What Employers Should Know About Washington's Paid Family Medical Leave Program in 2022

Many employers and employees remain perplexed by the complexities of Washington's Paid Family Medical Leave (PFML) program. While there are some similarities to other leave entitlements, such as the federal Family Medical Leave Act (FMLA), there are some distinct differences that create challenges for employers to administer leave programs.

This advisory highlights some key considerations to help employers navigate PFML leave and provides an overview of recent amendments and rulemaking. Amendments go into effect on June 9, 2022, and employers should review and update their policies now to ensure continued compliance.

Overview of PFML and Recent Amendments

Under Washington's PFML program, eligible employees are entitled to up to 12 weeks of leave and partial wage replacement for their own serious health condition (medical leave) or for family care (family leave), up to 16 weeks of combined family and medical leave, and up to two additional weeks for certain pregnancy complications. Employees may also take leave for certain qualifying military exigencies.

Unlike federal FMLA where employees interact directly with their employers to determine eligibility, employees apply directly to the Washington Employment Security Department (ESD) to request leave, and the ESD administers the PFML program and determines employee eligibility.

2022 Amendments and Recent Rulemaking

Governor Inslee recently signed into law Second Substitute Senate Bill 5649 (SB 5649), which takes effect on June 9, 2022. The amendments include: (1) a provision permitting bereavement leave for parents following the death of a child in certain limited circumstances; (2) designation of postnatal leave as medical leave for birth parents; (3) expiration of the union employee exception to PFML; and (4) a requirement that a list of employers with voluntary plans be published on ESD's website.

Rulemaking is ongoing for the amendments at this time. There was also recent rulemaking regarding the waiting period for benefits. The key updates and amendments are highlighted below:

• Bereavement Leave: Pursuant to SB 5649, eligible employees will be entitled to use PFML for the seven calendar days following the death of a qualifying family member if the employee: (1) would have qualified for family leave to bond with the child and/or (2) would have qualified for medical leave related to the expected birth or placement of a child.¹
• "Postnatal Leave" Is Presumptively Medical Leave: SB 5649 clarifies that for a parent giving birth, the first six weeks after birth will be presumed to be medical leave and a medical certification is not required for the postnatal period.² The intent behind the amendment is that it may help streamline ESD's leave application and approval process for postnatal medical leaves.
• Waiting Period Clarification: In addition, rulemaking clarifies the waiting period does not reduce the PFML benefits available to employees. Further, the waiting period will not apply for birth parents immediately following the birth of a child (there is already no waiting period for family bonding leave).³

In addition to the recent amendments, here are 10 key considerations Washington employers should be aware of to help navigate PFML:

• 1. Employers Must Notify Employees of PFML Rights
  Employers must notify employees of their PFML rights using the state-provided PFML Statement of Employee Rights within:
  
  • Five business days after an employee has been absent for seven consecutive days due to family or medical leave; or
  • Five business days after the employer has received notice that the employee's absence is due to family or medical leave, whichever is later.⁴
• 2. Employees Must Notify Employers of the Need for Leave
  If an employee plans to take PFML leave, the employee must provide notice to their employer. If the leave is foreseeable, the employee must provide 30 days' written notice.⁵ If unforeseeable, the employee must provide written notice as soon as is practical.⁶
  
  Significantly, "[t]he notice must contain at least the anticipated timing and duration of the leave."⁷ So not only are employees required to notify employers of the intent to take PFML leave, they must also provide information regarding the timing of the leave which includes the planned leave schedule for intermittent leave (if applicable) as well as the time period the employee plans to use leave.
  
  If an employee fails to give required notice, their PFML benefits may be denied by the ESD for the period of time it was insufficient.⁸ However, it is the ESD, not employers, who make this determination, and employers should not unilaterally deny PFML leave.
• 3. Employers Cannot Designate PFML Leave
  Employers cannot require that employees apply for PFML leave or designate PFML leave. Employees have the choice to apply for PFML leave and are not required to apply for PFML even if they are taking leave for a PFML-qualifying reason.
• 4. The ESD Notifies Employers of PFML Applications and Approvals
  Employees must apply directly to the ESD for PFML leave benefits. Employers receive fairly limited information from the ESD related to employees' PFML applications. The ESD provides notice of an employee's application and also provides a second notification that indicates if the employee's application has been approved or denied, and the applicable leave period.⁹
  
  Notably, the leave period is typically the claim period the employee is eligible to take the leave and not the actual duration of the leave, which can lead to confusion. No information about PFML benefit amounts is provided to employers by the ESD.
  
