(1) For the purposes of this section only, "assault" means an act by a motorist that results in physical injury to an employee of the department while engaged in highway construction or maintenance activities along a roadway right-of-way (fence line to fence line, landscaped areas) or in the loading and unloading of passenger vehicles in service of the vessel as a maritime employee not covered under chapter 51.32 RCW or engaged in those work activities as a Washington State Ferries terminal employee covered under chapter 51.32 RCW.

     (2) In recognition of the nature of employment in departmental highway construction or maintenance activities and by the Washington State Ferries, this section provides a supplementary program to reimburse employees of the department for some of their costs attributable to their being the victims of assault by motorists. This program is limited to the reimbursement provided in this section.

     (3) An employee is entitled to receive the reimbursement provided in this section only if the secretary finds that each of the following has occurred:

     (a) A motorist has assaulted the employee who is engaged in highway construction or maintenance along a roadway right-of-way (fence line to fence line, landscaped areas) or service of the vessel as a maritime employee or terminal employee engaged in the loading or unloading of passenger vehicles and as a result the employee has sustained demonstrated physical injuries that have required the employee to miss one or more days of work;

     (b) The assault is not attributable to any extent to the employee's negligence, misconduct, or failure to comply with any rules or conditions of employment; and

     (c) The department of labor and industries has approved the employee's workers' compensation application under chapter 51.32 RCW, or for maritime employees the department of transportation risk management office has approved maintenance and cure benefits under 46 U.S.C. Sec. 688 et seq.

     (4) The reimbursement authorized under this section is as follows:

     (a) The employee's accumulated sick leave days will not be reduced for the workdays missed. The injured worker who qualifies for and receives assault benefits will also receive full standard benefits (vacation leave, sick leave, health insurance, etc.) as if uninjured;

     (b) For an employee covered by chapter 51.32 RCW, for each workday missed for which the employee is not eligible to receive compensation under chapter 51.32 RCW, the employee will receive the full amount of the injured worker's net pay at the time of injury; and

     (c) In respect to workdays missed for which the employee will receive or has received compensation under chapter 51.32 RCW, or under federal maritime law benefits, including the Jones Act, for an employee deemed a maritime employee assigned to work in service of the vessel or a nonmaritime terminal employee covered under chapter 51.32 RCW, the employee will be reimbursed in an amount that, when added to that compensation, will result in the employee receiving no more than full net pay (gross pay less mandatory and voluntary deductions) for the workdays missed.

     (5) Reimbursement under this section may not last longer than three hundred sixty-five consecutive days after the date of the injury. No application for assault benefits is valid nor may a claim be enforced unless it was made within one year after the day upon which the injury occurred.

     (6) The employee is not entitled to the reimbursement provided in subsection (4) of this section for a workday for which the secretary or an applicable designee finds that the employee has not diligently pursued his or her compensation remedies under chapter 51.32 RCW or federal maritime law, including the Jones Act.

     (7) The reimbursement may be made only for absences that the secretary or an applicable designee believes are justified.

     (8) While the employee is receiving reimbursement under this section, he or she will continue to be classified as a state employee, and the reimbursement amount is considered as salary or wages.

     (9) The department shall make all reimbursement payments required to be made to employees under this section. The payments are considered as a salary or wage expense and must be paid by the department in the same manner and from the same appropriations as other salary and wage expenses for the department.

     (10) Nothing in this section precludes the department from recovering the supplemental payments authorized by this section from the assaulting motorist, and that recovery is considered exclusive of recovery under chapter 51.24 RCW.

     (11) If the legislature revokes the reimbursement authorized under this section or repeals this section, no affected employee is entitled after that to receive the reimbursement as a matter of contractual right.

[2002 c 355 § 1.]