Over the past several weeks, AWC has received some questions about how state and federal leave protections work in regard to public sector workers. Here we offer you some answers on these frequently asked questions, and hope you find them helpful. For
those planning on making it to AWC’s Labor Relations Institute conference in Yakima this May 4-6, we’ll feature several sessions about leave laws
that you should check out.
As with all of our AWC’s articles, this article is for informational purposes only and is not intended as legal advice. Cities should reach out to your city attorney or other legal counsel for legal advice on your specific situation surrounding leave laws.
Leave laws 101
We’ll start with the basics of some of the family and medical leave laws impacting employers and employees in Washington.
First up is the federal Family & Medical Leave Act (FMLA). Passed by Congress in 1993, FMLA entitles eligible employees to 12 weeks of unpaid protected leave each year for qualifying family or medical events, including:
- The birth of a child and to care for the newborn child within one year of birth;
- The placement with the employee of a child for adoption or foster care and to care for the newly placed child within one year of placement;
- To care for the employee’s spouse, child, or parent who has a serious health condition;
- A serious health condition that makes the employee unable to perform the essential functions of his or her job; and
- Any qualifying exigency arising out of the fact that the employee’s spouse, son, daughter, or parent is a covered military member on “covered active duty.”
“Protected leave” means that most employees are entitled to return to their previous job or to an equivalent position with the same pay, benefits, and other terms and conditions of employment. Additionally, employers are required to maintain the employee’s health coverage while they are on FMLA leave, though employees can still be held responsible for their regular portion of premiums.
As readers are undoubtedly aware, Washington also has its own Paid Family & Medical Leave (PFML) program, which was passed by the Legislature in 2017—benefits for which started in 2020. While there are certain similarities, it’s important
to remember that FMLA is a federal law and PFML is a separate state law. While the two can interact (and often do), they are separate entitlements.
Under PFML, eligible employees are entitled to receive payment from the state program up to 12 weeks of paid leave (16-18 weeks for certain pregnant/childbearing employees) each year for
qualifying events, including:
- Birth of a child and bonding with a newborn child;
- Bonding with an adopted younger child;
- Caring for themselves or a family member stricken with a serious health condition; and
- Certain military connected events like upcoming deployments or return from deployment.
Paid leave benefits are funded by a payroll tax paid by both employers and employees that gets recalculated each year. It is important to note that PFML generally provides a prorated share of an employees’ pay and full salary replacement isn’t guaranteed.
Like FMLA leave, PFML leave is “protected leave” for certain classes of employees where the employee is entitled to return to their previous job or an equivalent position. Under PFML, employers are also required to maintain an employee’s
health coverage, although only if the employee’s PFML leave overlaps with FMLA leave.
Here are some additional resources if you want more details on FMLA and PFML:
Leave laws FAQs
What types of employers are required to follow FMLA and PFML laws?
FMLA applies to all public employers regardless of the number of employees they have. FMLA also applies to all private employers with 50 or more employees. Employees become eligible for FMLA benefits when they have worked for their current employer for
at least 12 months, worked at least 1,250 hours in the previous 12 months, and work at a worksite where the employer has at least 50 employees within 75 miles.
PFML kicks in for employers and employees in different ways at different thresholds. All employees in the state pay the employee portion of PFML premiums. Employers with 50+ employees are required to pay the employer portion of the PFML premium. Employers
with fewer than 50 employees are exempt from paying employer premiums, but can voluntarily pay the premiums in order to access grant programs to help cover the cost of backfilling employees on leave. Any employee that works in Washington can apply
for PFML benefits if they have at least 820 hours worked over 4 of the past 5 calendar quarters.
Employers are only required to protect an employee’s job under PFML if they have 50+ employees, and then only when the employee has worked for that employer at least 12 months and for at least 1,250 hours in the past 12 months (similar to the FMLA
requirement).
Do employees have to use FMLA and PFML at the same time for the same qualifying condition?
No, but it's complicated. FMLA and PFML are separate entitlements granted by separate governments (federal vs. state). The same qualifying condition, such as a childbirth, can trigger each of these entitlements separately, and the employee could be entitled to 12 weeks of unpaid FMLA leave and an additional 12 weeks (or more) of paid PFML leave, for a total of 24+ weeks of protected leave. FMLA is usually supposed to run concurrently with PFML, however it is possible for an employee to structure their leave so that FMLA leave is exhausted first and then switch to PFML, effectively using the entitlements separately.
