Safety and Health Discrimination Protections
Public Hearing on Proposed Rules
Wednesday, June 8, 2022
To join on your computer or mobile app (Zoom):
To join by phone (audio only):
Meeting ID: 876 0856 7723
The hearing will start at 9:00 a.m. and continue until all oral comments are received.
L&I encourages the submittal of written comments, due by 5:00 p.m. on June 15, 2022.
Public hearings held virtually have proven effective in allowing greater public access, eliminating the burden of physical travel, and maintaining public safety. Accordingly, this public hearing will not be held in person.
The purpose of this proposal is to amend chapter 296-360 WAC, Discrimination, in response to Engrossed Substitute House Bill 1097. ESHB 1097 made changes to the Washington Industrial Safety and Health Act (WISHA), which protects workers from discrimination or retaliation for exercising their rights to a safe and healthful workplace. The changes to RCW 49.17.160 under ESHB 1097 go into effect on July 1, 2022. Under ESHB 1097, L&I’s Division of Occupational Safety and Health (DOSH) has the authority to issue administrative orders when investigations of discrimination complaints find sufficient evidence that an employer violated RCW 49.17.160. The proposed rule updates include a process for issuance of citations and notices of assessments to order relief to the worker and penalties to the employer and a process for employer and employee appeals of the citation and notice of assessment. Other updates under the proposed rule needed to implement ESHB 1097 include changing the time to file a safety and health discrimination complaint from 30 to 90 days and clarifying the definition of discrimination. The proposed rules also make changes to align with Washington state case law specific to the “substantial factor” causation test; where a violation of RCW 49.17.160 occurs when an employee’s engagement in protected activity was a substantial factor in the employer’s decision for the adverse action. The current rule is based on the Occupational Safety and Health Administration’s (OSHA) interpretative rules applying federal case law to discrimination under Section 11(c) of the Occupational Safety and Health Act. The change to apply Washington case law is necessary to ensure DOSH applies the appropriate standard used by Washington courts in its investigations and orders issued under ESHB 1097.