Update: Washington Paid Family Medical Leave2018-11-07T10:16:48+00:00

 

 

 

 

 

 

 

 

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 Webinar November 1st, 2018
Update: Washington Paid Family & Medical Leave

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Overview:

In June of 2018, The Partners Group’s Total Absence Management team was at the forefront in capturing and delivering to employers information about Washington’s Paid Family and Medical Leave (PFML) law.  Since then, we have seen many developments surface due to the ongoing rulemaking taking place at the state.  Please join us again for our update session where we, in partnership with Unum’s AVP of Legal Counsel, will catch you up on the evolution of Washington’s PFML over the past several months and where we will guide you through what your organization needs to know to be ready for changes taking place 1/1/2019 and beyond!   

This webinar is intended for HR and administrative professionals with employees in Washington State. Beginning 1/1/2020, Washington will be the fifth state in the nation to offer paid family and medical leave benefits to workers. All Washington employers, including employers who are not based in Washington but have employees in the state of Washington, will be required to comply with the paid family and medical leave law.

 
Topics covered will include:
  • Developments arising out of the state of Washington’s rulemaking process
  • How the state of Washington is serving you and your employees  
  • Provisions of the Washington PFMLA
  • How the PFMLA interacts with existing paid time off policies and other leave laws 
  • What is best for your organization?  Voluntary vs. state plan considerations

 

Presenters:

Jean brings over 30 years of experience working with employers on the design and implementation of employee benefit plans and strategies. Her areas of expertise include Total Absence Management, FMLA and ADA, health and productivity, financial analysis and data analytics.   jshearer@thepartnersgroup.com / 425.285.2304

Daris has been with Unum Group since 2000 when they started the Leave Management Service. After more than 10 years in the operation developing the service, she moved to compliance and is currently Assistant Vice President and Counsel. Ms. Freeman’s primary responsibility is to support Unum’s Leave Management Center which administers FMLA, ADA and over 200 complementary state laws. In addition, she provides general employment law support for Unum.  dfreeman3@unum.com / 423.294.4763

Q&A:

The Q&A that we are providing is current with information we have access to as of November 1st, 2018. Please note that the Washington Paid Family Leave Law is still in the rulemaking phase and final regulations are not due out until later this year. This should not be construed as legal advice. We recommend contacting your legal counsel for advice specific to your organization.

Q: Are you able to change from having coverage through the State to voluntary after implementation of 1/1/20?

A: Yes, you can apply for a voluntary plan at any time. Please see the state’s Voluntary Plan Guide for additional information. (https://pfmlorchard.blob.core.windows.net/media/Default/Documents/VoluntaryPlans/PFML_VoluntaryPlanGuide_V1.1.pdf)

Q: Does this replace WA PDL?

A: No, Washington’s Law Against Discrimination, providing for leave for women disabled by pregnancy is still in effect. It is unclear at this time how it will integrate with WA PFML – questions have been asked of the state and it is to be addressed in future rulemaking.

Q: When they say 50 employees – is that 50 in the entire state or 50 within a 75 mile radius like FMLA?

A: It depends. For purposes of employer liability for employer portions of premium, it is 50 employees in the state. So if you are a large company but your WA office is small (less than 50), you do not have to pay the employer portion of the premium. However, for purposes of job protection, it is not clear at this time. The state has been asked this question and has indicated they will address it in future rulemaking.

Q: Is there a qualifying period with a single employer before the employee is entitled to job protection with that employer?

A: The employee must work for the specific employer for 12 months, 1250 hours in the prior 12 months and the employer must have 50 employees (waiting on rulemaking to know if the 50 employees is total, in the state, etc.) in order to have job protection. If it is a Voluntary Plan, the employee must work 9 months and 965 hours for that employer.

Q: I have employees that work in both OR and WA. Would only the hours that work in WA apply to the WA State PFML?

A: If the employee is determined to be a WA employee for purposes of this law, then all hours worked both within and without the state are included in their employment per RCW 50A.04.010(7)(a).

Q: Also how do we get the application that needs to be submitted?

