Washington State Family and Medical Leave Program Update
In 2017, Washington’s Paid Family and Medical Leave (PFML) program was enacted to provide partial salary replacement to employees on leave for specified family and medical reasons. The state-administered PFML fund provides qualified employees with the following maximum leave amounts per calendar year: (a) up to 12 weeks of paid family or medical leave, (b) up to 16 weeks of leave when the leave family and medical is used in and (c) an additional two weeks leave due to pregnancy-related complications. Due to concerns about the potential insolvency of the PFML fund, the Washington State Legislature recently passed Second Senate Bill 5649 (SB 5649), which provides for an audit, the hiring of a financial consultant to advise on solvency issues and a task force to develop recommendations for 2023 legislative changes. In addition to these accountability measures, SB 5649 also changed some of the benefits and requirements of PFML. These 2022 amendments, which generally took effect on June 9, 2022, are detailed below.
DEATH LEAVE ADDED AS A NEW BENEFIT CATEGORY
The 2022 amendments expand the reasons for paid leave to include bereavement in specific circumstances. Employees can now use paid family leave during the seven calendar days following the death of a child for whom the employee would have been entitled to sick leave for the birth of the child or would have been entitled to family leave for create a bond with the child after birth or placement.
LEAVE DURING THE POSTNATAL PERIOD WILL BE CLASSIFIED AS MEDICAL LEAVE
The 2022 amendments clarify that leave taken during the first six weeks after birth (the postnatal period) is presumed to be sick leave. Employees eligible for benefits based on incapacity due to pregnancy or postnatal care will be presumed to use paid medical leave benefits, unless the employee elects to use paid family leave benefits during this period. In addition, the 2022 amendments modify medical certification requirements so that employees using paid sick leave during the postnatal period do not have to provide certification of a serious medical condition.
CHANGING THE WAITING PERIOD
The 2022 amendments fix confusion surrounding the seven-day waiting period before benefits can be made available. Initially, the amendments clarify that the waiting period will not reduce PFML benefits available to employees. In addition, the waiting period no longer applies to sick leave taken on the occasion of the birth of a child.
EXPIRY DATE OF COLLECTIVE BARGAINING EXEMPTION
When adopted in 2017, the PFML program provided an exemption for employees subject to a collective bargaining agreement (CBA) in effect on October 19, 2017 until the CBA is reopened or renegotiated or the parties to the CBA choose to be subject to the law. The 2022 Amendments provide that this CTC exemption will expire on December 31, 2023.
WHAT THIS MEANS FOR EMPLOYERS
Employers should take this opportunity to audit and revise their PFML manuals and policies to ensure compliance with legal requirements. This includes the addition of bereavement leave as an additional category of benefit eligibility under the MLTP program. In addition, employers with employees who fell under the CBA’s exemption from PFML requirements within the past six years should begin planning and communicating about coverage for those employees. Finally, to the extent employers have concerns about the PFML program, they should contact the Legislative Working Group in the hope that these concerns can be addressed in remedial legislation in the 2023 session.
Copyright 2022 K&L GatesNational Law Review, Volume XII, Number 164