by Marti Cardi, Esq. - Senior Compliance Consultant and Legal Counsel
September 17, 2018
I wish I could receive Frequent Flyer miles for all the “trips” I am making back and forth between the East and West Coasts, covering developments in state paid family and medical leave programs. The most recent news is 2 tidbits from Washington State.
Voluntary Plans Now Being Accepted. All employers must provide paid family and medical leave benefits to their employees, but the state provides the option of using the state plan or a “voluntary plan” administered by the employer or a third party administrator or insurer. A voluntary plan must be approved by the state before it is effective. As of September 17, the state is accepting applications for approval of voluntary plans. Employers can apply and file their plans for approval here. That site also provides lots of helpful information for employers considering a voluntary plan. An employer must complete the application, submit a copy of its voluntary plan, and pay a $250 fee before the application will be considered complete. Because the process is brand spankin’ new, the ESD is not yet providing information regarding how long it will take to get plan approval (or rejection).
Matrix will offer administration of voluntary plans for our clients. We’re developing a sample voluntary plan that our clients may choose to use, with appropriate employer-specific provisions. We anticipate this will be ready for client review by approximately October 1 – but it is a detailed process so bear with us as we work to develop a top-notch plan.
Proposed Phase Three Rules Released
The state has released the draft rules for Phase 3 of the state’s PFML rulemaking process. Sounds dry – and it is – but these rules, once finalized, give employers and TPAs like Matrix more detailed information regarding how to comply with the Washington paid family and medical leave law.
The Employment Security Department (ESD) is charged with developing the rules and, ultimately, administering and enforcing the law. We wrote about the rules in a prior blog post. At that time ESD was only planning on 4 rulemaking phases. This has now been expanded to 6 phases. The details change periodically as circumstances necessitate. You can keep an eye on the timeline – if you care to! – on the state’s PFML Rulemaking site, or you can watch this blog for updates. All proposed and final rules are also available on that page.
The Phase Three Proposed Rules cover benefit applications and benefit eligibility. Here are some highlights:
- Definitions:
- Under the WA PFML statute, parents who are entitled to take paid leave include “de facto” parents and
those in loco parentis to the child. A “de facto parent” is someone who has fully committed to the parental
role with the consent of the legal parent. Someone in loco parentis to a child has intentionally taken over
parental duties and is responsible for the child’s well being. - A “claim year” is the 52-week period starting on the date of birth or placement of a child, for bonding leave,
and on the date a completed leave application is filed for all other types of family and medical leave.
NOTE: This appears to create a situation where, for foreseeable leave other than bonding, the employee only
has 11 months in which to take the leave, since the claim year includes the 30-day advance notice period.
- Under the WA PFML statute, parents who are entitled to take paid leave include “de facto” parents and
- Employee notice to employer:
- An employee must give notice of the need for leave at least 30 days in advance for foreseeable leave, and
as soon as practicable when the employee becomes aware of the need for leave less than 30 days in advance.
Generally this means notice the same or next business day once the employee is aware of the need for leave,
but the employer should take into account the particular facts of the employee’s situation. - The employee’s notice to the employer must be in writing (hallelujah!) and must include the anticipated timing
and duration of the leave. Under the proposed rule, written notice includes “handwritten, typed, and all forms
of written electronic communications, such as test messages and email.” - If an employee provides late notice (presumably without extenuating circumstances) the employee’s benefits
can be denied for the period of time the notice was late. NOTE: The proposed rule does not specify exactly
what this denial of benefits means: Does the time off still count toward the employee’s paid leave entitlement
to shorten the remaining time and benefits available, or is it more of a delay of benefits, with the employee still
able to take the full 12 weeks of leave (or 16 or 18 weeks, depending on circumstances)? Does the employee
have job protection but not benefits, or no protections or benefits under the law at all during the period
of late notice?
- An employee must give notice of the need for leave at least 30 days in advance for foreseeable leave, and
- Initial application for benefits:
- Employees must make application through the procedures the state will make available, or as defined in
a voluntary plan if the employer elects this route. - An employee must support each claim for benefits with documentation as specified in the rules: For the
employee’s own serious health condition or to care for a family member, the employee must provide a
certification from a health care provider documenting the serious health condition and other relevant
information. For bonding, acceptable documentation includes a birth certificate, court documents, or
other written documentation. For military exigencies, documentation includes military orders but a
“statement” to show why the leave is necessary is also acceptable. NOTE: The proposed rule does not
explain from whom the statement must come. Must the employer accept a written statement of the need
for leave from the employee him/herself? - An employer can require the employee to provide documentation of a familial relationship to support
benefits eligibility, such as a birth or marriage certificate or court document. - The proposed rules provide explanations of how an employee’s average weekly wage and weekly benefits
are calculated. We’ll wait until these are finalized before diving into a big discussion here. - Hourly employees’ “typical workweek hours” are determined by dividing the total hours worked in a
qualifying period by 52. NOTE: This does not take into account that, according to informal guidance from
the ESD, it is possible to establish eligibility in fewer than 4 prior quarters. So for example, dividing hour
worked in 3 quarters by 52 would significantly understate the employee’s typical work week. - If an employer is using the state benefits plan, the ESD will send the employer notice when an employee
has applied for benefits. NOTE: There is no time specified by which ESD must send this notice to the employer.
- Employees must make application through the procedures the state will make available, or as defined in
An observation: So far, the final Phase One rules and the proposed Phases Two and Three rules have not added much substance. Compared to the federal FMLA regulations that really flesh out FMLA rights and procedures, the WA PFML rules so far seem more to provide tiny slivers of information, in some cases merely repeating things already in the statute itself. It appears that much of the real details will have to be developed over time through experience. Good luck, employers!
Matrix can help! As always, we are tracking and analyzing developments regarding the Washington Paid Family and Medical Leave Program. Matrix will offer development and administration of voluntary plans for those employers who choose this route rather than putting themselves in the hands of the state. With required employee and employer premium payments beginning in 2019 and benefits beginning in 2020, it’s time to get started!. If you have questions, contact your Account Manager or [email protected].