A: Please see the state website here (https://paidleave.wa.gov/voluntary-plan-application) for submitting an application (which is a series of questions regarding your plan). A copy of your plan document will also need to be submitted with your application

Q: How would it coordinate with short-term disability?

A: It is unclear at this time how the medical benefit will coordinate with STD. Likely, it will just be an offset to an existing plan assuming the employer maintains the existing plan for WA-based employees. However, we are waiting on rulemaking for specifics on how this will work.

Q: Can they use short-term disability?

A: It is unclear at this time how the medical benefit will coordinate with STD. Likely, it will just be an offset to an existing plan assuming the employer maintains the existing plan for WA-based employees. However, we are waiting on rulemaking for specifics on how this will work.

Q: If the employee has 820 hours at another employer, then begins employment at your company and goes out on leave, do they have job protection?

A: The rules for job protection are different than the rules for a benefit. The employee will likely be eligible for a benefit based on the 820 hours. However, the employee must work for the specific employer for 12 months, 1250 hours in the prior 12 months and the employer must have 50 employees (waiting on rulemaking to know if the 50 employees is total, in the state, etc.) in order to have job protection. If it is a Voluntary Plan, the employee must work 9 months and 965 hours for that employer.

Q: What happens when an employee is eligible for WA PFML but they have not met the job protection requirements?

A: They receive a benefit but would still be subject to attendance policies. We believe it would be similar to an employee receiving any other kind of pay without job protection (e.g. unscheduled PTO).

Q: Do employers need to know how much an employee is going to get paid from this? The payment is coming from the state right? or are employers required to issue payment?

A: If the employer is using the state plan, the state will issue the payment to the employer will not need to know the amount unless there is some type of supplemental pay. However, we are still waiting on rulemaking to find out if supplemental pay will be permitted.

Q: If you can qualify for this leave with work done from other employers, how will we know if someone qualifies for the 820 hour requirement if they are a new hire?

A: The state will determine if an employee is eligible and make the appropriate benefit determination. If the employer has a voluntary plan, they will be able to access eligibility information via an employer portal.

Q: Can you repeat the concurrent leave rules?

A: WA PFML will run concurrently with Federal FMLA when the leave reasons qualify for both and the employee has time available under both. However, there will be many times the leaves will not run concurrently. For instance, if an employee is taking leave to care for a grandchild or sibling which is covered under WA PFML but not under FMLA. Of if an employee used all their 12 weeks of FMLA in 2019 and then needs leave again in early 2020 before the FMLA replenishes. They will have a full bank of WA PFML but no Federal FMLA.

Q: Although we are not required to notify our employees of the deduction, we would want to. Is there any chance TPG could provide a notice for us to use?

A: TPG will be providing updates and communication materials to our clients on the PFML law The state has just finished creating paystub inset for employers to use that explains the withholding to employees. It is available in several languages and can be accessed via this link www.paidleave.wa.gov/paystub.

Q: Washington already receives employee wage information when we file quarterly taxes. Will we have to file a quarterly report in addition to our quarterly taxes?

A: It’s not completely clear at this time but it appears this will be a separate report. However, it may be much of the same data which may reduce some of the burden.

Q: How will the employee count be done? is it averaged over a period of time leading up to the first payment? or just at time of first payment or January 1, 2019? we have over 50 WA employees now, but if averaged over the last 12 months, we have not had over 50.

A: The statute reads: “”On September 30th of each year, the department shall average the number of employees reported by an employer over the last four completed calendar quarters to determine the size of the employer for the next calendar year for the purposes of this section and RCW50A.04.230.”” However, for the first year or so, this won’t necessarily work as they won’t have all the data. So the state has issued the following proposed rule. It is not yet final but is likely reflective of how they will make this determination.

WAC 192-510-045 How will the department assess the size of employers for calendar years 2019 and 2020? (1) For the purposes of premium assessment for calendar year 2019, the department will determine the size of all employers by reviewing the number of employees reported pursuant to WAC 192-540-030 for the first calendar quarter. Employers that report fifty or more employees will be required to pay the employer share of the premium for all calendar quarters in calendar year 2019.
(2) On September 30, 2019, the department will average the number of employees reported over the quarters for which reporting exists to determine employer size for calendar year 2020.”

