A bill expanding employment protections and addressing concurrent leave under the state’s Paid Family & Medical Leave (PFML) law is scheduled for a hearing this week. The bill is similar to draft proposals AWC wrote about in December.

HB 1213, sponsored by House Labor & Workplace Standards Committee Chair Rep. Liz Berry (D – Seattle), makes major changes to the way that employment protections work under PFML and allows employees to be eligible for PFML employment protection after only 90 days with their current employer. “Employment protection” (also called “employment restoration” in the bill) refer to an employee’s right to be restored to their previous job or a job with equivalent pay, benefits, and working conditions upon returning from leave. The bill also makes major changes to the way certain PFML benefits work between state PFML and unpaid federal Family & Medical Leave Act (FMLA) leave. It does not change PFML premium rates nor does it impact PFML paid leave benefits eligibility.

Employment protection eligibility

Under current law, employees are only entitled to employment protections if they meet three requirements: 1) work for an employer with 50+ employees, 2) have worked for that employer for at least 12 months prior to taking leave, and 3) have worked at least 1,250 hours in that time. HB 1213 replaces this three-factor test and makes all employees who have worked for their employer for at least 90 days prior to taking leave eligible for employment protection, regardless of employer size or number of hours worked.

Under the bill, it would be possible for employees to forfeit the right to employment restoration if they do not exercise their rights on the first scheduled workday following leave or first scheduled workday following a total leave period of 16 weeks (or 18 weeks in certain pregnancy related cases). The bill also ties the employer’s obligation to continue health insurance for employees on leave to the period of time that PFML job protections apply. In most cases, it would also require employers to provide at least 5-days written notice estimating the expiration date of their right to employment restoration and the date of the employee’s first scheduled workday.

Making FMLA count towards employment protection

Under the bill, if an employer wants an employee’s unpaid federal FMLA leave to count towards the total amount of leave to which state employment protections apply, the employer needs to provide written notice to the employee that informs the employee:

• That the employer is designating the unpaid leave as part of their 12 weeks of federal FMLA leave.
• Of the start and end dates of their FMLA leave year.
• That since they are not applying for PFML benefits when they are otherwise eligible, that the employer is counting the unpaid leave towards the maximum periods of PFML employment protections noted above.
• That the use of unpaid FMLA leave does not impact their eligibility for paid leave benefits under state PFML.

The above employer notice must be provided within five business days of either the employee’s original request or use of FMLA leave or at least monthly for the remainder of the employee’s FMLA leave year. The bill also allows the Employment Security Department (ESD) to require employers to collect and report information on the use of employment restoration.

Finally, the bill also requires ESD to develop a written statement of employee rights for employers to distribute to employees. ESD is also required to do outreach about employer responsibilities on premium collections, notice requirements, and employment protection.

City impact

Over half of Washington cities have fewer than 50 employees and would be required to provide job protections for employees taking PFML leave under HB 1213. When the PFML law was originally passed, small employers were exempted from employment protections since it is harder to hold open a job for a significant length of time with limited staff to spread out the workload. While the bill does not outright prohibit stacking state PFML and federal FMLA leave (i.e. the practice of taking FMLA and PFML separately instead of concurrently, to maximize the total time of protected leave), it does provide a disincentive to do so by docking the length of time employers must provide employment protections and health coverage under state law. 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.

A recent study on PFML employment protections found that while workers that were eligible for employment protection applied for PFML benefits at higher rates than those not eligible for employment protection, the percentage of employees that were employed by their previous employer after returning from leave were nearly the same.

AWC will be testifying with the concerns about the costs and impact on city employers of this expansion.

Dates to remember

HB 1213 is scheduled for a hearing in the House Labor & Workplace Standards Committee on January 21 at 10:30 am.