Back in 2017, we told you about the double dose of Paid Family Leave (“PFL”) enacted in Washington State and Washington, D.C. As both laws march to full implementation, we provide an update on the progress toward establishing rules and regulations to bring these programs to fruition.
The D.C. Universal Paid Leave Amendment Act of 2016 (D.C. PFL) provides paid family and medical leave for employees beginning on July 1, 2020. Benefits are funded by a 0.62% employer payroll tax that the city will collect from employees starting July 1, 2019. The D.C. PFL program is administered through the District of Columbia and does not allow for employer-administered plans.
Under D.C.’s existing local Family and Medical Leave Act (D.C. FMLA), employees can use16 weeks of unpaid leave for certain qualifying reasons; however, the new PFL law provides paid leave as follows:
- 8 weeks within a 52-week period to bond with a new child
- 6 weeks for the care of a family member with a serious health condition
- 2 weeks for an employee’s own serious health condition
An employee is limited to a total of 8 weeks of PFL in a 52-week period.
While D.C. FMLA leave is job-protected, the D.C. PFL program expands upon the job protection. For example:
- The D.C. FMLA covers employees who have worked for the employer for at least one year preceding the leave request, while the D.C. PFL provides coverage if the employee must have been a covered employee “during some or all of the 52 calendar weeks immediately preceding the qualifying event.” The new law also provides expanded leave rights for part-time employees.
- The D.C. FMLA applies only to employers with 20 or more employees. The pay component of D.C. PFL covers all employers who are required to pay unemployment insurance on behalf of employees. However, employers with fewer than 20 employees are exempt from providing job protection.
- While D.C. PFL provides different protections from the D.C. FMLA, the new paid leave will run concurrently with, and not in addition to, the D.C. FMLA.
The District of Columbia Department of Employment Services has published Universal Paid Leave Proposed Regulations that set forth rules for filing and processing claims, documentation, calculation of benefits, and notifications, among other topics. Information about how to submit comments on the proposed rulemaking is also provided.
Washington State’s law differs from D.C. PFL in that it provides employers with more options for plan administration. Additionally, the plan pre-empts the existing Washington State Family Leave Act, which currently provides unpaid leave for Washington employees. Deductions for the new program begin January 1, 2019, while benefits begin January 1, 2020. The program will be funded by premiums paid by both employees and employers, and will be administered by the Washington State Employment Security Department.
Washington State’s PFL program provides benefits as follows:
- 12 weeks per 52 consecutive calendar weeks for an employee’s own serious health condition, and
- 12 weeks per 52 consecutive calendar weeks for:
- caring for a family member with a serious health condition
- bonding with a new child
- military exigency
The law provides a combined maximum of 16 weeks per 52 consecutive calendar weeks for paid family and medical leave benefits. The combined maximum can be extended to 18 weeks if the employee experiences a serious health condition with a pregnancy that results in incapacity.
Premiums: A total premium of 0.40% up to the Social Security cap is assessed for each employee. The employer is responsible for approximately 37% of the premium. If an employee makes $50,000 annually, the total annual assessment would be $200, of which $126.67 would be paid for by the employee, and $73.33 would be paid for by the employer. Employers are responsible for sending premiums to the state and reporting hours and wages. Employers can contribute some or all of the employee share of the total premium; the employer would reduce the premium amount deducted from employee paychecks, cover the difference, and then send the full amount to the state. An employer who opts to do this can be eligible for grants of up to $3,000 per employee up to 10 times per year to help cover wage-related expenses or hiring a temporary replacement.
Voluntary Plan: An employer can apply to the Commissioner of the Washington State Employment Security Department for approval of a voluntary plan for either family leave benefits or medical leave benefits, or both. Voluntary plan applications can be submitted through an online portal, currently under development and anticipated to be available in late summer of 2018. For the first 3 years of a voluntary plan’s existence, re-approval is required every year. After 3 years, re-approval is only required if the employer makes changes to the plan that are not required by statute.
While generally an employee becomes eligible for Paid Family and Medical Leave benefits after completing 820 hours of work for any employer in Washington State in the qualifying period, employees are eligible for benefit payments under an approved voluntary plan after working 820 hours in the qualifying period and 340 hours for that employer. Employees who are not yet eligible for coverage under an approved voluntary plan will be eligible for benefits under the state plan if they have worked 820 hours in the qualifying period.
Voluntary plans must, at a minimum, offer the same benefits and duration of leave as the state plan. This includes:
- allowing the employee to take the same duration of leave as would be allowed under the state plan;
- paying the same total amount of benefits as the state plan;
- withholding an amount from an employee’s paycheck that is the same or less than what the state plan would withhold; and
- meeting all reporting requirements.
Washington State has issued resources including an Employer FAQ, Employee FAQ, and Voluntary Plan Information. Washington State has issued Phase 1 Proposed Rulemaking that pertains to Collective bargaining agreements, premium liability, and voluntary plans aspects of the new law. Information about submitting public comments is available on the Public Comment Portal. A public hearing regarding Phase 1 rulemaking is expected on May 23, 2018.
D.C. and Washington State are in good company. Across the country more states and the U.S. Congress continue to propose paid family leave programs. The current legislative session has seen a plethora of activity, such as:
- Colorado House Bill 1001, passed first committee
- Connecticut House Bill 5487, passed first committee
- Georgia Senate Bill 63, introduced
- Hawaii House Bill 2598, passed house and senate, awaiting house concurrence
- Iowa Senate Bill 2133, introduced
- Illinois House Bill 2376, passed first committee
- Indiana Senate Bill 309, introduced
- Massachusetts Senate Bill 1048, introduced
- Maine House Bill 1091, passed first committee
- Mississippi Senate Bill 2337, introduced; failed
- Nebraska Bill 305, introduced
- New Hampshire House Bill 628, passed first committee
- Ohio House Bill 550, introduced
- Oklahoma House Bill 1815, introduced
- Oregon House Bull 4160, introduced
- Pennsylvania House Bill 1634, introduced
- Virginia House Bill 40, Introduced; failed
- United States House Bill 947, introduced
ReedGroup will continue to closely monitor the progress of the paid family leave programs in Washington, D.C. and Washington State. Stay tuned to stay informed!