Washington's New Family and Medical Leave Program Takes Effect In 2020

Beginning January 1, 2020, Washington’s Family Leave Act will be replaced by Washington’s new Family and Medical Leave Program, resulting in substantial changes for employers and employees, though the funding of the program will begin January 1, 2019. The details below apply to the plan managed by ESD, but employers may choose to apply for a voluntary self-managed plan instead. Such plans are not covered below, but generally must provide at least the same level of benefits and cannot require higher premiums from the employee.

Paid Leave. For employees, the biggest difference will be the change from the current unpaid leave to the new paid leave. Employees who take qualifying leave will be entitled to pay for up to 12 weeks (with some exceptions described below). Employees are entitled to a weekly benefit of an amount that varies based on a number of factors, calculated generally as follows:

  • Determine the four quarters that make up the employee’s qualifying period (see “Qualifying for Benefits” below”). Of these four quarters, determine the two quarters in which the employee had the highest wages. The statute does not require those quarters to be consecutive.
  • Take the total wages from step 1 and divide by 26. This gives you the “Average Weekly Wage.”
  • Find Washington State’s average weekly wage from the ESD website. This number is typically updated annually in June. As of the time of this post, the most recent data was from 2016 with a state average of $1,133.
  • If the employee’s average (step 2) is less than half of the state average (step 3), then the weekly benefit is equal to 90% of their weekly average. For an employee making $500 per week, the benefit would thus be $450 weekly.
  • If the employee’s average (step 2) is more than half of the state average (step 3), then the weekly benefit is equal to (a) 45% of the state average plus (b) 50% of the difference between employee’s average and the state average. An employee making $2,000 per week would thus be entitled to $509 + $433, or $942 weekly.
  • If this results in a benefit less than $100 per week, then the benefit is set to the employee’s average from step 2.
  • If this results in a benefit greater than $1000 per week, then the benefit is set to $1,000 per week.

This is provided for exemplary purposes only, and due to the complicated nature of the new law you should consult a lawyer to ensure you are computing the benefits correctly. These benefits are paid by ESD, not the employer, though they are funded (like unemployment insurance) through premiums that are paid partially or entirely by the employer.

Premiums. The biggest change for employers will be these additional premiums. Employers with fewer than 50 employees are exempt from coverage, and employers with fewer than 150 employees may be eligible for grants and reimbursement when employees take leave.

The new law requires premiums of 0.4% of wages, which is separated into premiums for family leave and medical leave. The former is 1/3 of the total (roughly 0.13%) and the latter is 2/3 (roughly 0.27%). Thus, an employee who earns $36,000 will result in $48 of family leave premiums and $96 of medical leave premiums. The amount of wages subject to this calculation is capped at the taxable wage base set by the SSA, available at https://www.ssa.gov/planners/maxtax.html. In 2018, this cap is $128,400.

Further complicating matters, the family leave premium may be deducted entirely from the employee’s wages, while employers must pay at least 55% of the medical leave premiums (deducting 45% from wages). An employer could cover some or all of the employee contributions instead of deducting them from wages, if desired.

Qualifying for benefits. In practice, employers will likely not need to determine whether an employee qualifies for benefits, as ESD will maintain qualifying data based on the hours reported by employers.

Under the current law, an employer simply looks at the total hours worked by the employee over the past 12 months. If the employee worked 1,250 hours or more, they are eligible for unpaid leave.

The new law modifies this calculation. The employee’s hours are measured based on the preceding four quarters (or the four quarters preceding the last full quarter if needed) to determine if the employee worked 820 hours or more. For example, if the leave is requested within Q3 of 2025, ESD will calculate hours from Q3 of 2024 through Q2 of 2025. If the employee does not qualify in that period, ESD will look at Q2 of 2024 through Q1 of 2025. If the employee worked 820 hours in either of those spans, they are eligible for leave. In calculating the average weekly wage above, ESD will use the two quarters with the highest wages.

Portability. Another significant change is that this leave is now portable. Given that premiums are collected by ESD, even across consecutive (or concurrent) employers, an employee’s eligibility is tracked by the state across multiple jobs.

Expansion of Family. The current protections allow an employee to care for a child, parent, spouse, or domestic partner. The new law expands this to include grandparents, grandchildren, and siblings.

Duration. These benefits are available for a period of 12 weeks for leave, or 16 weeks if the employee has both family and medical leave, or 18 weeks if the employee is dealing with a serious health condition due to pregnancy.

Notice. An employee is required to give an employer notice of their intent to take leave. This notice should be at least 30 days in advance, unless that is impossible in which case notice should be given “as is practicable.” The law additionally requires that the employee make reasonable efforts to schedule any necessary treatments (including of a qualifying family member) to minimize work disruptions. Presumably, this means that any procedures should be scheduled outside of work hours if possible.