Effective April 10, 2020, Washington State Governor Jay Inslee has signed into law changes and modifications that impact the state’s Paid Family and Medical Leave Law (PFML) that all employers must comply with and follow. Washington’s law is already fairly generous as to provide paid leave benefits to nearly all employees for specific family members and medical reasons.

The most significant changes to PFML includes:

  • A new definition of casual labor
  • A new private right of action to employees and enforcement provisions
  • Smaller changes to waiting periods, conditional waivers, and supplemental benefits

As of March 25, 2020, the term “casual labor” and those employees who perform casual labor are no longer eligible for PFML benefits. This means those casual laborers who a) perform work infrequently or irregularly; or b) the work performed does not promote or advance the employer’s customary trade or business.

Infrequent has been further defined as casual labor performed 12 or fewer times per calendar quarter or not on a “consistent cadence.” For example, work consistent with this might be odd job around the workplace or those brought on as an “extra pair of hands.”

Another new legal definition relating to PMFL  is the “Private Right of Action,” which starting June 11, 2020, employees will have the right to seek a private right of action to recover damages “against any employer” for PFML violation. This specifically provides that employees may assert class action claims against employers in addition to individual claims. More information can be found HERE.

Other changes relating to the PFML program include:

  • Waiting periods for benefits now begin the previous Sunday of the week the eligible employee takes the minimum of the eight hours of PFML. And during the waiting period, eligible employees may use any accrued and available PTO.
  • Definition of a typical work week hours has been modified to reflect the average number of hours worked within the qualifying period as opposed to “since the beginning” of the qualifying period;
  • A “child’s spouse” is now included in the definition of a “child” for purposes of PFML coverage
  • “Paid time off” and “supplemental benefit payments” are now defined to correspond with the amendments relating to supplemental benefit payments, which also have been clarified to say that such payments made to an employee pursuant to an employer’s PTO or vacation policy will not reduce an employee’s PFML benefit amount.
  • Child support obligations may now be deducted from PFML benefits

And finally, conditional waivers have been modified to allow an employer to file an application for a waiver of premium payments for employees who meet the following requirements:

  • Primarily perform work outside the state
  • Are not expected to be employed in the state for 820 hours or more in a period of four consecutive completed quarters
  • A new section on the waivers also requires signatures from the employer and employee to attest to the specific conditions of the waiver and to provide a date of expiration if any of the conditions of the waiver are no longer satisfied.

In addition to these changes, new rulemaking effective April 8, 2020 until June 7th, through the Seattle Office of Labor Standards has issued a new temporary emergency rule that prohibits employers from requesting doctor’s notes to verify an employee’s absence or use of paid sick leave under Seattle’s Paid Sick and Safe Time (PSST) ordinance. This was created in part to not impose an “unreasonable burden or expense on the employee,” during the COVID-19 pandemic period.

Prior to this emergency rule, Seattle employers could ask for “reasonable verification from a health care provider after an employee was absent for more than three consecutive scheduled workdays.” However, in lieu of doctor’s notes, Seattle encourages employers to remain flexible and accepting of the employee’s own statement or documentation as it pertains to the employee’s claim that their absence is COVID-19 related.

We hope you’ve found this bite-sized update helpful and realize there are many changes coming your way through federal, state and local municipality laws. For clarification of any of the above rulings or new laws, please contact JB Consulting Services for more information on our services by emailing Linda Robison at lrobison@jbconsultinsystems.com .