Q: What is the qualifying period again?

A: “Qualifying period” 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.

Q: How would the employer get access to view the employee hours?

A: The state is building an employer portal for access to employee eligibility, hours and benefit amount.

Q: What if our eligibility requirements under our current short-term disability plan is more generous? For example, at the moment ee’s are eligible the first of the month following the date of hire (this would be for a voluntary plan).

A: An evaluation will have to be done to ensure the plan meets or exceeds the state requirements. For instance, under the state plan, an employee may be eligible day one of employment which is more generous than the plan you’ve described. But if your existing plan meets or exceeds all requirements, then you could apply to have that plan as a Voluntary Plan for the medical component of the WA PFML.

Q: Can the reporting be done by a payroll processor? i.e. Paychex or ADP

A: The state has not gotten that specific but we believe they will only require that the reporting be accomplished without dictating how the employer fulfills the requirement.

Q: How will current collective bargaining agreements affect employee deductions that will start 01/01/2019?

A: None of the rights and responsibilities of the WA PFML apply to employees subject to a CBA in existence prior to 10/19/17. The applicable Statute and Regulation are included for reference.

Statute: RCW 50A.04.235 Collective bargaining agreements.
Nothing in this chapter requires any party to a collective bargaining agreement in existence on October 19, 2017, to reopen negotiations of the agreement or to apply any of the rights and responsibilities under this chapter unless and until the existing agreement is reopened or renegotiated by the parties or expires.

Regulation: WAC 192-520-010 Parties to collective bargaining agreements. (1) The rights and responsibilities under Title 50A RCW do not apply to parties covered by collective bargaining agreements in effect before October 19, 2017, unless and until the agreements expire, are reopened, or are renegotiated. (2) Employers must inform the department immediately upon the reopening, renegotiation, or expiration of a collective bargaining agreement that was in effect prior to October 19, 2017. (3) An employer must file quarterly reports once a collective bargaining agreement expires, is reopened, or is renegotiated. (4) To be eligible for benefits, an employee must have worked at least eight hundred twenty hours during the qualifying period. If the employee’s qualifying period includes any quarter prior to a collective bargaining agreement being reopened, renegotiated, or expiring, the department will request the employee’s qualifying period wages and hours from the employer. The employer must provide the wages and hours to the department within ten calendar days. (5) Employees not covered by a collective bargaining agreement are subject to the rights and responsibilities of Title 50A RCW. Employers are also subject to the rights and responsibilities of Title 50A RCW for employees not covered by a collective bargaining agreement, regardless of whether the employer is party to a collective bargaining agreement covering other employees. (6) Employers party to multiple collective bargaining agreements among different bargaining units are subject to the rights and responsibilities of Title 50A RCW as they pertain to the bargaining units whose collective bargaining agreement has expired, been reopened, or renegotiated, on or after October 19, 2017.

Q: Is the employer or the state responsible for collecting certification of illness, etc? Will the certification be similar to FMLA documents?

A: It will be the responsibility of whichever party is paying the benefit so if the employer is using the state plan, the state will collect. If an employer has a voluntary plan, the employer will collect it. The forms are still being developed by the state.

Q: Will the state be providing a reporting template?

A: It is unclear what the state will provide in order to provide the data required for quarterly reporting but they are working on the portal and reporting requirements now.

Q: Will employers be required to allow the intermittent use of time for bonding?

A: The only information in the bill is that leave will have to be taken in minimum increments of 8 consecutive hours. Many questions have been asked regarding intermittent leave and the state has indicated they will address it in rulemaking.

Q: Regarding the letter we are supposed to send out to employees, what date are we supposed to notify them by and also when are we supposed to start deducting from employees checks?

A: Currently, the only requirement for posting is a general posting requirement. The state will be developing the notice/poster. It appears the requirement for posting is effective 1/1/2020.

Deductions begin 1/1/19 with the first remittance of those premiums to the state due 4/30/19.

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