Paid Family & Medical Leave – Still a Work in Progress

 Even though payroll deductions began in January, the details of the law are still being hammered out. Big changes have already been enacted and more are still to come. Here's what we know so far.
​(Updated 7.14.2019 to include finalization of Phase 4.)

​Just when you thought you might have Washington’s new Paid Family & Medical Leave (PFML) program figured out, in early April, Substitute House Bill 1399 was signed into law, fundamentally changing the program. In addition, the Employment Security Department has been working behind the scenes on final rulemaking.  A summary of the moving parts is included, but don’t get too comfortable. These may continue to change as the Employment Security Department (ESD) winds its way through the Phases of implementation.

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Substitute House Bill 1399 – stacking allowed
One of the biggest changes is that this newly signed bill specifies an employee can simultaneously receive both Washington State Paid Family & Medical Leave (PFML) benefits and paid leave from their employer. This could be in the form of vacation, sick leave or other paid time off.  The bill stipulates that together the benefits cannot provide more than 100% of earnings. Overall, this change has been well-received since the $1000 maximum weekly PFML benefit generally falls short of actual pay for many employees in Washington. Allowing paid time off to stack on top of PFML will allow more employees to actually afford to take the time off that they need.

One drawback of this new rule for employers is the effect of WAC 192-610-075 (see Phase 4 below – Paid Time Off). Under Phase 4 proposed rulemaking, employers cannot require employees to take paid leave prior to or while receiving PFML. This could result in an employee taking PFML for the maximum duration, then dipping into their paid leave in order to take additional time off of work.  

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Rulemaking - Phase 3 Finalized
Phases 1 and 2 were finalized near the end of 2018, providing guidance surrounding premiums, employer responsibilities, penalties, small business assistance and voluntary plan rules.  Phase 3 was finalized in early 2019, providing benefit application and benefit eligibility guidelines. Here are some of the biggest changes: 

• Definition of Parent – New sections have been added which expand the definition of parent beyond that of other typical benefit programs, to include a “de facto parent” and “in loco parentis” individuals. A de facto parent is defined as “…an adult who has fully and completely undertaken a permanent, unequivocal, committed and responsible parental role in a child’s life where the natural or legal parent consented to and fostered the parent-like relationship.” An individual stands in loco parentis when “…the individual acts in place of a parent, intentionally takes over parental duties and is responsible for exercising day-to-day care and control fulfilling the child’s physical and psychological needs.”
• Notice of Leave – In the case of foreseeable leaves, an employee must provide their employer with 30-days’ written notice. Otherwise, the employee must provide written notice “as soon as is practicable” and updates the employer regarding leave changes. Of note, “written notice” can include text messages and emails.
• Documentation – The rules now spell out what documentation must be provided for the different types of leave allowed under the law.
• Workweek Hours - For salaried employees, the number of hours per week are assumed to be 40, regardless of actual hours worked. For other employees, typical workweek hours are determined by dividing the sum of all hours reported in the qualifying period by 52.
• Maximum Benefit Length – The maximum duration of PFML cannot exceed 12 times the typical workweek hours during a claim year (which can in some instances be extended to 14, 16, or 18 times typical workweek hours). Based on this wording, intermittent leave will be allowed.

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Rulemaking - Phase 4 Finalized
While Phase 4 purports to be about continuation of benefits and fraud, there are many more rules that will be of concern to employers.  

• Workweek – Regardless of how an employer calculates their workweek, PFML defines a workweek as Sunday through Saturday.
• Continued Claim – An employee will need to refile for PFML once they have gone without filing a PFML for four consecutive weeks. 
• Paid Time Off – Employers will not be allowed to require employees to take paid vacation, paid sick or other paid time off before, in place of, or concurrently with PFML benefits. This may result in leaves extending beyond the PFML duration. In addition, this is counter to Federal Family and Medical Leave Act (FMLA) rules, where applicable employers are able to require an employee to use paid leave to be used concurrently with FMLA leave. If this proposed rule becomes final, and a leave qualifies under both FMLA and PFML, the employer will not be allowed to require the employee to use paid leave concurrently.
• Minimum Claim Duration - An employee would only qualify for a week’s PFML if they miss eight consecutive hours of work in a workweek.  If an employee takes intermittent leave, they will not qualify for PFML unless they miss eight consecutive hours of scheduled work within the claim week.   
• Fraud – Employees will be subject to harsh penalties for knowingly and willfully making false statements or failing to report material facts. RCW 50A.04.045(3) outlines these, with just the first offense resulting in a 15% penalty and a disqualification for benefits during the next 26 weeks.   

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Rulemaking - Phase 5 still to come
Phase 5 outlines job protection, benefit overpayments, and “miscellaneous” items.  The final proposed rules will not be published until May 21st.

• Full Time Faculty Employees – An employer would report 35 hours per week for a full-time faculty member regardless of the actual hours they work (this is lower than the 40 hours required for salaried employees). 
• Part Time Faculty Employees - Part-time faculty hours will be more complicated, reported as a percentage of full-time hours. Hours reported will equal the instructor’s hours worked divided by full-time hours (deemed by the school) times 35 hours (this rule’s full-time definition of faculty hours). Here's how it works:

1. Assume a technical college deems a teaching workload of 15 hours to be full-time
2. An instructor teaches a workload of 12 hours per week (including class and lab hours)
3. Hours worked = 12 / 15 x 35 = 28 hours

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​Rulemaking - Phase 6 on the horizon
Phase 6 draft rules have not been provided as of yet. The Employment Security Department notes that topics will include appeals and any necessary changes due to the 2019 Legislative Session.   

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​The Bottom Line
Washington State’s Paid Family & Medical Leave is still a work in progress. To provide your input, consider attending an upcoming Rules Meeting. We will continue to provide updates as they are proposed, drafted and finalized by the State.  In the meantime, I recommend visiting the PFML “Questions” site to see what people are asking, and more importantly, what answers they are being provided.

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