by Marti Cardi, Esq. - Senior Compliance Consultant and Legal Counsel
January 04, 2020
PLEASE NOTE we had a few holiday technical difficulties here at Matrix-Radar, and this post was distributed in a timely fashion to Matrix clients through our account managers; but actual posting on the site was delayed. We believe we have resolved the issue and apologize for the delay!
Hold on to your egg nog. Pretty soon we will turn our attention to other topics, including Massachusetts, Connecticut, Oregon, and whatever new states join the PFML bandwagon in 2020. For now, Washington is sucking up all the oxygen in the room as we sprint for the January 1, 2020, start of benefits. Stay tuned for other topics another day!
Time is short, so let’s get right to the point. The Washington Employment Security Department (ESD) has FINALLY released its approved – and required – employer notices to employees. There are two, and we wrote about them in our WA PFML update post here. At that point the notices were not available, but now, just in time for the start of benefits on January 1, 2020, here they are:
Poster. Employers must post in conspicuous places on the premises of the employer where notices to employees and applicants for employment are customarily posted, a notice to employees of the pertinent provisions of the WA PFML statute. RCW 50A.20.020. The PFML rules explain this can be a common area such as a break room. WAC 192-540-020. Electronic posting for remote workers is not addressed. In the absence of ESD guidance, employers should use some reasonable means to ensure that all employees have easy access to the poster. You can download the poster here.
Although Matrix does not usually weigh in on workplace posting requirements, we will assist our voluntary plan clients by redesigning the poster to inform their employees how to apply for benefits through Matrix. We will also make any other changes that are needed due to differences in information relating to the state plan and a voluntary plan.
Notice to an employee taking leave. One of the (many) odd provisions of the PFML statute requires employers to give individual notice to employees of their rights, but only after the employer is aware that an employee is taking time off for more than 7 consecutive days of work for a covered leave reason. In that case, the employer must let the employee know he or she may qualify for Paid Family and Medical Leave by sending the notice created by the state to the employee within five business days. This seems nonsensical; no individual notice is required for employees who take leave for fewer than 7+ consecutive days and those who are using leave intermittently, and yet they are entitled to paid leave. Remember, an employee has to be off work only 8 consecutive HOURS in a work week to satisfy the waiting period and be eligible for pay benefits and leave.
At Matrix we feel a better practice is to give that individual employee notice as soon as the employer knows the employee is taking leave for a PFML-covered reason. Why wait and count for more than 7 consecutive days of work? We will include the mandatory state notice in our packets for clients who are using the state plan to provide benefits, and will modify the notice appropriately for the employees of our voluntary plan clients to comply with the law.
Certification of Serious Health Condition form. The ESD also recently released its certification form to support an employee’s leave due to the employee’s own or a family member’s serious health condition. Oh, my. Where to start. The form is woefully inadequate to equip the ESD to manage anything other than the simplest continuous leave claim. Unlike the federal FMLA Certification of Health Care Provider, the ESD form has no questions about medical facts, what parts of the employee’s job he cannot perform due to incapacity, when or how often the employee will need time off for medical appointments, and – most alarming of all – no place for the employer to provide the estimated frequency and duration of time off for intermittent leave. There are other flaws as well but these are key.
Apparently the ESD will simply approve intermittent time submitted by the employee without any means to judge whether the specific time off is medically necessary and fits within the anticipated frequency and duration of intermittent leave for the employee’s or family member’s serious health condition. Administering intermittent leave under the FMLA even with this type of information is challenging. Can you say “excessive use”? That’s the polite term.
There is a bit of good news here. The ESD will also accept the FMLA certification form, and that is what Matrix will be using for its voluntary plan clients. An employee applying for benefits under the state plan can also use the FMLA form obtained for that purpose and forego use of the state form – and possibly a second fee by the provider.
ESD website. Finally, we want to point out that the ESD has made many changes to its website very recently. Everything is reorganized, there is a new look and feel, and a lot of new or updated material has been added. You can start on the ESD paid leave home page https://paidleave.wa.gov/. We recommend reviewing both the employer- and employee-specific pages, as you will learn not only what you must do as an employer, but what your employees are being informed by the state.
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 adapting the required employer notices for voluntary plan participants. 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.