  The limited information provided by the ESD makes it difficult for employers to understand when leave ends or is exhausted and when the employee will return to work. This makes it challenging to determine if and when to engage in the interactive process if additional leave or other accommodations are needed. It also makes it challenging to coordinate supplemental benefits, which are discussed in more detail below.
• 5. PFML Can Be Used on an Intermittent Basis
  Employers should be cognizant that employees may opt to take approved PFML either on a continuous or intermittent basis, regardless of the qualifying reason. In contrast to FMLA leave, employer approval is not required for intermittent leave, including for child bonding.
  
  However, the minimum use increment for PFML use is eight consecutive hours during any claim week.¹⁰ Again, employees must provide notice that they intend to use PFML intermittently, including the anticipated schedule of such leave.
• 6. Employers Can Offer "Supplemental Benefits" to Top Off PFML Benefits
  Employers may (but are not required to) designate other forms of paid time off as "supplemental benefits," which employees may opt to use to "top off" their PFML benefits and make up the difference between the partial wage replacement provided by PFML and their regular wages. Supplemental benefits may include salary continuation, paid time off, vacation leave, or sick leave.¹¹
  
  Significantly, employers cannot require employees to use any offered supplemental benefits while on PFML leave—it is the employee's choice. This is different from the FMLA where employers may require the use of certain paid time off benefits during FMLA leave. Employers should update applicable time off and leave policies to identify which benefits are designated as supplemental benefits.
• 7. Benefits Continuation is Required in Some Circumstances
  Employers must continue to provide health benefits to employees taking PFML if there is at least one day of concurrent PFML use with leave taken under the FMLA.¹² If PFML leave does not overlap with at least one day of FMLA leave, there is no obligation to provide benefits continuation during PFML leave (unless otherwise required by applicable law).
  
  Significantly, this means that there may be circumstances where benefits continuation obligations could extend for significant periods of time. Employers should review their insurance plans to ensure that the plans provide for the continued coverage required by law.
• 8. Some Employees May be Entitled to Job Restoration
  Some individuals who take PFML leave may be entitled to job restoration. Employers with 50 or more employees must reinstate an employee who returns from PFML to the same or equivalent job if the employee worked for the employer for at least 12 months and worked at least 1,250 hours during the 12-month period prior to taking PFML.¹³ This is different than the FMLA, which provides job protection to all employees who qualify for FMLA leave.
  
  In addition, regardless of PFML job restoration rights, an employee may also be protected under other federal, state, or local laws.
• 9. Retaliation is Prohibited
  Employers are strictly prohibited from taking any adverse action against employees who request or take PFML leave. Notably, even if an employee is not entitled to job restoration, an adverse employment action following an employee's application for or actual use of PFML leave could give rise to an inference of retaliation.
• 10. Other Leaves May Run Concurrently with PFML Leave
  Employers should carefully assess if employees taking PFML leave are also eligible to concurrently take other leaves of absence. Notably, employees may be eligible to take PFML concurrently with federal or state leave, including FMLA, where qualifying reasons overlap.
  
  This can pose challenges because there may be different rules related to the use of paid time off while on leave, different job protections and different benefit continuation requirements.

Please see our other PFML advisories here and for more information on PFML, please contact a Davis Wright Tremaine employment attorney.

FOOTNOTES

1  RCW 50A.05.010(10)(d)
2  RCW 50A.05.010(19) and RCW 50A.15.020(4)
3  WAC 192-500-185
4  WAC 192-540-010
5  WAC 192-600-005
6  WAC 192-600-010
7  WAC 192-600-020
8  WAC 192-600-025
9  WAC 192-610-060
10 WAC 192-620-005
11 WAC 192-500-180
12 WAC 192-700-020
13 WAC 192-700-005