wa’s paid family medical leave benefit: what now? · 2020-01-30 · •intersection with other...
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fisherphillips.com ON THE FRONT LINES OF WORKPLACE LAW TM
WA’s Paid Family Medical Leave Benefit: What Now?
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fisherphillips.com ON THE FRONT LINES OF WORKPLACE LAW TM
WA’s Paid Family Medical Leave Benefit: What Now?
Presented By:Catharine Morisset Scott [email protected] [email protected] Seattle
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NATIONAL TRENDS
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WA PFML
•RCW 50A.05.005 (2017)
The legislature finds that the demands of the workplace
and of families need to be balanced to promote family
stability and economic security. . .
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WA PFML
•Agenda
WA
PFM
LOverview
Covered Employers + Employees
Employer’s Obligations
Employee’s Obligations + Using PFML
Intersection + Stacking With Other Leaves
Hypos
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WA PFML
•Overview
➢Administered by Employment Security Department (“ESD”)*
➢Funded by employer + employee premiums, paid each paycheck
➢Provides employees paid family + medical leave, up to 18 weeks, with 90% wage coverage
* The same agency that administers
unemployment benefits6
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WA PFML
•Overview
➢Rulemaking ongoing
➢ 5/6 phases complete
➢Many questions not yet answered
➢From January 1, 2020, benefits now available
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WA PFML
•Covered Employers➢Most employers must participate – no threshold size
✓Exceptions:
▪ Federal government
▪ Federally recognized tribes (may opt in)
➢ However, employers may opt out and adopt voluntary plan – ifvoluntary plan meets or exceeds PFML requirements
✓Must apply for VP approval
✓https://resources.paidleave.wa.gov/what-is-a-voluntary-plan
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WA PFML
•Covered Employees➢Most employees eligible for benefits
✓Exceptions:
▪ Federal employees
▪ Self-employed (may opt in)
▪ Employees subject to CBAs in existence before October 19, 2017 (unless reopened, renegotiated, or expired)
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WA PFML
•Covered Employees➢ Employees must meet following requirements:
• Work is localized in state; and
• Work at least 820 hours* in first 4 of last 5 completed quarters, looking back from day they intend to take leave (For 2020, lookback will be just 4 quarters)
✓ A conditional waiver may be available for employee who is not localized but works in WA
* Roughly 16 hours/week for prior year10
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WA PFML
•Employer Duties
Notices+
Posting
Reporting +
Premiums
Eligibility
Notice
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WA PFML
•Employer Duties
Notices+
Posting
Workroom Posting
➢Employers must post ESD’s notice in area of workplace customarily used by employees for breaks – notifying employees of rights
➢Currently available in English and Spanish➢https://paidleave.wa.gov/employers/
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WA PFML
•Employer Duties
Notices+
Posting
Paystubs
➢Employers may opt to attach ESD’s notice to employee paychecks – notifying employees of rights
➢Currently available in English, Spanish, several other languages
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WA PFML
•Employer Duties
Notices +
Posting
Employee Handbook
➢Employers should update employee handbook to include compliant PFML policy
➢“Sample” ESD policy is not great
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Employer Share➢50 ≥ Employees: ≈ 63%➢50 < Employees in WA: 0%
Employee Share➢ All: ≈ 37%
WA PFML
•Employer Duties
Total Contributions
Total Premium
Employee Gross Wage
.4%
Reporting +
Premiums
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➢All employers must assess total premium based on employee’s gross wage
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WA PFML
•Employer Duties
Total Contributions
Gross Wages
Gross wages include everything but:➢Supplemental benefit payments➢Payments for past or future costs incurred
by worker as result of expected job functions
➢Payment into retirement or disability plans
Reporting +
Premiums
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WA PFML
•Employer Duties
Reporting
➢Every quarter - employers must:✓ Use SecureAccess Washington▪ Report to ESD ▪ Remit premiums to ESD
Reporting +
Premiums
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An Employee Wants to Take PFML . . .
