Three Notable Changes to Washington Paid Family and Medical Leave

Before any employees have received benefits under Washington’s Paid Family and Medical Leave (WA PFML) program, the law has been amended. On April 3rd, Governor Inslee signed Substitute House Bill 1399, (“Amendment”) amending the  WA PFML law to in order to make several changes and clarifications. Three notable changes include:

  • ability for employees to use PTO, vacation, and sick leave to top up their WA PFML benefit
  • clarifying language, such as to the benefit payment calculation provision and the waiting period; and
  • employer waivers to eligibility for a voluntary plan and to the employee notice requirement.

Below is more information on these three changes:

Ability to use PTO, Vacation, or Sick Leave

Prior to last week’s Amendment, employees could not use sick, vacation, PTO, or other employer-provided paid benefit such as paid parental leave, to top up a WA PFML benefit. Such employer-provided pay benefits are known under the Amendment as a “supplemental benefit payment.”   Under the Amendment, employees have the choice to use the supplemental benefits to top up WA PFML benefits or retain those benefits for use later. Unlike the federal Family and Medical Leave Act (FMLA), employers cannot require employees to use their supplemental benefit payment during WA PFML, which leaves the potential for stacking WA PFML with an employer provided supplemental benefit to extend paid leave, depending on the employer benefit plan. Under the original WA PFML law, employees were not allowed to receive a supplemental benefit payment to top up WA PFML, so while the new law provides more flexibility for topping off benefits, it hasn’t eliminated the issue of stacking.

Clarification to Benefit Payment Calculation and Waiting Period

Benefit Calculation:
The Amendment, while not making any substantive changes to the benefit calculation, has provided clarifying language for ease of understanding.

Waiting Period:
The Amendment clarified that the seven-day waiting period is seven consecutive calendar days, not seven calendar days of leave. The waiting period begins on the day when an otherwise eligible employee takes leave for the minimum eight-hour claim duration and then runs for seven consecutive calendar days from that date.

Employer Permitted Waivers

While not expressly stated in the original version of the Act, The Amendment makes clear that the employer can waive certain permissions granted it under WA PFML, such as the employee notice provision and eligibility under a voluntary plan. Specially, the amendment allows employers to waive the following statutory provisions to allow employees to receive benefits:

  • without providing at least 30 days’ notice, when the leave was foreseeable;
  • without providing notice as soon as practicable for leave starting in less than 30 days;
  • without the employer’s attestation, on the initial application, that proper notice was provided; and
  • under an employer’s voluntary plan, without meeting the 340 hours of employment requirement

Background on WA PFML

In 2017 Washington passed the original WA PFML law authorizing a paid family and medical leave (PFML) program to provide partial wage replacement to employees on leave for specified family and medical reasons such as to care for a family member, bond with a new child, employee health condition, and military exigency. Employees are eligible for benefits after working at least 820 hours in a qualifying period. Premium collection began January 1, 2019, and benefits are payable beginning January 1, 2020. The Washington Employment Security Department (WA ESD) administers the program.

In addition to the three notable changes mentioned above, the Amendment made other clarifications and updates, such as allowing employees to appeal an employer’s decision under a voluntary plan and updates to the definition of “wages,” removing reference to the unemployment compensation definition of wages. For a full review of the changes, information on the Amendment, and background, refer to the Washington State Legislator’s website.

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