27 employee, and includes any other employee of a railroad carrier who
28 performs safety sensitive tasks associated with railroad operations.
29 (9) "Railroad carrier" means any employer subject to the
30 jurisdiction of the surface transportation board under 49 U.S.C. Sec.
31 1301 through 1326, as it exists on the effective date of this
32 section. "Railroad carrier" includes the officers and agents of the
33 railroad operations regardless of physical location. "Railroad
34 carrier" does not include class III carriers.
35 (10) "Unpaid" means a period of leave undertaken without
36 receiving payment of lost wages from an employing railroad company.
37 NEW SECTION. Sec. 3. The department shall administer the
38 provisions of this chapter.
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 1 NEW SECTION. Sec. 4. (1) No railroad carrier may dismiss,
2 suspend, lay off, demote, engage in any adverse action against, or
3 otherwise discipline an employee for unpaid absences pursuant to the
4 provisions of this section if:
5 (a) The employee has completed three consecutive months of
6 continuous employment by the railroad carrier prior to the absence;
7 (b) No consecutive period of unpaid absence pursuant to the
8 provisions of this section exceeds 15 days;
9 (c) The total number of unpaid absences the employee has taken
10 pursuant to the provisions of this section, including railroad
11 employer paid sick leave, is less than 91 days in the current
12 calendar year; and
13 (d) The unpaid absence is taken pursuant to subsection (2) of
14 this section.
15 (2) An employee's unpaid absence under this section is due to any
16 of the following reasons:
17 (a) An absence resulting from an employee's mental or physical
18 illness, injury, or health condition including fatigue; to
19 accommodate the employee's need for medical diagnosis, care, or
20 treatment of a mental or physical illness, injury, or health
21 condition; or an employee's need for preventive medical care;
22 (b) To allow the employee to provide care for a family member
23 with a mental or physical illness, injury, or health condition; care
24 of a family member who needs medical diagnosis, care, or treatment of
25 a mental or physical illness, injury, or health condition; or care
26 for a family member who needs preventive medical care; and
27 (c) When the employee or their spouse or registered domestic
28 partner's place of business has been closed by order of a public
29 official for any health-related reason, or when an employee's child's
30 school or place of care has been closed for such a reason.
31 (3) An employer may permit employees to use any accrued leave,
32 including vacation time or personal leave, while absent pursuant to
33 the provisions of this section. An employer may not require an
34 employee to use paid leave while absent pursuant to the provisions of
35 this section.
36 (4) For employee absences under this section exceeding five
37 consecutive days, the employer may, within 10 days of the employee's
38 return to work, request verification that the employee's unpaid
39 absence was for a specific purpose pursuant to this section.
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 1 (a) If verification is requested by an employer, the employer
2 must provide the employee no fewer than 30 days to obtain and provide
3 any requested verification. An employer's requirements for
4 verification may not result in an unreasonable burden or expense on
5 the employee and may not exceed privacy or verification requirements
6 otherwise established by law.
7 (b) If an employer requires an employee to provide verification
8 from a health care provider identifying the need for use of their
9 unpaid leave for a specific purpose pursuant to this section, the
10 employer must not require that the information provided explain the
11 nature of the condition. If the employer obtains any health
12 information about an employee or an employee's family member, the
13 employer must treat such information in a confidential manner
14 consistent with applicable privacy laws.
15 (5) Any employee absences pursuant to this section are not
16 subject to any type of carrier availability or attendance policy and
17 are separate from any protected leave under Title 50A RCW and section
18 4 of this act.
19 NEW SECTION. Sec. 5. (1) It is unlawful for any employer to:
20 (a) Interfere with, restrain, or deny the exercise of, or the
21 attempt to exercise, any right provided under this chapter; or
22 (b) Discharge or in any other manner discriminate against any
23 individual for opposing any practice made unlawful by this chapter.
24 (2) It is unlawful for any person to discharge or in any other
25 manner discriminate against any individual because the individual
26 has:
27 (a) Filed any complaint or charge, or has instituted or caused to
28 be instituted any proceeding, under or related to this chapter;
29 (b) Given, or is about to give, any information in connection
30 with any inquiry or proceeding relating to any right provided under
31 this chapter; or
32 (c) Testified, or is about to testify, in any inquiry or
33 proceeding relating to any right provided under this chapter.
34 NEW SECTION. Sec. 6. (1)(a) Upon receipt of a complaint by an
35 employee of a railroad carrier, the department shall investigate to
36 determine if there has been noncompliance with this chapter and
37 related rules and issue either a citation and notice of assessment or
38 a closure letter within 90 days after the date on which the
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 1 department received the complaint, unless the complaint is otherwise
2 resolved. The department may extend the period by providing advance
3 written notice to the employee and the employer setting forth good
4 cause for an extension of the period, and specifying the duration of
5 the extension.
6 (b) The department shall send the citation and notice of
7 assessment or the closure letter to both the employer and the
8 employee by service of process or using a method by which the mailing
9 can be tracked or the delivery can be confirmed to their last known
10 addresses.
11 (c) If the department's investigation finds that the employee's
12 allegation cannot be substantiated, the department shall issue a
13 closure letter to the employee and the employer detailing such
14 finding.
15 (2)(a) If the department's investigation finds that a railroad
16 carrier violated this chapter or related rules, the department may
17 order the employer to pay the department a civil penalty. Civil
18 penalties may be assessed as follows:
19 (i) For a class I carrier and any class II or III carrier owned
20 by a class I carrier, up to $5,000 for the first violation, up to
21 $25,000 for the second violation within a three-year period following
22 any previous violation, and up to $100,000 for the third or
23 subsequent violation within a three-year period following any
24 previous violation;
25 (ii) For a class II carrier, up to $1,000 for the first
26 violation, up to $5,000 for the second violation within a three-year
27 period following any previous violation, and up to $10,000 for the
28 third or subsequent violation within a three-year period following
29 any previous violation.
