Washington State Issues First Phase of Paid Family and Medical Leave Regulations

BY MARTI CARDI, VP-PRODUCT COMPLIANCE & GAIL COHEN, DIRECTOR-EMPLOYMENT LAW/COMPLIANCE

In 2017 Washington State was the fifth state to pass a paid family and medical leave law. 

The law requires employers to provide up to 18 weeks of paid, job-protected leave per 52-week period due to the employee’s own serious health condition, to bond with a new child, to care for a family member with a serious health condition, and for military exigencies.  The benefits are funded by employer and employee payment of premiums.  

Premium payments begin January 1, 2019, and benefits are available starting January 1, 2020.  In the meantime, Washington’s Family Leave Act remains in force to provide employees with up to 12 weeks of unpaid job-protected leaves of absence.  We reviewed the new paid family and medical leave law on this blog when it was passed.  Click here  to read our summary.  

On May 29, 2018, the Washington State Employment Security Department released the first of four sets of rules to implement the Paid Family and Medical Leave Program. Rules become effective 31 days after filing.  Topics will be addressed on the following schedule:

 

Phase One Phase Two Phase Three Phase Four
-Premium liability

-Collective bargaining agreements

-Voluntary plans

-Employer responsibilities

-Small business assistance

-Penalties

-Benefits -Appeals
November 2017 – May 2018 April – November 2018 August 2018 – January 2019 January – May 2019

 

Assessing and Collecting Premiums  [ WAC 192-510-010 et.seq.]:  The new regulations contain many details.  Here is a quick summary, with links to the Phase One regulations if you want to read them yourself.  Matrix will provide more detailed guidance in the near future.

Election of coverage and withdrawal of election by self-employed persons and federally-recognized tribes

Determination of wages earned and hours worked for self-employed persons

Effect of employer’s size on liability for premiums and eligibility for small business assistance grants

How the state will assess the size of new employers

Payment of premiums by employer (paid quarterly; due on the last day of the month following the end of the quarter

This regulation states that the payment must include “the premiums owed on all wages subject to premiums during that calendar quarter.” Although not specified, presumably this includes both the employer’s share of the premiums and the amounts withheld from paychecks for the employees’ share.

How “localization” of an employee’s work in Washington is determined for coverage by the law, and when services not localized in Washington are also subject to the law

Collective Bargaining Agreements  [WAC 192-520-010]:

The effect of collective bargaining agreements (CBAs) in effect before October 19, 2017 – the date the law became effective – and those that expire or are reopened or renegotiated on or after that date.

The manner of determining an employee’s hours worked when the qualifying period includes time worked under a CBA and then hours worked after the CBA expires without renewal or renegotiation (and so is then covered by the act).

The effect on employers of having employee populations subject to one or more CBAs and/or employee populations not subject to a CBA.

Voluntary Plans  [WAC 192-530-010 et seq.]

The required features of voluntary plans:

A voluntary plan must provide at least the same or greater benefits than the state benefits with regard to the duration and reasons for leave.

The amount of benefits available must be the same or greater than benefits offered by the state plan.

The premium paid by the employee cannot be any greater than the employee’s premium for the state plan

Submission of plans for state approval:

Voluntary plans must be submitted for approval through a state portal, expected to be available in late summer 2018. There is a $250 filing fee per plan.

A plan must be submitted for re-approved every year for its first three years.

Thereafter, re-approval is not required unless the employer makes changes to the voluntary plan that are not required by law.

Rules regarding payment of benefits on an accelerated schedule:

An employer can agree to offer benefits payments on an accelerated schedule whereby the employee receives the total amount of the anticipated leave benefit over a shorter time period, but not less than one-half the duration of the anticipated leave.

The employee can choose to return to work earlier than planned and does not have to repay the amounts paid in advance for leave time not taken.

Election of voluntary plans for medical and family leave benefits:

An employer can elect to have paid medical and paid family leave both covered by a voluntary plan, or can have a voluntary plan for just one benefit and use the state plan for the other benefit.

Provisions for how to determine employee eligibility for voluntary plan benefits, how to avoid duplication of benefits paid by the state and by a voluntary plan, and what happens when a voluntary plan ends.

Watch this space!  Matrix will continue to monitor Washington’s regulatory activities and report on the new regulations as Phases Two, Three, and Four are issued.  In the meantime, more materials are available on the state’s Employment Security Department website.

Matrix can help!  As always, we are tracking and analyzing developments regarding the Washington Paid Family and Medical Leave Program.  We will be ready well in advance to advise employers on the premiums beginning in 2019 and benefits beginning in 2020.  If you have questions, contact your Account Manager or ping@matrixcos.com.

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