WSIA

The 2018 session of the Washington State Legislature gaveled to a close last night after a short, 60-day session marked by the new dynamic of unified Democratic control of both chambers of the Legislature and the Governor's office.

After four years of divided government with a Republican-controlled Senate, the Democrats this year flexed their political muscle on several big-ticket, headline grabbing issues like the state budget, voting rights, gun control, environmental issues, gender-related issues, and the like.

Closer to home for WSIA, a number of measures were considered in workers' compensation and workplace safety. A handful passed into law this year, including a few proposals that had been bottled up in past years. Another handful failed to make it through this year, but can be expected back in one form or another next session.

Here's a run-down of what happened in issues of concern to the workers' compensation and safety community:

What Passed

1. Pension Discount Rate. The Legislature passed a bill to authorize the Department of Labor & Industries to calculate pension reserves for the State Fund and self-insurers according to different annual investment assumptions -- the so-called pension discount rate. While the Department is likely to use this authority to drop its discount rate significantly, it will be able to maintain more of a status quo among self-insurers. Otherwise, the pre-funding cost of newly discounted self-insured pensions would be in excess of $100 million overall. This bill was universally supported by the Department, WSIA, small and large employer groups, and labor unions. It awaits the Governor's signature.

2. PTSD Presumption. The Legislature has also sent to the Governor a bill that would cover, for the first time in Washington, a stress-based condition as an occupational disease, in this case for law enforcement officers and firefighters claiming PTSD. Further, the law would presume that PTSD is an occupational disease for members of the law enforcement officers and firefighters retirement system. The bill is estimated to cost local governments $45 million at the low end to $115 million at the high end in incurred but not reported claims costs, as well as $2.6 million to $7 million annually in new claims. It will also have a nearly $40 million increase in local government retirement system costs over the next 25 years as more disability retirements for PTSD become job-related. WSIA has written the Governor asking for a veto of the bill, or at least the presumption section of the bill. 

3. Hanford Workers Presumption. The Legislature also has created a broad presumption of occupational disease for workers who have spent at least one eight hour shift at various locations on the U.S. Department of Energy's Hanford nuclear reservation outside of the Tri-Cities. The DOE acts as the self-insured employer of workers on the site, whether employees of DOE or contractors on the various construction and hazardous clean-up projects active there. The presumption covers dozens of cancers and related conditions, and contains a unique provision allowing for the refiling of previously adjudicated denials under the new presumption. The Department of Labor & Industries anticipates as many as 1,000 new, complex claims filed per year for the next five years under this act. The Governor has already signed it into law. 

4. Social Security Offset. After failing for a number of sessions, a measure finally passed to eliminate the social security offset for time loss and pension benefits when a worker has already applied for, or is receiving, social security retirement benefits but is injured on the job. Estimated to apply to a few hundred claims, the argument goes that workers injured after returning to the workforce to supplement retirement benefits face drastically reduced workers' comp benefits in the instance of an injury due to the offset. 

5. WISHA Penalties. At the Department of Labor & Industries' request, the Legislature passed a bill to increase the minimum and maximum penalties available under the Washington Industrial Safety & Health Act to conform to recently increased federal OSHA levels. The Department contended the change was necessary for its Division of Occupational Safety and Health to remain "at least as effective" as OSHA and thereby continue as a state program. While the bill is expected to lead to higher penalties on safety citations, it does not replace the recently updated methodology by which DOSH considers monetary sanctions.

If the Governor signs these bills into law, they will go into effect on June 7, 2018, 90 days after the close of the session on March 8th.

What Failed

1. New & Expanded Police & Fire Presumptions. These bills would have added several new cancers, acute cardiac events, and infections to Washington's already expansive firefighter presumption statute, and extend these presumptions to fire investigators and certain of them to law enforcement officers. After a furious session of lobbying by proponents of the measure, as well as groups like WSIA who voiced concerns and objections, the bill ultimately failed after it was voted down by the House Appropriations Committee. Expect it back next year.

2. Hearing Aids. This bill would have mandated the replacement of hearing aids in workers’ comp claims no later than every five years. WSIA voiced some concerns with such a one-size-fits-all policy and suggested the matter by referred to L&I for consideration as part of the medical aid rules and fee schedule. This approach was followed as legislators requested, and L&I has announced, a rulemaking process to consider hearing aid replacement rules.

 3. Independent Medical Exams. This bill would have required self-insureds to deliver medical records for IMEs either electronically or, if not electronically, within ten days of a scheduled IME. The bill also directed L&I to develop access to telemedicine for use in IMEs. WSIA helped amend some flexibility into the 10-day rule as the bill went through the process, while others tinkered with the telemedicine provision. In the end, although it passed the Senate, this bill came to feel too much like a solution in search of a problem, and failed to advance in the House.

4. Mental Health Providers. This bill would have expanded the list of mental health provider types who could provide mental health services on workers’ compensation claims to include masters-level counselors and social workers among others. WSIA voiced concerns. The bill did not advance past the public hearing stage in either chamber.

 5. Intoxication & WC benefits. This bill would have reduced time loss or pension benefits by a percentage of a workers’ intoxication by drugs or alcohol if a workplace injury was caused by the intoxication. It got a hearing in the House Labor Committee but didn’t move further.

6. Off duty conduct. This bill would have made it an unfair labor practice for an employer to take an adverse employment action or discriminate against an employee or prospective employee because that person participates in an activity that is lawful under state law.  Given the likelihood of conflict with various employer safety and drug testing policies, WSIA voiced concerns with the bill.

7. Commercial Janitors. Spurred on by complaints about working conditions from within the commercial janitorial industry, this bill would have required L&I to conduct a study of janitor safety and provide annual progress reports to the Legislature until the study was complete. It didn’t go very far this year. 

If you have any questions or concerns about any of the measures that passed or were considered, please contact the WSIA office.