Pop Quiz: Paid Family Medical Leave and the Family Medical Leave Act
February 6, 2023
Category: Leave Policies
Various life circumstances arise requiring employees to take either short-term or extended leave from employment. Thankfully, there are both state and federal laws that provide for extended leave, job protection, and other benefits for eligible public employees.
This blog and pop quiz will cover some of the basics of Washington’s Paid Family and Medical Leave (PFML), Chapter 50A RCW, and the federal Family Medical Leave Act (FMLA), 29 C.F.R. § 825.
Passed by the Washington State Legislature in 2017, PFML allows an eligible employee to take up to 12 weeks paid leave (longer in some circumstances) in a 12-month period if a serious health condition prevents them from working or if they need time to care for a family member, bond with a new child, mourn the death of a child, or spend time with a family member preparing for or returning from military service overseas. See Employment Security Department’s Paid Family and Medical Leave website.
The federal FMLA provides eligible employees with, generally, up to 12 weeks of unpaid 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, or for qualifying exigencies related to a foreign military deployment or to care for service members. See the U.S. Department of Labor’s Family and Medical Leave Act website for more information.
The interplay between the state PFML and the federal FMLA laws can be confusing. At the basic level:
- PFML is paid leave, whereas FMLA leave is not. PFML provides up to 90% of an employee’s weekly pay — up to the maximum weekly benefit amount (which is updated annually).
- PFML is available to eligible employees regardless of the size of the employer, whereas FMLA leave is available only for eligible employees working in organizations with 50 or more employees. Note that some PFML benefits are only available at larger employers (greater than 50 employees) where they have worked for a minimum amount of hours/duration. See the next two bullets.
- Both laws provide job protection to eligible employees taking leave from organizations with 50 or more employees, provided the employee has worked for the employer for 12 months or longer and at least 1,250 hours before the first day of leave. See 29 C.F.R. § 825 and RCW 50A.35.010.
- Both laws provide that covered employees are entitled to maintain their health coverage while they are on leave from organizations with 50 or more employees, provided the employee has worked for the employer for 12 months or longer and at least 1,250 hours before first day of leave. See 29 C.F.R. § 825.209 and RCW 50A.35.010.
The pop quiz below explores some additional nuances of PFML and federal FMLA leave.
Question 1: Eligibility Requirements
Both PMFL and federal FMLA have the same employee eligibility requirements.
False. To qualify for federal FMLA leave, an employee must have:
- Worked for an employer for at least 12 months (does not have to be consecutive);
- Worked at least 1,250 hours in the 12 months immediately preceding the leave; and
- Worked at a location where employer has at least 50 employees within 75 miles of the worksite.
To qualify for PFML, an employee must have worked 820 hours or more (RCW 50A.15.010), at one job or combined from multiple jobs, within the "qualifying period," which is defined as:
- The first four of the last five completed calendar quarters; or
- The last four completed calendar quarters.
Question 2: Employer Role in PFML
The local government employer certifies whether an employee is eligible to use leave under the PFML.
False. The state Employment Security Department (ESD) administers PFML and determines employee eligibility in any given circumstance. The employee receives their wage replacement benefit directly from ESD. The employee must provide notice to the local government employer of their intent to take leave not less than 30 days (or as soon as reasonably possible in the case of emergencies, see RCW 50A.15.030), but otherwise the employer does not have a role in certifying leave.
Note that the employer does have some roles and responsibilities, such as posting about the availability of the PFML benefits, calculating and collecting employee premiums, and paying premiums to the ESD and reporting employee hours and wages. See RCW 50A.20.010 - .030.
Question 3: Who Decides When PFML is Taken?
A local government employer may require that an eligible employee take PFML.
False. A local government employer may not decide when or if an employee uses their PFML.
Note that an employee could take federal FMLA leave without invoking their benefits under the PFML, and then later take PFML for the same or different qualifying condition/situation. The employee could take PFML before the FMLA leave expires (i.e., overlap leave), immediately following, or later that same year.
Question 4: Who Determines When FMLA Begins?
A local government employer should start the clock on an employee’s federal FMLA leave and benefits once they learn the employee is taking leave for qualifying circumstances.
True. As summarized in this 2019 opinion letter from the U.S. Department of Labor (DOL), an employer must notify the employee within five days and start the clock on an eligible employee’s federal FMLA leave once the employer is aware that an employee qualifies for FMLA. From the opinion:
[W]hen an employer determines that leave is for an FMLA-qualifying reason, the qualifying leave is FMLA-protected and counts toward the employee’s FMLA leave entitlement. Contrast this with PFML where only the employee may invoke its benefits and start the clock.
Note that employment policies may still require or encourage employees to utilize accrued paid leave (separate from PFML) to cover any part of an unpaid federal FMLA leave period. The paid leave provided by the employer will run concurrently with the unpaid FMLA leave.
Question 5: Statutory Obligations of Small Employers under FMLA
A local government employer with fewer than 50 employees has no statutory obligations under the federal FMLA.
False. All public agencies, including local governments, are "covered employers" under the federal 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).
While all local governments are "covered employers" regardless of size, employees working for small public agencies under 50 employees are not eligible for FMLA leave and benefits due to the requirement that the employee work at a location where the employer has at least 50 employees within 75 miles. Nevertheless, the FMLA requires that covered employers display and keep displayed the Family and Medical Leave Act Poster (29 C.F.R. § 825.300).
Question 6: Intermittent Leave
Both PFML and federal FMLA leave may be taken intermittently.
True. PFML may be taken in 8-hour increments or more (see the ESD webpage: How Paid Leave Works). Federal FMLA may be taken in as small as 15-minute increments if the employer tracks leave in such a manner. From the DOL Factsheet #281:
FMLA leave may be taken in periods of whole weeks, single days, hours, and in some cases even less than an hour. The employer must allow employees to use FMLA leave in the smallest increment of time the employer allows for the use of other forms of leave, as long as it is no more than one hour. If an employer uses different increments for different types of leave (for example, accounting for sick leave in 15-minute increments and vacation leave in one day increments), the employer must allow FMLA leave to be used in the smallest increment used for any other type of leave.
Question 7: Wage Replacement and Retirement Credit
Wage replacement provided by ESD under the PFML is treated as wages for purposes of hours reported to the Department of Retirement Services (DRS) and accrual of service credit.
False. The PFML wage replacement benefit does not count as wages for purposes of DRS retirement credit. See DRS Email 19-022 on retirement service credit and the PFML.
That’s it for today’s quiz! To further flex your “sick and family leave law” muscles, take this 2019 family leave and sick leave pop quiz written by now-retired MRSC Legal Consultant, Paul Sullivan. Additional resources can be found on MRSC’s Family and Medical Leave and Leave Laws and Policies webpages.
MRSC is a private nonprofit organization serving local governments in Washington State. Eligible government agencies in Washington State may use our free, one-on-one Ask MRSC service to get answers to legal, policy, or financial questions.