Several updates have recently been made to Washington’s paid family and medical leave (PFML) law, including amendments to the law as well as rulemaking, which is ongoing. All recent changes will take effect June 9, 2022. While these changes impact employees’ leave entitlements, they do not directly impact employers, as Washington’s PFML program is administered by the state. Previous alerts on the PFML law are copied below for reference.

• Waiting period: Recent rulemaking clarified that the PFML “waiting period” (the first seven consecutive calendar days starting Sunday of the first week in which leave begins) will no longer count against an eligible employee’s leave benefit entitlement. Additionally, no waiting period will apply to medical leave immediately following the birth of a child (child bonding leave and leave for military exigency are already exempted from the waiting period).
• Medical leave presumption for postnatal leave: The first six weeks following the birth of a child will be presumed to be medical leave for a parent who takes PFML after giving birth, with no medical certification required.
• Bereavement leave: Eligible employees may use PFML for bereavement leave for the seven calendar days following the death of a child for whom the employee would have qualified for bonding or medical leave related to the child’s birth or placement with the employee.

WA Paid Family and Medical Leave Temporary Amendment (originally sent 4/25/21)

Washington State has temporarily amended its paid family and medical leave (PFML) law, effective immediately and through June 30, 2023. The temporary amendment creates pandemic leave assistance grants that certain employers can use to help cover the cost of providing PFML for covered employees who did not meet the law’s “hours worked” requirement in 2020.

• Employers/employees may apply for leave assistance grants starting August 1, 2021.
• Grants are available to two categories of employers:
  • Employers with 150 or fewer employees
  • Employers with 50 or fewer employees who have chosen to pay employer-side PFML premiums
• Grant amounts for employers are dependent upon the employer’s circumstances while an employee is absent from work on PFML.
  • Employer hires a temporary replacement worker: $3,000
  • Employer experiences significant additional wage-related costs: $1,000
• For leave with any effective date in 2021 or through March 31, 2022, employees who otherwise would not qualify for PFML may be eligible for a pandemic leave assistance grant if they
  • are ineligible for leave due to reduced hours or a previous involuntary separation from work that was related to COVID-19, and
  • worked 820 hours in 2019, or
  • worked 820 hours in the second through fourth calendar quarters of 2019/first calendar quarter of 2020.
• Employees who have insufficient hours because of a separation from work that was voluntary or due to misconduct are not eligible for pandemic leave assistance grants.
• PFML that is covered by a pandemic leave assistance grant will be subject to the same terms that normally apply to PFML under Washington State law.
• Employees may not receive a grant for any time for which they receive unemployment compensation, workers’ compensation, disability compensation, or any other insurance or federal unemployment benefits.
• Employer grants are only available to those employers whose employees receive pandemic leave assistance grants. Employers who run their own voluntary plans are not eligible for the employer grant program.

WA Paid Family and Medical Leave Amendment (originally sent 4/23/2020)

On March 25, 2020, Washington governor Jay Inslee signed legislation amending the state’s existing paid family and medical leave (PFML) law, which covers nearly all employees in the state. Most of the bill’s changes went into effect on June 11, 2020, although changes to definitions became effective immediately upon the governor’s signature.

• Modified definitions: The new legislation includes updated definitions of several key terms. These changes take effect immediately:
  • typical work week hours: average number of hours worked within the qualifying period (as opposed to “since the beginning” of the qualifying period)
  • child: includes a child’s spouse for purposes of PFML coverage
  • paid time off and supplemental benefit payments: now defined to correspond with amendments regarding supplemental benefit payments
• Exemption for casual labor: The new legislation defines “casual labor” as work that is performed infrequently and irregularly (12 or fewer times per calendar quarter, not on a consistent schedule) that does not promote or advance the employer’s customary trade or business. Workers who perform casual labor will not be entitled to benefits under the law.
• Private right of action: Effective June 11, 2020, employees will be able to file a claim to recover damages against any employer for PFML violations, including the right to recover attorneys’ fees, witness fees, and other costs from the employer. The law includes a right to bring class action claims as well as individual claims. Any complaint filed with the Employment Security Department (ESD) must be withdrawn or resolved before the employee may bring a complaint in Washington State Superior Court.
• New enforcement provisions: While employees may not concurrently have both ESD complaints and lawsuits pending, ESD now has the right to investigate violations within three years of receiving a complaint and issue judgments requiring payment of damages and attorneys’ fees and costs.
• Supplemental benefit payments: The legislation includes clarification that payments for supplemental benefits such as paid time off or vacation time will not reduce an employee’s PFML. However, outstanding child support obligations may be deducted from PFML benefits.
• Conditional waivers: An employer may file an application for a waiver of premium payments for employees who primarily perform work outside the state and are not expected to be employed in the state for 820 or more hours in a year (defined as four consecutive completed calendar quarters).
• Time periods: The waiting period for benefits now begins on the most recent previous Sunday of the week the employee takes the minimum eight hours of leave. Employees may now receive paid time off for any part of the waiting period.
• The state maintains an information page for employees to learn about their PFML benefits, as well as one for employers.