In 2017, Washington’s Paid Family and Medical Leave (PFML) program was enacted to provide partial wage replacement to employees on leave for specified family and medical reasons. The state-administered PFML fund provides qualified employees with the following maximum leave amounts per calendar year: (a) up to 12 weeks of paid family or medical leave, (b) up to 16 weeks of leave when family and medical leave are used in combination, and (c) an additional two weeks of leave due to pregnancy complications. Because of concerns about the potential insolvency of the PFML fund, the Washington State Legislature recently passed Second Substitute Senate Bill 5649 (SB 5649), which provides for an audit, retention of a financial consultant to advise on solvency issues, and a task force to develop recommendations for 2023 legislative changes. In addition to these accountability measures, SB 5649 also amended some of the PFML benefits and requirements. These 2022 amendments, which generally took effect on 9 June 2022, are detailed below.

BEREAVEMENT LEAVE ADDED AS A NEW CATEGORY FOR BENEFITS

The 2022 amendments expand the reasons for paid leave to include bereavement under specific circumstances. Employees may now use paid family leave during the seven calendar days after the death of a child for whom the employee would have qualified for medical leave for the birth of the child or would have qualified for family leave to bond with the child following their birth or placement.

LEAVE DURING THE POSTNATAL PERIOD WILL BE CLASSIFIED AS MEDICAL LEAVE

The 2022 amendments clarify that leave taken during the first six weeks after birth (the postnatal period) is presumed to be medical leave. Employees eligible for benefits based on incapacity due to pregnancy or for postnatal care will be presumed to be using paid medical leave benefits, unless the employee chooses to use paid family leave benefits during that period. In addition, the 2022 amendments modify the medical certification requirements so that employees using paid medical leave during the postnatal period do not need to provide certification of a serious health condition.

WAITING PERIOD CHANGE

The 2022 amendments address confusion around the seven-day waiting period before benefits may be available. Initially, the amendments make clear that the waiting period will not reduce the PFML benefits available to employees. In addition, the waiting period no longer applies to medical leave taken for the birth of a child.

EXPIRATION DATE FOR THE COLLECTIVE BARGAINING EXEMPTION

When adopted in 2017, the PFML program provided an exemption for employees subject to a collective bargaining agreement (CBA) in effect on 19 October 2017 until the CBA was reopened or renegotiated or the parties to the CBA elected to be subject to the law. The 2022 amendments provide that this CBA exemption will expire on 31 December 2023.

WHAT THIS MEANS FOR EMPLOYERS

Employers should take this opportunity to audit and review their handbooks and PFML policies to ensure compliance with the law’s requirements. This includes adding bereavement leave as an additional category of eligibility for benefits under the PFML program. In addition, employers with employees who fell within the CBA exemption from PFML requirements for the past six years should start planning for and communicating about the coverage of those employees. Finally, to the extent employers have concerns about the PFML program, they should reach out to the legislative task force in the hopes that those concerns can be addressed in remedial legislation during the 2023 session.