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

  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.

  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.

  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

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