by Marti Cardi, Esq. - Senior Compliance Consultant and Legal Counsel
December 03, 2019
Here it comes! Washington Paid Family and Medical Leave benefits are on the horizon, starting January 1. While we’ve been a bit quiet about WA PFML on this blog lately, we’ve been busy in the background. So has the state Employment Security Department (ESD) which is charged with administering the state plan and monitoring employers’ voluntary plans. Sadly, there is much yet to be done by the ESD and time is running short; but we at Matrix are in good shape!
Here’s an update of things from Matrix’s point of view.
Notices to employees #1
The PFML statute requires employers to provide two notices to employees about the program. The first is a general workplace posting setting forth excerpts from, or summaries of, the pertinent provisions of the statute and information pertaining to the filing of a complaint. (RCW 50A.20.020.) This is to be in a form prepared or approved by the ESD. Unfortunately, the notice is not yet available. Here is what the ESD Paid Leve Website says:
A mandatory poster to notify employees of the program will be available before Jan. 1, 2020. If you would like something to share with your employees prior to that, download our optional paystub insert to distribute or post.
Notices to employees #2
The second notice requirement applies only after an employee experiences 7 consecutive days of absence for PFML reasons. (RCW 50A.20.010.) This notice must be provided “within five business days after the employee’s seventh consecutive day of absence due to family or medical leave, or within five business days after the employer has received notice that the employee’s absence is due to family or medical leave, whichever is later.” This notice form, also to be provided by the ESD, is likewise not yet available; they expect to have it ready before January 1.
The notice requirement will rarely apply to an intermittent leave due to the nature of such leave (a day or two off, here and there). However, the ESD has confirmed that a notice earlier than after 7 days, as soon as the employer knows the employee is absent for a covered reason, will satisfy this requirement. Our advice, then, is to provide the notice at the outset of a covered leave rather than waiting and counting for 7 consecutive days of absence.
The good news? Matrix has you covered! Once it is available from the state we will include the notice in our packets for all clients with a Washington workforce.
Weekly claim filing
The PFML statute is patterned after the state’s unemployment scheme. It requires weekly claim filing by the employee which, in the unemployment context makes sense as an employee may obtain employment any day of the week. But for paid family and medical leave benefits – especially continuous leave – this seems unwieldy. Say an employee is having surgery and his provider certifies that he will need at least 6 weeks off for the surgery and recovery. Or an employee requests bonding leave for 12 weeks. Does it make sense to require a weekly claim and have the state address and adjudicate the claim every week, or just once at the outset? Oh well, the statute says weekly and that is what will be required of your employees under the state plan.
Under voluntary plans administered by Matrix, however, we will waive the weekly filing requirement (an employer can provide better benefits AND processes under a voluntary plan), thus saving your employees time and hassle, and providing greater certainty to both you and your employee regarding leave approval and benefits.
Minimum claim duration – 8 consecutive hours
According to the WA PFML statute, an employee must miss at least 8 consecutive hours of work to establish a claim. This applies both during the 7-day waiting period and for subsequent weeks in which leave is taken (since the employee has to file a claim weekly). So, for example, an employee could meet the 8-consecutive-hours requirement by missing a single 8-hour (or more) shift, by missing 3 scheduled hours Wednesday afternoon and the next 5 scheduled hours Thursday morning, or by missing 2 consecutive scheduled 4-hour shifts.
Once the employee has been absent for a covered reason for 8 consecutive hours, all other hours missed during the week (from the preceding Sunday through Saturday) then become part of that week’s claim for job-protected leave and benefits. Here’s another example: An employee misses 3 hours on Monday, a full 8-hour shift on Wednesday, then 2 hours on Friday. The Monday and Friday hours are both eligible for leave and pay (as well as the 8 hours) because they fall within a week during which the 8-consecutive-hours requirement was met.