In the case of PFML, employees can choose to use the entitlement or not, since employees themselves must apply to the state to use PFML leave and benefits. For FMLA, its more complicated, as employers may be able to automatically designate leave as FMLA when an employee is absent for a qualifying reason. However, there is conflicting guidance on whether an employee can decline to use FMLA. The US Dept. of Labor says that employers must designate leave as FMLA if the leave is for a qualifying reason and neither employer nor employee can decline FMLA coverage, while at least one case from the US Court of Appeals for the 9th Circuit (which includes Washington) has found that employees can decline using FMLA leave if they choose. Cities should be aware of this split in how FMLA is interpreted when planning for employees to take FMLA leave.
Employees are also allowed to take both FMLA and PFML leave intermittently if they so choose.
What are an employee’s notice requirements to trigger FMLA and PFML leave?
When an employee gives notice that they are taking leave, it may be difficult for an employer to tell if an employee is giving notice of FMLA leave, PFML leave, or both concurrently.
FMLA notice can be either written or oral and need not explicitly mention FMLA. The notice only needs to contain enough information about the condition requiring leave
to let the employer know that it may be an FMLA covered reason, when the employee plans to start leave, and how long the employee plans to continue leave. If additional leave is required for the same condition or event, subsequent notice does need
to reference the FMLA-approved condition or the need for FMLA leave. Generally, when the need for leave is foreseeable (like a childbirth or planned medical procedure), the employee must give the employer 30-days’ notice, or otherwise at much
notice as is possible and practical. When the need for leave is unforeseeable, the employee must provide notice as soon as possible and practical.
The main difference with PFML notice to employers is that it must be written. Otherwise, the notice only needs to include the date of the notice, the general type of leave the employee is taking (medical, family, or both) and the anticipated start and
end dates or duration of the leave. Similar to FMLA notice, notice for foreseeable leave should be 30-days in advance, and for unforeseeable leave notice needs to be as soon as possible. Also like FMLA, PFML notice does not need to explicitly mention
PFML in order to be valid.
Are employers required to maintain and employee’s health coverage during FMLA or PFML leave?
For the most part, yes. FMLA requires an employer to maintain an employee’s health coverage like they normally do while the employee is on protected leave. An employee can still be held responsible for their portion of the health premium while they are on leave.
Maintaining health coverage during PFML leave is required only if the employee’s PFML leave overlaps with FMLA leave by at least one day. However, this means that an employee could use all their FMLA leave (12 weeks), start their PFML leave (12+
weeks) on the last day of their FMLA leave, and the employer would be required to maintain health coverage for the entire 24+ week period that the employee is out on leave.
Are employees required to apply for FMLA or PFML protected leave when they have a qualifying medical or family event?
It depends. Both FMLA and PFML are entitlements, making it the employee’s choice whether or not to use either or both forms of protected leave when they want. Employees can also choose to use other forms for leave instead of using FMLA or PFML. As we mention above, the law around FMLA is in flux, with a split between how the 9th Circuit Court of Appeals and how the US Department of Labor interpret an employee’s right to decline using FMLA. The 9th Circuit currently interprets the federal statute to allow employees to decline using FMLA if they choose, even if the absence is for a FMLA qualifying reason. In contrast the Department of Labor interprets the statute to not allow employees or employers to decline FMLA when the leave is for an FMLA qualifying reason. Cities should be aware of this split in authorities when they are working with employees taking leave, and understand that the law is not yet settled in this area.
Additionally, under FMLA, employers are permitted to make it part of their regular benefits policy to substitute an employee’s other accrued paid leave (like sick time, PTO, etc.) for FMLA leave when the employee takes leave.
Can a pregnant employee begin their FMLA or PFML protected leave prior to childbirth?
Yes, in some cases a pregnant employee can begin either their FMLA leave or PFML prior to childbirth if they have a pregnancy-related incapacity, such as being ordered on bedrest by their medical provider, morning sickness, and other pregnancy-related issues. Such conditions are considered “serious health conditions” under both FMLA and PFML that can trigger the right to take protected leave. Under the state’s PFML laws, pregnancy related “serious health conditions” can qualify a pregnant employee for up to an additional two weeks of paid leave under the PFML program. “Serious health conditions” under both FMLA and PFML need to be certified by a medical provider.