With the question of how its estimated $25 million cost will be funded remaining unanswered, Gov. Gregoire recently signed legislation creating a family medical leave insurance program for workers in the state of Washington. This new law also holds other surprises that may take many employers off guard.
Paid benefit. Under the new law, starting Oct. 1, 2009, eligible Washington employees can receive a maximum of $250 a week for up to five weeks following the birth or placement of a child. Eligibility for the new benefit follows a seven-day waiting period. In addition, employees must have been employed for at least 680 hours during the qualifying year, file a weekly claim for the benefit, and authorize the release of confidential information. If an employee willfully submits false information, the employee becomes disqualified from future benefit for 52 consecutive weeks. The basic benefit, $250 a week, may be reduced if the employee works some hours during the week, or routinely worked less than 35 hours a week.
Unknown funding. As originally proposed, a two cents (2¢) per hour tax on all workers funded this benefit. However, as it passed through the legislative process, this funding by payroll deduction disappeared leaving it for a 13-member task force, made up of legislators, large and small business representatives, labor, family leave advocates, and a governor appointee, to come up with the answer and report back to the legislature on Jan. 1, 2008. This leaves a question as to whether employers will be required to help fund this program in the future.
Protection extended to smaller employers. Buried in the new legislation is the component that will affect many Washington State employers. In addition to giving eligible employees a paid benefit for time taken off work for the birth or placement of a child, the new law also extends some FMLA protection to employees of an estimated 330,000 additional Washington State employers.
While full FMLA leave benefits still only apply to employers with 50 or more employees, beginning on Oct. 1, 2009, any employer with 25 or more employees will have to provide up to five weeks of unpaid leave to employees following the birth or placement of a child. This leave is in addition to that required under Washington’s pregnancy leave law.
Those same employers will need to reinstate employees returning from leave into the position they held prior to starting leave, or to an equivalent position. To be eligible for job restoration, the employee must have worked for the employer at least 1,250 hours over the previous 12 months. In addition, as with current family leave law in Washington, employees will be able to sue their employer for failing to reinstate them upon their return from leave.
Training needed. To avoid legal claims, employers need to train their supervisors to recognize their subordinate’s rights under this new law. Without such training, a supervisor may give an employee faulty information about the availability of leave or the employee’s right to return to his or her job at the end of such leave.
Employers should also take steps to ensure that employees taking leave under the new law are not discriminated against in any way upon return to work. Keep in mind that discrimination is often not intentional. This risk is particularly challenging for smaller employers, where the absence of an employee puts a tremendous strain on the remaining workforce. This stress can easily result in negative comments by supervisors or coworkers when the employee returns to work. In addition, while perhaps unintentional, the extended absence and its effect on the workplace could affect a supervisor’s evaluation of the returning employee on a subsequent performance review. These actions have the potential to result in legal claims against the employer.
With two years to prepare, employers can be proactive and put plans in place now to address workplace issues, training, and potential liabilities associated with this new law.
Carol McCaulley is an attorney with local law firm Schwabe, Williamson & Wyatt. She can be reached at 360-905-1101 or cmccaulley@schwabe.com.
