Legislature Enacts Paid Family Leave

The state legislature has adopted a paid family and medical leave bill, which, beginning January 2020, provides most employees in Washington State with paid leave to care for their health conditions, the health condition of a family member, or for the birth or placement of an adopted or foster child. This blog will give a quick review of the new legislation and some of the differences between it and the federal Family Medical Leave Act (FMLA).

How Does State Paid Family Leave Relate to the Federal FMLA?

Many (but not all) local governments are already required to follow the federal Family and Medical Leave Act (FMLA), which begs this question: What will the state legislation do that is not already covered by the federal FMLA?

For local governments, there are two important differences between the two laws. First, the new state law applies to all employers while the federal law only applies to employers who have 50 or more employees. Secondly, the state law provides for the partial compensation of employees when they are on leave while the federal law only provides for an unpaid leave.

There are, of course, similarities between the two laws. Both provide that a qualifying employee is entitled to up to 12 weeks of leave to care for his or her serious health condition or for that of a family member, or for the birth or placement of an adopted or foster child. The federal FMLA allows employees to take leave for a qualifying exigency arising out of active military duty or an impending military duty status; the state law does not. However, under the State Military Family Leave Act certain employees may take 15 days of leave when the employee’s military spouse is notified of an impending call to active duty or is on leave from active duty.

In addition, like the federal law, the state act protects the jobs of persons taking leave, provided their employer has at least 50 employees and the employee has worked a minimum of 12 months or at least 1,250 hours in the last 12 months. The employee is entitled to be restored to the position he or she held when the leave began or to an equivalent position with equivalent benefits, pay, and other terms and conditions. However, the protection does not apply to an employee who is among the highest paid ten percent of employer’s employees. If the FMLA requires an employer to maintain existing health benefits during the leave, the state law does as well and, if the plan provides for premium payments by both the employer and the employee, the employee remains responsible for his or her share of the payment.

Who Pays for the Leave?

Under the new state law, an employee’s leave will be paid in an amount based upon a percentage of his or her average weekly wage, measured over the two highest quarters in the qualifying period. The maximum weekly amount of payment is $1,000, to be adjusted annually, and the minimum wage payment is $100 per week (unless the employee’s weekly wage is less than $100, then it is the employee’s full weekly wage.)

The paid leave will be funded through premiums paid by both the employer and the employee.  Initially the total premium will be 0.4 percent of wages, 45 percent paid by employees and 55 percent by the employers (premium rates will be reviewed annually.) The premium will be calculated based upon the wages paid the employee, but limited to the same maximum earnings used for federal social security tax purposes ($127,200 in 2017). Employers may pay the employees’ share of the premium.  Although paid leave will apply to all employees, employers with 50 or fewer employees are exempt from paying the employer share of the premium. An employer may adopt a voluntary plan, if that plan meets certain conditions and is approved by the state Employment Security Department. Local governments may not enact a paid family or medical leave insurance program that designed to alter private employer plans or to provide for local enforcement

Paid Family Leave ≠ Paid Sick Leave

The state Family and Medical Leave Act should not be confused with the state’s new paid sick leave provisions of Initiative 1433. Starting January 1, 2018, all employees who have worked 90 or more days must be provided with sick leave benefits; employees earn sick leave at the rate of one hour for every 40 hours worked.  Paid sick leave can be used for the employee’s or a family member’s mental or physical illness, health condition, or to allow for the diagnosis, care, or treatment of an illness, or to obtain preventative medical care. For additional information on the new paid sick leave requirements, see the blog post Paid Sick Leave and Initiative 1433.

Final Thoughts

The above review only provides a brief outline of some of the provisions of the new act. Many administrative details and limitations on or requirements for the leave are obviously not covered by this article. The act itself is 72 pages long, and implementation rules have not yet been drafted or adopted. While it is going to take some time to become fully familiar with the new act, there is time. Premiums will not begin to be collected until January 2019 and paid leave under the act will not begin until January 2020.

Questions? Comments?

If you have questions about paid family leave or other local government issues, please use our Ask MRSC form or call us at (206) 625-1300 or (800) 933-6772. If you have comments about this blog post or other topics you would like us to write about, please email me at psullivan@mrsc.org.