Potential changes to the way job protections function under the state’s Paid Family & Medical Leave (PFML) law are being developed for the 2025 legislative session. Some proposals may also change the way PFML runs concurrently with federal Family & Medical Leave Act (FMLA) leave. No proposals have been introduced yet, but they are expected as the 2025 session nears.

Like most things dealing with leave law, PFML job protection and the interaction between PFML and FMLA is complicated. Here we run through some of the proposals that AWC has become aware of this fall. Readers should keep in mind that since no legislation has been introduced, there may be differences between the drafts that were circulated during the interim and the version of any bill or bills that might be introduced for the 2025 session.

Proposals on job protections

Under current law, PFML “job protections” include an employee’s right to be restored to the job they had prior to taking leave, or to be restored to a position with equivalent pay, benefits, and working conditions. There is a three-prong test to know if PFML job protections apply (based on the three-prong test used by the federal FMLA):

1. Employee taking leave must work for an employer with 50 or more employees;
2. Employee must have worked for that employer for at least 12 months; and
3. Employee must have worked a minimum of 1,250 hours for that employer over the 12 months prior to taking leave.

Effectively, small employers are exempt from providing PFML job protections. For employees of large employers, new, short-term, and some part-time employees do not qualify.

One draft proposal that we saw earlier this fall changes this by eliminating the three-prong test above and would require all employers of any size to offer PFML job protections to employees that have worked for that employer for at least 90-days before taking leave. The draft did not specify a minimum number of hours that the employee must have worked to qualify for job protections.

Over half of Washington cities have fewer than 50 employees and would be required to provide job protections for employees taking PFML leave. When the PFML law was originally passed, small employers were exempted since it is harder to hold open a job for a significant length of time with limited staff to spread out the workload.

Proposals on concurrent PFML/FMLA leave

Current law also requires that employers maintain an employee’s health benefits while on PFML leave if their leave is concurrent with federally protected FMLA leave. FMLA includes the right to 12 weeks of unpaid leave and job protections under federal law, but it is separate and distinct from the entitlements granted under the state PFML law. Both state and federal leave rights can be triggered by the same “qualifying events” for an employee, like childbirth, adoption, serious medical condition, etc.

The Employment Security Department (ESD) has interpreted concurrent leave to mean that FMLA leave and PFML leave only have to crossover by a minimum of one day, rather than fully running at the same time. This makes it possible for employees to “stack” 12 weeks of unpaid FMLA leave with 12-18 weeks of paid PFML leave and require employers to cover medical benefits for that entire combined 24+ week period. There are many ways that employees can stack FMLA and PFML leave, further complicating matters. Employers have long struggled with the complexity of meshing FMLA and PFML leave and potentially being on the hook for covering benefits and backfilling positions for such a long leave period.

One draft proposal we are aware of attempted to address this stacking issue by permitting employers to require FMLA leave and PFML leave to run fully at the same time for employees exercising PFML job protection rights, and allowed employers to reduce the time period in which PFML job protections apply by the amount of time that an employee takes unpaid FMLA leave. Each employee would start with 16 to 18 weeks’ worth of PFML job protections. Those PFML job protections could be reduced by the amount of unpaid FMLA leave the employee takes when they could have, but did not, also apply for paid PFML leave at the same time. The draft also tied the length of time that employers are required to cover health benefits to the length of time that PFML job protections applied.

While the draft did not outright prohibit stacking leave, it did provide a disincentive to do so by docking the length of time the employee’s job protections and health coverage were required of employers under state law if they choose to not take FMLA and PFML concurrently. As cities know, reconciling FMLA leave and PFML leave is not always clear, and reducing the incentive for employees to stack leave could make administration more straight forward.

More information needed on these issues

While there is anecdotal evidence these situations occur, it is unclear how often employees of “small employer” cities and towns are not restored to their previous or equivalent jobs when returning to work, and it's unclear how often employees attempt to stack FMLA and PFML leave for an extended period. We ask city and town HR staff to fill out this survey so that we can get a better idea of how these issues impact cities and their employees. AWC will continue to keep cities informed about proposed changes to PFML.

In a related development on this issue, the House Labor & Workplace Standards Committee heard the results of a University of Washington study on PFML job protections on December 10. The study finds that while overall uptake of PFML benefits is low (less than 2% of employees that meet the employment criteria for PFML apply for benefits in a given quarter, likely due to lacking a qualifying event), workers eligible for job protections were more likely to apply for PFML than those who were eligible for benefits but not job protection. Those rates varied when broken down by industry or salary class. The report also noted that for those that did apply for PFML, employees that received job protection were only slightly more likely to be employed by the same employer after returning from leave (75.4% employment rate) than those without job protection (72.1%).

Ultimately, the study recommended that the Legislature expand eligibility for job protection, provide more direct communication to workers and employers about PFML job protection, and give ESD authority and resources to collect data from employers about post-leave employment.