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WA PFML
•Employer Duties + Using PFML
Notice
Notice
➢ All employers must notify employee of rights
if aware they are out for qualifying PFML
reason for more than 7 consecutive days:
✓ Must use ESD notice; https://paidleave.wa.gov/app/uploads/2019/
12/Employer-to-employee-notice-2019.pdf
✓ Must send notice the later of 5
business days after 7th day or 5
business days after actual notice of
qualifying absence 19
*ESD, not employer, determines if leave qualifies for PFML *
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WA PFML
•Employee Duties + Using PFML
PFMLBenefit
Notice To
EmployerESD
ApplicationUse
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WA PFML
•Employee Duties + Using PFML
PFMLBenefit
➢ Eligible employees may use PFML for:
Time (Weeks)
12 Family or Medical Leave
16 Combination of Family or Medical Leave
18 Pregnancy + Serious Medical Condition
Qualifying Reasons
Bonding with child
Care for own serious medical condition or injury
Care for family member’s serious medical condition or injury
Certain military-related events
PFML Benefit
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WA PFML
•Employee Duties + Using PFML
PFMLBenefit
PFML Benefit
➢ My employee had a child in
2019, can they use PFML in
2020?
✓ Yes.
➢ Does this change if the
employee already exhausted
FMLA/WFLA in 2019?
✓ No.
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WA PFML
Employee Notice to Employer
NoticeTo
Employer
•Employee Duties + Using PFML
➢ Employee must provide employer:
✓ If practical, 30 days’ written notice;
✓ If not practical, as much advance written notice
as possible
✓ Notice must include anticipated timing and
duration of leave
❖ If ESD determines employee did not provide adequate
notice, employee’s benefits will be denied for period of
time equal to number of days notice insufficient23
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➢ Then, employee must submit application to ESD to qualify
for leave:
✓ 7-day waiting period before applying (except birth
or placement of child);
✓ Only one waiting period per “claim year” –
employee must reopen claim if another qualifying
event
✓ Application must be supported by adequate documentation, as provided by regulations
•Employee Duties + Using PFML
WA PFML
ESD Application + 7-Day Waiting Period
ESDApplication
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➢ ESD will provide employer notice after employee submits
application:
✓ First Notice
▪ Employer has 18 days after first notice to
contest claim
✓ Second Notice
▪ Either claim approved or denied
•Employee Duties + Using PFML
WA PFML
ESD Application + Notice to Employer
ESDApplication
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•Employee Duties + Using PFML
➢ If ESD approves employee’s application:
✓ PFML may be taken consecutively or intermittently*
✓ In 8-hour increments (even if intermittent)
*This includes intermittent child bonding leave
WA PFML
PFML May Be Taken Consecutively or Intermittently
Use
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•Employee Duties + Using PFML
➢ If ESD approves employee’s application:
✓ Maximum weekly benefit of $1,000, adjusted annually
to 90% of state’s minimum wage
✓ Minimum benefit of $100
✓ https://paidleave.wa.gov/estimate-your-weekly-pay/
Employee Receives Weekly Benefit
WA PFML
Use
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•Employee Duties + Using PFML
➢ Job Protection:• Employers with ≥50 employees* must:
✓ Restore employees returning from PFML to same
or equivalent position if employee employed at
least 12 months + worked at least 1,250 hours
during last 12 months
✓ But . . .
* For job protection, employee count is calculated same way as
FMLA; your headcount may be different than headcount for
premiums
Job Protection + Health Benefits
WA PFML
Use
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•Employee Duties + Using PFML
➢ Job Protection:
• All employers:
➢May be required to return employee to same or
equivalent position under other laws, such as
ADA/WLAD, PDL
❖Always seek legal advice before a termination
closely following protected leave
❖Be cautious of retaliation claims
Job Protection + Health Benefits
WA PFML
Use
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•Employee Duties + Using PFML
➢ Health Benefits:
• Employer may maintain employee’s health benefits while on
PFML:
✓ ESD regulations do not yet* obligate or provide answers
✓ If FMLA + PFML run concurrently, employer is required to
continue employee’s health care offered during FMLA
period
✓ If FMLA + PFML run consecutively, employer may be
required to continue employee’s health care offered
during FMLA through PFML period per informal ESD
position
Job Protection + Health Benefits
WA PFML
Use
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• Intersection With Other Leaves
➢ Employer cannot require employee to exhaust other types of
leave before using PFML, including:
✓ WA Paid Sick Leave
✓ Employer-sponsored PTO*
➢ There are strict penalties for doing so
*Different than FMLA – check your policy
General Rule
WA PFML
GeneralRule
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• Intersection With Other Leaves
PFML + FMLA
WA PFML
PFML+
OtherLeaves
FMLA PFML
Purpose Unpaid family + medical leave Paid family + medical leave
Eligibility • Employer has 50 or more employees• Employed 12 months• Worked 1250 hours within last year
• All employers• Worked 820 hours within 4 of last 5 quarters
Job Protection + Health Benefits
Job Protection, YesHealth Benefits, Yes
Job Protection, if:• Employee has 50 or more employees• Employers at least 12 months, and• Worked 1250 hours during last 12 months
Health Benefits: ?
