Family and Medical Leave

Washington Paid Family and Medical Leave (PFML)

Overview

Starting January 1, 2020, the Paid Family and Medical Leave program (PFML), chapter 50A RCW, allows qualified employees to be paid a portion of their wages, for up to 12 weeks in a 12-month period in most cases, if they miss work for: 

• The birth of a child
• The adoption of a child under 18 years old
• Caring for themselves or a family member stricken with a serious illness or injury
• Certain military connected events
• The death of a child either pre-birth or during the 12 months after birth or placement (leave limited to seven calendar days)

The definition of “family member” in RCW 50A.05.010 includes not only a child, grandchild, grandparent, parent, sibling, or spouse of the employee, but also (effective July 25, 2021) any individual where the relationship creates an expectation that the employee care for that individual, regardless of whether or not they live in the same home as the employee.

This legislation replaced the Washington Family Leave Act, formerly codified at chapter 49.78 RCW.

The federal Family and Medical Leave Act (FMLA) continues to provide leave benefits to local government employees, but the federal law does not apply to employers with fewer than 50 employees, and the leave, if available, is unpaid.

The Employment Security Department (ESD) is responsible for administering the Paid Family and Medical Leave program. Visit paidleave.wa.gov for more detailed information regarding the program.

Employee Responsibilities

Advance Notice

Employees are required to provide notice of their intention to take family and medical leave not less than 30 days before the leave is to begin, or, in emergency situations, as soon as reasonably possible (RCW 50A.15.030).

Medical Certification

Employees are required to provide medical certification when they apply for leave benefits as part of the application process, if the leave request is for medical reasons, in order to gather sufficient information to determine whether the requested leave qualifies for coverage (RCW 50A.15.040). Medical certification is not required for paid leave benefits used in the postnatal period, six weeks following the birth of a child (RCW 50A.15.020(4)).

Employer Responsibilities

Employers, regardless of size, are required to:

• Collect and remit premiums from employees to the ESD (RCW 50A.20.030)
• Report and provide information, such as employees' wages and hours worked, to the ESD on a quarterly basis (RCW 50A.20.030)
• Post the required poster and notices in the workplace (RCW 50A.20.010 and 50A.20.020)

Premium Payments

Employers are required to pay premiums to the state for the program. The premium rate for each year is established by the Employment Security Department based on the family and medical insurance account balance ratio (RCW 50A.10.030(6)). The employee’s wages are only taxable up to the Social Security wage base; any income above that cap is not subject to family and medical leave premiums.

For employers with 50 or more employees, the premium is split between the employer and the employee. Employers may optionally pay for all or part of the employee’s share in addition to the employer’s share.

For small employers with less than 50 employees, the employer is not required to pay the employer portion of the premium but must still collect the employee’s share and pay those funds to the state. If the employer voluntarily elects to pay the employer’s portion, the employer is eligible for grant assistance under RCW 50A.24.010.

While presumably most employers will participate in the state plan, they have an option to use a voluntary plan. If the plan is approved, it may be used, provided the plan’s benefits meet or exceed the benefits provided by the state plan. A list of current employers with an approved voluntary plan is maintained on ESD’s website.

The premiums are remitted quarterly to the state with payment due at the end of the next month following the end of each quarter. You can view reporting deadlines on the ESD website.

Reporting

Employers should be prepared to report the below information for each employee.

• Full Name
• Social Security Number (ITIN if no SSN)
• Zip code of primary work location
• Job title
• Start date
• Wages paid during that quarter
• Total hours worked during that quarter

For further details on reporting, see the ESD Paid Family and Medical Leave Reporting webpage.

Job Protection

The Paid Family Medical Leave program requires employers with 50 or more employees to provide job protection for the duration of the employee’s PFML (RCW 50A.35.010), provided the employee has worked:

• for 12 months or longer; and
• for 1,250 hours (about 24 hours a week) in the year before the first day they take paid leave.

Employees who meet those factors are entitled to be restored to the position they held when the leave began or to an equivalent position with equivalent benefits, pay, and other terms and conditions of employment. However, the protection does not apply to an employee who is among the highest paid 10% of the employer’s employees.

Employers with less than 50 employees are not required to provide job protection for employees taking leave under the program.

