Washington lawmakers made several significant changes to the state’s paid family and medical leave (PFML) program during the 2021 legislative session. In particular, employers should become familiar with the following three changes.

Expanded Paid Leave Coverage for Employees

First, as of July 25, 2021, Washington employees can use PFML to care for an expanded list of individuals under the amended “family member” definition. The program permits eligible employees to receive paid leave for, among other reasons, participating in providing care for a family member with a serious health condition.

The statute previously defined “family member” as an employee’s “child, grandchild, grandparent, parent, sibling, or spouse.” Now, however, the term also includes “any individual who regularly resides in the employee’s home or where the relationship creates an expectation that the employee care for the person, and that individual depends on the employee for care.”

The statute clarifies “family member” doesn’t include “an individual who simply resides in the same home with no expectation that the employee care for the individual.” Nevertheless, the new definition greatly expands who may qualify for paid leave under Washington’s program.

Additionally, the new definition of family member applies to both the state’s PFML program and to employers using their own Washington State Employment Security Department-approved voluntary paid leave program. As a result, employers should update their voluntary paid leave programs to be consistent with the statute’s new definition.

New Pandemic Leave Aid Grants for Employees, Employers

Second, as of August 1, 2021, employees otherwise ineligible for PFML may qualify for a pandemic leave assistance grant, the cost of which may be offset by a grant to their employer.

Employees. For employees to qualify for paid leave under the PFML program, they must work 820 hours during the “qualifying period,” which means “the first four of the last five completed calendar quarters or, if eligibility is not established, the last four completed calendar quarters immediately preceding the application for leave.”

Because of unemployment triggered by the COVID-19 pandemic, however, many workers were prevented from accruing enough hours to qualify for paid leave. Therefore, the legislature created a pandemic leave assistance grant program to help workers who wouldn’t otherwise qualify for paid leave.

Under the grant program, employees who don’t meet the hours-worked threshold for PFML are eligible for a pandemic leave assistance grant if they worked:

• 820 hours during the first through fourth calendar quarters of 2019; or
• 820 hours during the second through fourth calendar quarters of 2019 and first calendar quarter of 2020.

The benefits are equal to those under PFML and are available for claims with an “effective start date in 2021 through March 31, 2022.” The program expires on June 30, 2023.

Employers. Recognizing the new employee grant program may disproportionally affect small businesses, the legislature created a pandemic leave assistance employer grant program to aid companies with the costs of workers on leave. Accordingly, employers with either (1) 150 or fewer employees or (2) 50 or fewer employees that pay all employer PFML premiums may apply for a grant of either:

• $3,000 if the employer hires a temporary worker to replace an employee on leave; or
• Up to $1,000 as reimbursement for significant additional wage-related costs caused by the employee’s leave.

Additional funds may be available to cover the difference between the cost of hiring a temporary worker if an employee’s leave extends beyond the length initially planned. You may apply for a pandemic leave assistance grant only once. Although the legislation didn’t specify when the program will begin, the statute expires on June 30, 2023.

Previous Paid Leave Claims Continue

Third, the legislature clarified the statute to reduce ambiguity for leave claims occurring before January 1, 2020, when the PFML program officially began. Its implementation created uncertainty regarding claims initiated under the state’s previous family leave law.

To clarify the ambiguity, the legislature added RCW 50A.05.125, which states the provisions repealed in the state’s previous family leave law (RCW 49.78) still apply to claims occurring before January 1, 2020. In other words, “a cause of action for conduct, acts, or omissions occurring on or before December 31, 2019, under chapter 49.78 RCW, remains available within its applicable statute of limitations.” Thus, the legislature made clear the PFML program “did not sever, impair, extinguish, or in any way affect the rights, liabilities, or obligations under” the state’s previous family leave law.

Takeaways for Employers

• All employers with employees located in Washington should review the changes to the state’s PFML program to ensure compliance with the statute’s new definition of family member.
• Eligible employers affected by an employee’s leave should apply for assistance through the state’s new pandemic leave aid employer grant program.
• Finally, consult with trusted legal counsel if you have any questions or concerns about the legislative changes.

Samuel N. Jackson is an attorney with Perkins Coie LLP in Seattle, Washington. Samuel represents clients in all aspects of labor and employment litigation in courts, administrative proceedings, and labor arbitrations. He also has handled matters before the National Labor Relations Board, the U.S. Equal Employment Opportunity Commission and state agencies. You can reach him at sjackson@perkinscoie.com.