30 (b) The department may, at any time, waive or reduce any civil
31 penalty assessed against an employer under this section if the
32 department determines that the employer has taken corrective action
33 to remedy the retaliatory action.
34 (3) The director may also order other remedies such as back pay
35 and reinstatement, and may increase the fines by rule based on
36 changing economic conditions.
37 (4) The department shall deposit civil penalties paid under this
38 section in the supplemental pension fund established under RCW
39 51.44.033.
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 1 NEW SECTION. Sec. 7. (1) A person, firm, or corporation
2 aggrieved by a citation and notice of assessment by the department
3 under this chapter, or any rules adopted under this chapter, may
4 appeal the citation and notice of assessment to the director by
5 filing a notice of appeal with the director within 30 days of the
6 department's issuance of the citation and notice of assessment. A
7 citation and notice of assessment not appealed within 30 days is
8 final and binding, and not subject to further appeal.
9 (2) A notice of appeal filed with the director under this section
10 shall stay the effectiveness of the citation and notice of assessment
11 pending final review of the appeal by the director as provided for in
12 chapter 34.05 RCW.
13 (3) Upon receipt of a notice of appeal, the director shall assign
14 the hearing to an administrative law judge of the office of
15 administrative hearings to conduct the hearing and issue an initial
16 order. The hearing and review procedures shall be conducted in
17 accordance with chapter 34.05 RCW, and the standard of review by the
18 administrative law judge of an appealed citation and notice of
19 assessment shall be de novo. Any party who seeks to challenge an
20 initial order shall file a petition for administrative review with
21 the director within 30 days after service of the initial order. The
22 director shall conduct an administrative review in accordance with
23 chapter 34.05 RCW.
24 (4) The director shall issue all final orders after appeal of the
25 initial order. The final order of the director is subject to judicial
26 review in accordance with chapter 34.05 RCW.
27 (5) Orders that are not appealed within the time period specified
28 in this section and chapter 34.05 RCW are final and binding, and not
29 subject to further appeal.
30 (6) An employer who fails to allow adequate inspection of records
31 in an investigation by the department under this chapter within a
32 reasonable time period may not use such records in any appeal under
33 this section to challenge the correctness of any determination by the
34 department of the penalty assessed.
35 NEW SECTION. Sec. 8. If any person fails to pay an assessment
36 under this chapter, or under any rule under this chapter, after it
37 has become a final and unappealable order, or after the court has
38 entered final judgment in favor of the agency, the director may
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1 initiate collection procedures in accordance with section 9 of this
2 act.
3 NEW SECTION. Sec. 9. (1) After a final order is issued under
4 this chapter, or any rules under this chapter, if an employer
5 defaults in the payment of: (a) Any amount determined by the
6 department to be owed to an employee, including interest; or (b) any
7 civil penalty ordered by the department under this chapter, or any
8 rules under this chapter, the director may file with the clerk of any
9 county within the state a warrant in the amount of the payment plus
10 any filing fees. The clerk of the county in which the warrant is
11 filed shall immediately designate a superior court cause number for
12 the warrant, and the clerk shall cause to be entered in the judgment
13 docket under the superior court cause number assigned to the warrant,
14 the name of the employer mentioned in the warrant, the amount of
15 payment due on it plus any filing fees, and the date when the warrant
16 was filed. The aggregate amount of the warrant as docketed becomes a
17 lien upon the title to, and interest in, all real and personal
18 property of the employer against whom the warrant is issued, the same
19 as a judgment in a civil case docketed in the office of the clerk.
20 The sheriff shall proceed upon the warrant in all respects and with
21 like effect as prescribed by law with respect to execution or other
22 process issued against rights or property upon judgment in a court of
23 competent jurisdiction. The warrant so docketed is sufficient to
24 support the issuance of writs of garnishment in favor of the state in
25 a manner provided by law in case of judgment, wholly or partially
26 unsatisfied. The clerk of the court is entitled to a filing fee which
27 shall be added to the amount of the warrant. A copy of the warrant
28 shall be mailed to the employer within three days of filing with the
29 clerk.
30 (2)(a) The director may issue to any person, firm, corporation,
31 other entity, municipal corporation, political subdivision of the
32 state, a public corporation, or any agency of the state, a notice and
33 order to withhold and deliver property of any kind when they have
34 reason to believe that there is in the possession of the person,
35 firm, corporation, other entity, municipal corporation, political
36 subdivision of the state, public corporation, or agency of the state,
37 property that is or will become due, owing, or belonging to an
38 employer upon whom a notice of assessment has been served by the
39 department for payments or civil penalties due to the department. The
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 1 effect of a notice and order is continuous from the date the notice
2 and order is first made until the liability out of which the notice
3 and order arose is satisfied or becomes unenforceable because of
4 lapse of time. The department shall release the notice and order when
5 the liability out of which the notice and order arose is satisfied or
6 becomes unenforceable by reason of lapse of time and shall notify the
7 person against whom the notice and order was made that the notice and
8 order has been released.
9 (b) The notice and order to withhold and deliver must be served
10 by the sheriff of the county or by the sheriff's deputy, by certified
11 mail, return receipt requested, or by the director. A person, firm,
12 corporation, other entity, municipal corporation, political
13 subdivision of the state, public corporation, or agency of the state
14 upon wh