Continuation of Health Insurance During Leave

Employers with 50 or more employees must maintain existing health insurance coverage for their employees taking PFML (RCW 50A.35.020). The employee remains responsible for their share of any health insurance premiums while on PFML.

Employees with less than 50 employees are not required to maintain health insurance coverage for their employees while on PFML.

Poster and Notices

Employers must notify employees of the Paid Family and Medical Leave program by posting the ESD required poster in the workplace. The English and Spanish posters provided by the ESD are linked below:

• English: Mandatory Poster
• Spanish: Mandatory Poster

Additionally, when employers become aware that an employee may be eligible for PFML benefits, they must let the employee know they may qualify through a notice. Employers are required to send this notice (see notice created by the state) within five business days.

Federal Family and Medical Leave Act (FMLA)

The federal Family and Medical Leave Act (FMLA), 29 C.F.R. § 825, remains in effect and provides eligible employees with, generally, up to 12 weeks of leave in a 12-month period for:

• The birth of a child or placement of an adopted or foster child.
• The serious health or emergency condition of the employee or close family member.

The FMLA also provides eligible employees with:

• Up to 12 weeks of leave in a 12-month period for qualifying exigencies that arise when the eligible employee’s spouse, son or daughter, or parent is on covered military duty or has been notified of an impending call or order to covered military active duty.
• Up to 26 weeks of leave in a 12-month period to care for a covered service member with a serious injury or illness if the eligible employee is the service member’s spouse, son or daughter, parent, or next of kin.

FMLA leave is unpaid, although it can be substituted for accrued paid leave, such as vacation or sick leave. Typically, the leave is taken during a continuous period, although it can be taken intermittently or on a reduced leave schedule under certain medical conditions. An employee who takes FMLA leave is entitled to maintain health insurance coverage during the leave (29 C.F.R. § 825.209).

The FMLA requires that covered employers display and keep displayed the Family and Medical Leave Act employment poster (29 C.F.R. § 825.300).

Enforcement of the FMLA provisions is administered by the U.S. Department of Labor (DOL) Wage and Hour Division; for more resources including fact sheets, forms, and guidance, see the DOL webpage Family and Medical Leave Act.

FMLA Covered Employers and Eligible Employees

All public agencies, including local governments, are "covered employers" under the FMLA regardless of how many employees they have – unlike private sector businesses which are exempted if they have less than 50 employees (29 C.F.R. § 825.104).

However, to be eligible for FMLA benefits an individual local government employee must meet all of the following criteria (29 C.F.R. § 825.110):

• Has worked for the local government employer for at least 12 months;
• Has worked at least 1,250 hours for the employer in the 12-month period immediately preceding the leave; and
• Works at a location where the employer has at least 50 employees within 75 miles of the worksite.

Examples of Local Policies

Below are examples of policies adopted after the state paid family and medical leave legislation was adopted and that add specific language regarding the program.

• Kitsap County Family and Medical Leave Policy (2020) - Provides language informing employees of the statewide insurance program, including a link for further information to www.esd.wa.gov.
• Mason County Washington Paid Family and Medical Leave Policy (2022) - Offers an overview of the paid family and medical leave program and how to coordinate this leave with other leaves.

Below are examples of policies adopted before the state paid family and medical leave legislation was passed in 2017.

• Tumwater FML Personnel Policy (2017) – A comprehensive standard policy addressing various requirements and processes under the FMLA.
• Mesa Family and Medical Leave Policy (2014) – Although the city is not required to provide its employees with family and medical leave because it employs less than 50 employees, it still provides a comparable 12 week leave benefit to its employees.

Recommended Resources

Washington Paid Family and Medical Leave

The below links are from the WA Employment Security Department (ESD) website:

• Paid Family and Medical Leave – Provides most up-to-date information on paid family and medical leave requirements
• Presentation slides on Paid Family and Medical Leave – Provides a good outline of the act and its benefits

Federal Family and Medical Leave Act (FMLA)

The below links are from the U.S. Department of Labor Wage and Hour Division website:

• Family and Medical Leave Act – Provides a comprehensive list of WHD's fact sheets, FAQs, and forms on the FMLA
• Family and Medical Leave Act Advisor – Interactive tool that provides clear guidance for employees and employers on the FMLA