Employers in Washington state have to comply with a new paid family and medical leave requirement, which went into effect January 1, 2020. Eligible workers in the Evergreen state will be allowed up to 12 weeks of paid leave for:
- Their care
- The care of a family member
- The birth or adoption of a child
Eight states — California, Connecticut, Massachusetts, Oregon, New Jersey, New York, Rhode Island, and Washington — and the District of Columbia have paid family leave programs, according to the National Partnership for Women and Families as of August 2019.
The state program is different from the federal Family and Medical Leave Act (FMLA). While the federal leave program offers 12 weeks of leave, the FMLA only applies to employers with 50 or more employees and leave under the federal program is not paid. The state program does not replace the FMLA.
Compliance with Washington’s program is broad-based. All Washington employers, including out-of-state employers with Washington employees, must participate in the new program. The only exceptions are:
- Self-employed individuals (who may opt-in)
- Federal employees
- Federally-recognized tribes (who may opt-in)
- Employees subject to a collective bargaining agreement until the agreement is reopened, renegotiated, or expires
Instances where an employer may be granted a conditional premium waiver for an employee who is:
- Physically-based outside of Washington
- Employed in Washington on a limited or temporary work schedule
- Not expected to work in Washington for at least 820 hours during a qualifying period
The state program provides about 90% of the employee’s weekly wage with a minimum of $100 a week and a maximum of $1,000 a week.
The program is funded with premiums paid by large employers — those with 50 or more employees — and employees. Small employers are exempt from paying the employer portion, although they may elect to do so, but they do have to collect premiums from employees. Premium collection started early last year.
The program is administered by the Employment Security Department (ESD), the agency that will approve or deny leave and make the payments.
Employers can provide their own paid family and medical program, but it must meet or exceed the benefits offered by the state plan and it must be approved by state authorities.
All Washington employers, including out-of-state employers with Washington employees must participate in the new program.
Employees are eligible for family and medical leave benefits under the state program after working for at least 820 hours — about 16 hours a week — during 4 of the last 5 calendar quarters.
All paid work, whether part-time, temporary, or seasonal, goes toward calculating the 820 hours.
Self-employed individuals are eligible for benefits once they have worked 820 hours and have paid premiums for at least 3 years.
Unlike paid sick leave, those who wish to take advantage of the leave must file a claim with the Employment Security Department (ESD). Payments will come from the ESD.
In order to receive benefits, an employee must:
- File a claim for benefits
- Consent to the disclosure of certain information
- Notify the employer
- Meet certain documentation requirements regarding leave for a serious health condition or military exigency
Employers will receive notice when an employee has filed a claim for benefits and when the department has made the decision to approve or deny the claim.
Employee notice to employers
Employees should provide notice to employers 30 days in advance when they are able to do so. If 30 days’ notice is not possible, employees should give notice when practical.
Employees are allowed up to 12 weeks to:
- Welcome a child into their family through birth, adoption, or foster placement
- Take care of their own serious illness or injury
- Take care of a seriously ill relative, which includes grandchildren, grandparents, and siblings as qualifying family members in addition to spouses, children, and parents
- Prepare for a family member’s pre- and post-deployment activities, as well as time for childcare issues related to a family member’s military deployment
Additional time is available under certain circumstances of up to 16 weeks combined family and medical leave as well as 2 additional weeks (18 weeks) if certain pregnancy complications occur.
An employee can use multiple leave options consecutively, according to an “Employer Toolkit,” so that leave under the state program does not diminish leave under the FMLA or other available leave. In addition, an employer may not require that an employee use other leave before using the state’s paid leave program.
For large employers, the leave must be job-protected, which means that an employee returning from leave is entitled to the same or an equivalent job. Large employers are those with 50 or more employees. Employees must also have worked for the employer for at least 12 months and for at least 1,250 hours — about 24 hours a week — during the preceding 12 months.
Small business grants for compliance
Grants for businesses are available to help in complying with the paid leave. Companies with as many as 150 employees may be eligible for funds. The grants provide up to $3,000 to help cover the costs associated with employees on leave. An employer may apply for up to 10 grants each year.
Most employers are required to continue the employee’s health coverage. If the cost of the benefits is shared, each remains responsible for their share.
Employers cannot retaliate against an employee for requesting or using leave under the program. Double damages are a possibility for willful violations.
While local governments may provide greater benefits to their employees, they are not allowed to put into place a rule, ordinance, resolution, regulation, etc. that alters or amends the program for private employers.
A paid leave law has been on the state’s books since 2007 and was originally supposed to take effect in October 2009, but the law was never implemented and legislation that followed it indefinitely postponed its implementation. Revisiting the issue, the state passed legislation in 2017 that established a paid family and medical leave program. The legislation was passed with “strong bipartisan support,” according to a statement from Democratic Gov. Jay Inslee’s office.
Washington state’s mandatory paid sick leave law went into effect in January 2018 after it received voter approval in 2016. Employees earn paid sick leave 1 hour of paid sick leave for every 40 hours worked under an initiative approved by voters in 2016.
The success of that initiative, and the potential for a future labor-backed initiative on paid family leave, prompted some business groups to negotiate a paid family leave bill, public radio station KNKX has reported.