It is the eve of Washington’s new Paid Family and Medical Leave (PFML) law going into full effect. While many of us think of January 1 as the day we start new diets, commit to new habits, build our vision boards, take our annual polar bear plunge, or perhaps just spend the day quietly recovering from our New Year’s Eve festivities, this year, it is also the day that eligible employees in Washington can start using up to 12 weeks* of paid leave when they need it for personal- or family-related circumstances. Click here to read our July 2019 article discussing this leave.
Although we have known for more than a year now that the law’s requirements are upon us, many of the details have not been fully available and are only just now coming into focus. In fact, the last batch of implementing rules were finalized only in the past couple of weeks. And just days ago, the Employment Security Department (ESD), the agency responsible for administration and enforcement of this benefit, updated its website with the mandatory notice, workplace posting, and additional resources for both employees and employers.
Since this law is new for all of us, and there have been a few surprises in the implementing rules that have been adopted, we thought it might be helpful to share some of the most common questions we have been getting as we work with clients on preparing their policies and practices to comply. While we hope you find these Q&As helpful, be aware that they are not a “one size fits all” solution and may or may not be the right answer for your specific situation. In particular, this law is still new and evolving, and additional guidance and documentation is still being communicated by ESD. We anticipate that more information about how ESD intends to interpret and enforce this law will become available as the year progresses, and may even shift as ESD gets more hands-on experience with administering these benefits. It is also likely that the rules as currently adopted may change as they are tested and challenged. Given that, this resource should not be used in place of specific and timely guidance from your counsel when and if questions arise, so that advice can be tailored to your particular set of facts and circumstances and based upon the most current guidance then available under the new law.
Question #1: If we have done nothing except make the required premium deductions at this point, what should we do now?
- Direct employees to ESD if and when you learn of potential need for leave. The PFML website currently has a special section targeted to individuals and families that provides additional information about this leave and how to apply, including a checklist to help them prepare. It also includes:
a. A guide for those who may want to use PFML for parental bonding time. Click here to access the guide.
b. A guide for those who may want to use PFML for personal or family medical issues. Click here to access the guide.
- Be ready to provide the mandatory notice that employers are obligated to give to employees within five (5) days of learning of the need for leave. The notice was recently finalized and is now available on the website.
Update applicable policies and procedures to address this new protection and how it works with your other leaves and benefits:
a. The new rules permit employers to allow, but not require, employees to “gross up” their benefits through use of available paid leave (sick, PTO, vacation, etc.) to receive additional pay during leave. If so, your leave policies should address this.
b. Consider developing a form/request form to document employee’s choice.
Watch for additional notices and the mandatory workplace postings on the website and be sure to post the required workplace posting in your workplace on or before January 1, 2020. It, too, was just finalized and can be found online here.
Question #2: Our policy currently requires employees to use PTO while on FMLA. Is that still permissible?
Answer #2: Yes, but only if the employee does not choose to use PFML. Under the rules published this year, PFML has to be the employee’s option to use or not, and once an employee elects to use PFML, the employer cannot require the employee to use employer-paid leave (sick, PTO, vacation, etc.). That means that under your current policy, employees would have the option to use PTO before PFML leave, or after. If an employee wants to use PTO during PFML, the current rules would allow them to do so only if it constitutes a supplemental benefit—that is, that the employer allows PTO to be used to make up the difference between the PFML wage benefit’s weekly payment and their regular paycheck.
Employers with these policies may want to update them to address this potential situation and provide additional clarity for their employees. Some options based upon the rules as currently articulated are:
- Allow employees to decide whether to use PTO either before or after any PFML. That could result in circumstances where the employee has more leave than the maximum PFML entitlement, because the PTO is in addition to PFML.
- Allow employees to use PTO as an optional supplemental benefit while on PFML. That is, it would be used to “gross up” the employee’s PFML benefits to the employee’s usual pay.
- Limit use of PTO until after PFML has been exhausted. This could be in combination with the option above (allowing PTO as a supplemental benefit) or not.
- Reduce PTO benefits. Note, however, if the PTO policy is intended to satisfy the Washington Paid Sick Law or other municipal sick leave requirements, it cannot be reduced below the minimum required by the law.
Question #3: Wait, doesn’t FMLA and PFML run concurrently?
Answer #3: Based on the current rules, there will be times these entitlements run concurrently and times they may run separately. For example, if the employer has a 12-week leave for a serious health condition, the employer would administer FMLA just as it has before. At the same time, the employer must also inform the employee about the PFML benefit by providing the required notice within five (5) days. It is then up to the employee to apply for PFML or not. If the employee has no other leave available (for example, PTO or vacation), pursuing PFML benefits would be the only way for that employee to get any wage replacement benefits while on leave. But if the employee decided they didn’t want PFML benefits and took the 12 weeks as unpaid leave, and then later needed more leave, they could indeed trigger those protections, so long as they still met the PFML eligibility requirements.
It seems the rules adopted this year may have added some understandable confusion (and frustration for many) when ESD declared that use of PFML had to be the employee’s option, despite the statutory language that said PFML was to run concurrently with FMLA. That decision opened the door for more potential opportunities for these leaves to run consecutively, rather than concurrently, in ways that could significantly extend employee leaves beyond what most employers had anticipated. We anticipate there may be some legal challenges and perhaps further changes to these rules going forward.
Question #4: We know that intermittent leave is also allowed under PFML, but the new rules state that benefits may not be used for increments less than eight (8) hours in a work week. Could that result in additional leave benefits where the federal FMLA and PFML both apply?
Answer #4: Yes. We understand from ESD that it intends to calculate PFML entitlements similarly to how employers track and apply FMLA: as a 480 hour “bank” of time that is applied as it is used. That means, under the example, the employee may have weeks that the employer counts against the FMLA entitlement, but which do not draw down their PFML benefits because they did not meet the minimum amount of hours. That presents a scenario where an employee’s leave protections could exceed the amounts previously available when only the FMLA applied.
Question #5: Am I only obligated to reinstate the employee if the leave was covered by FMLA, as well?
Answer #5: That is not entirely clear and will likely depend on the specific circumstances of the leave itself. As you may have deduced from some of the answers above, there are some inherent ambiguities or tensions already at play between the statute and some of the rules or interpretations that ESD has thus far articulated. For example, the statute clearly states that PFML is to run concurrently with the FMLA, and that job restoration rights were intended to mirror the FMLA. Many employers have interpreted that to mean that restoration is not required when PFML leave exceeds the FMLA entitlement.
However, examples that ESD has used in their educational materials suggest restoration will not work quite that simply. Instead, we expect ESD will presume that restoration will be provided by employers with more than 50 employees, unless one of the few exceptions outlined in the implementing rules applies. If so, ESD may view restoration as required even when PFML leave exceeded the FMLA entitlement. An employer will then bear the burden to demonstrate that restoration was not required and not otherwise retaliatory, and be prepared to defend itself if and when a denial of restoration is challenged. And do not forget, there are still other potential legal protections that may apply when PFML leave ends just as they do when FMLA is exhausted, such as the obligation to consider additional leave as an accommodation if the condition would qualify as a disability under applicable law.
Due to these and other complexities inherent in these decisions, we strongly recommend employers consult counsel before denying restoration as this law, and the agency’s interpretations of it, continues to develop and evolve.
Again, we hope you find this helpful as you prepare for compliance with PFML. And have a very Happy New Year!
*The law provides for up to 16 weeks when both family and medical leave may be needed in the same year, and up to 18 weeks where the employee experiences a pregnancy complication as well.