Duration 12 weeks (26 for military caregiver) 12-18 weeks
Qualifying Reasons
• Baby bonding• Care for own serious medical illness or injury• Care of family member’s own serious medical
illness or injury• Certain military-related reasons
• Baby bonding• Care for own serious medical illness or injury• Care of family member’s own serious medical illness or injury• Certain military-related reasons
“Family” Spouse, parent, dependent child Spouse, registered domestic partner, parent, child, sibling, grandparent, grandchild, parent-in-law 32
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• Intersection With Other Leaves
➢ FMLA and PFML may run concurrently if eligibility aligns;
➢ However, FMLA and PFML may run consecutively if:
✓ PFML used for reasons not covered by FMLA, e.g.,
care for PFML qualifying family member
✓ FMLA used in 2019 for pregnancy; PFML used in 2020
for bonding
✓ Employee delays seeking PFML
✓ Intermittent leave
PFML + FMLA
WA PFML
PFML+
OtherLeaves
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• Intersection With Other Leaves
➢ Employees typically can’t use PFML and state/city
PST/PSST at same time
PFML + PST (or PSST)
WA PFML
PFML+
OtherLeaves
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• Intersection With Other Leaves
➢ Employees not eligible for PFML if on unemployment or
workers’ compensation
PFML + UI or Workers’ Compensation
WA PFML
PFML+
OtherLeaves
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• Intersection With Other PTO
➢ Employers may allow – but can’t require – employees to ‘top
off” PFML with supplemental benefits like PTO, vacation, or
sick time
➢ Employers must report employee’s supplemental benefit
usage to ESD
➢ Employees can use PFML and short-term disability at same
time (check policy), except receipt of STD will reduce PFML
benefit paid
Stacking PFML + PTO
WA PFML
Supp. Benefits
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• Intersection With Other PTO
➢ A supplemental benefit may be tied to PFML qualification, if
specifically set out in your policy
➢ But PTO, vacation typically are not
➢ But WA Paid Sick Leave cannot
➢ Remember
➢ ESD is taking the position that supplemental benefits are not
taxable income, but admit they need IRS guidance
Supplemental Leave
WA PFML
Supp. Benefits
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But What About . . .
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•Hypos
❑ 2/3/20: Ricardo’s mother-in-law is hospitalized. Ricardo takes paid
family leave under FMLA.
❑ 4/27/20: Ricardo’s FMLA benefits end.
❑ 6/1/20: Ricardo’s spouse is in a biking accident.
❖ Is Ricardo entitled to take additional PFML?
#1
WA PFML
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•Hypos
❑1/1/20: Susana gives birth and applies for FMLA and PFML
benefits.
❑3/25/20: Susana’s FMLA expires; she is still receiving PFML.
❖ Is Susana entitled to health care benefits before PFML
expires?
❖ Is Susana entitled to job restoration after PFML expires?
#2
WA PFML
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•Hypos
❑1/1/20: Catharine gives birth and applies for FMLA and
PFML.
❖How many weeks of job-protected leave is Catharine entitled
to?
#3
WA PFML
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•Hypos
❑8/24/19: Meg gives birth and starts FMLA.
❑11/17/19: Meg’s FMLA expires.
❑1/1/20: Meg applies to receive PFML.
❖ Is Meg entitled to PFML? If so, for how long?
#4
WA PFML
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•Hypos
❑3/1/20: Ryan takes leave for a serious health condition.
FMLA begins. Ryan uses PTO but does not apply for PFML.
❑7/24/20: Ryan’s FMLA ends.
❑7/24/20: Ryan applies for PFML.
❖ Is Ryan entitled to PFML? If so, for how long?
#5
WA PFML
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•Hypos
❑1/28/20: Jazmine tells you she is having surgery next week
and plans to apply for PFML.
❑Jazmine is trustworthy.
❑The date of Jazmine’s surgery arrives before you receive
notice from ESD of her application
❖What do you do?
#6
WA PFML
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•Hypos
❑1/28/20: Sally tells you she is having surgery next week and
plans to apply for PFML.
❑Sally is not trustworthy.
❑The date of Sally’s surgery arrives before you receive notice
from ESD of her application
❖What do you do?
#7
WA PFML
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fisherphillips.com ON THE FRONT LINES OF WORKPLACE LAW TM
Thank You!
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Presented By:Catharine Morisset Scott [email protected] [email protected] Seattle