Changes to Washington’s Pregnancy and Leave Laws

Accommodation of Pregnant Employees

Effective July 23, 2017, employers in Washington State with 15 or more employees must provide specific reasonable accommodations for pregnant employees.  Undue hardship is not an excuse for some of the accommodations, including:

• Providing more frequent, longer, or flexible restroom breaks
• Modifying a no food or drink policy
• Providing seating or allowing the employee to sit more frequently if her job requires her to stand
• Limits on lifting over seventeen pounds

The new law also requires employers to provide other reasonable accommodations and specifies what proof of the need for an accommodation the employer can require, and prohibits retaliation.

Paid Sick Leave

Effective January 1, 2018, employers in Washington State will need to have written policies that provide for paid leave for nonexempt employees that can be used for:

• Their own or for a family member’s illness, injury or health condition
• Closure of the employee’s place of business or child’s school or place of care for any health-related reason
• For absences that qualify under the state domestic violence leave act

Other key provisions of the law:

• The definition of “family member” is very broad
• All nonexempt employees are eligible – even if they are part time or temporary employees
• Leave accrues at the rate of 1 hour for every 40 hours worked
• Leave can be used  beginning on the 90^th day of employment
• Verification can be required for leave that is more than three consecutive work days
• Up to forty hours of accrued leave can be carried over to the next year
• If an employee is re-employed within 12 months of separation, their leave accrual is restored
• Employers can adopt more generous leave policies
• A PTO policy can be adapted to meets the requirements for this leave
• Employers in cities with paid leave laws will need to adopt policies that meet the requirements for both the state and local laws (whichever is more favorable to employees)
• Employers cannot use paid sick leave time as an absence that may lead to or result in discipline against the employee
• Discrimination and retaliation for exercising rights under the law are prohibited

Paid Family and Medical Leave

As of January 1, 2019, employers in Washington State must start collecting and paying premiums to the state as part of a new paid Family and Medical Leave (“FML”) program.   Employees are eligible to begin using paid FML on January 1, 2020. Some of the key provisions of this law are summarized below:

• Paid FML is in addition to the paid sick leave that goes into effect on January 1, 2018
• The criteria for which leave can be used are similar to the federal FMLA
• Paid FML is usually 12 weeks, but can be extended to as much as 16 weeks for a serious health condition that occurs with a pregnancy resulting in incapacity
• FML pay varies depending on the employee’s average weekly wage; the maximum weekly benefit is $1,000 for 2020
• Paid FML applies to employees who work 20 or more hours per week
• An employer may allow an employee who has accrued paid time off (PTO) to choose whether to use their PTO or not use PTO and receive paid FML benefits
• The state decides if an employee is eligible for paid FML
• Unless otherwise expressly permitted by the employer, paid FML must be taken concurrently with any leave taken under the federal FMLA
• The definition of “family member” for paid FML is broader than the FMLA definition
• This law preempts local governments from altering the state paid FML benefits or requiring employer supplements
• Employers are allowed to provide greater benefits than paid FML provides
• Employees who receive workers’ compensation or unemployment insurance are ineligible for paid FML
• Employers with fewer than 50 employees are not required to pay the employer portion of the FML premiums
• The leave entitlement for the birth or placement of a child expires at the end of the twelve-month period beginning on the date of such birth or placement
• The leave entitlement for an employee’s own or a family member’s serious health condition, or leave for qualifying exigency, expires at the end of the twelve-month period beginning on the date the employee filed an application for the benefits
• Employees are not entitled to leave “for any absence occasioned by the willful intention of the employee to bring about injury to or the sickness of the employee or another, or resulting from any injury or sickness sustained in the perpetration by the employee of an illegal act …[or] For an employee who is on suspension from his or her employment”
• There is a seven calendar day waiting period except for leave for the birth or placement of a child
• The employment protection parts of the statute do not apply to employers with less than 50 employees, employees who worked for the employer less than 12 months, and employees who work less than 1250 hours (in other words, employers don’t need to return employees to their former positions if they would not have been eligible for FMLA leave)
• Employers are not required to reopen a CBA during its term in order to “apply rights or privileges” available under the Act until the current CBA is “reopened or renegotiated by the parties or expires”
• Employers can adopt a voluntary plan for medical or family leave (i.e., to self-insure) if their plan is approved by the state

We recommend updating your policies now for pregnancy accommodation and paid sick leave.  We anticipate additional guidance on paid FML will be provided by the state before premium collection begins in 2019.  Any member of the Ogden Murphy Wallace’s Employment and Labor Law Group can guide you through the process of updating your policies, or you can contact Group Chair Karen Sutherland for a referral, ksutherland@omwlaw.com or 206-447-2241.