Unfortunately, this scheme may have the consequence of encouraging employees to take more time off than they need to meet that 8-consecutive-hours requirement. If an employee takes time off for a legitimate PFML-covered reason but doesn’t really need 8 consecutive hours, he might be tempted to take more time to get the job protection for what he really needed. Otherwise the employee who needs, say, only 4 hours per week for physical therapy or due to a bad back flare-up will be without job protection and pay, and/or have to use his PTO to cover the absence.
For clients with a Matrix-administered voluntary plan, we are recommending that the employer waive the requirement to miss 8 consecutive hours to establish a claim, either in its entirety or at least after the employee has satisfied the waiting period. This will allow coordination of leave usage between WA PFML and the federal FMLA, if both apply.
Possible stacking (or consecutive use) of multiple leave benefits
Consider this from the WA PFML statute:
RCW 50A.15.060 (2) An employer may offer supplemental benefit payments to an employee on family or medical leave in addition to any paid family or medical leave benefits the employee is receiving. Supplemental benefit payments include, but are not limited to, vacation, sick, or other paid time off. The choice to receive supplemental benefit payments lies with the employee. Nothing in this section shall be construed as requiring an employee to receive or an employer to provide supplemental benefit payments.
And this from the WA PFML rules:
WAC 192-610-075 WAC 192-610-075 Employers may not require employees to take paid vacation leave, paid sick leave, or other forms of paid time off provided by the employer before, in place of, or concurrently with paid family or medical leave benefits.
What does this mean? It means that if you offer paid time off benefits of any kind – general PTO, vacation, sick leave (voluntary or statutory), short term disability, etc. – the employee gets to choose whether to use those benefits before, during, or after Washington PFML. Further, there is nothing in the WA PFML statute that allows an employer to designate time off for a covered reason if the employee doesn’t want to do so; and the ESD interprets the statute as prohibiting the employer from doing so. The result is that it may be possible for an employee eligible for both FMLA and WA PFML to take up to 30 weeks of leave, 18 of it paid under PFML. Here is an example:
- Jane is eligible for both WA PFML and FMLA. She wants to take time off to care for her mother who has
a serious health condition – a leave reason covered by both FMLA and WA PFML. If Jane can elect to
take time off but not apply for WA PFML benefits initially, she may be able to take up to 12 weeks of
job-protected FMLA leave (because the employee does NOT get to choose whether to use FMLA) and
then take 12 more weeks of paid and job-protected leave under WA PFML (assuming she is still eligible
for WA PFML).
Disability benefits also cannot be forced on the employee concurrently with PFML (or vice versa), so it is important to design your STD plan carefully to make benefits available only in circumscribed situations.
It’s hard to keep up with what’s going on in Washington, and it’s a bit nerve-wracking to be so close to live claims and not have all the answers. Many of the administrative rules supporting the WA PFML program are not yet finalized and aren’t expected to be until about December 20. How’s that for calling it close? Here are some suggestions that will help you stay as informed as possible.
- If you are a Matrix Washington voluntary plan client, attend our internal webinar explaining everything
Matrix has done, is doing, will do to keep you compliant.
The second session is Wednesday December 4 – contact your Matrix or RSL account manager if
you need details. (The session will be recorded but it’s best to attend live so you can ask questions.)
- Visit the ESD website here. Review the Employer and Employee pages to get as much information as possible.
- Sign up for the ESD newsletters in the SUBSCRIBE box at the bottom of that home page.
- For live answers to questions call the ESD Customer Care Team at 833-717-2273
- Review the WA PFML statute.
- Review the WA PFML rules enacted to date and check on progress on final rules on the ESD Rulemaking page.
- Sign up for informative webinars for employees and employers, rulemaking hearings, and more at the
Events link at the bottom of the home page.
- Keep watching this blog!
MATRIX CAN HELP!
Matrix has designed a WA PFML voluntary plan for our participating clients. We have filed and received approval for over 40 such plans. In preparation for January 1 claims, we have made necessary system changes, added WA PFML to our letters and packets, prepared extensive training for our claims staff, and are now holding educational webinars for our clients with voluntary plans administered by Matrix. If the thought of the state administering your employees’ claims has you concerned, contact your Matrix or Reliance Standard account manager to learn more about our voluntary plan offering.