Change of Law: Hospital Action Required
|To:||Hospital CEOs, Human Resources Leads, Legal Counsel, and Government Affairs Staff|
|From:||David Streeter, Policy Director- Clinical and Data
|Subject:||Upcoming Changes to Washington’s Paid Family Medical Leave Program|
The purpose of this bulletin is to inform hospitals about legislative changes made during the 2021 session to the Washington State Paid Family and Medical Leave (PFML) program:
- Employees will be able to use the PFML program to provide care for an expanded list of individuals under the amended “family member” definition, effective July 25, 2021.
- Employees otherwise ineligible for the state PFML program may qualify for a Pandemic Leave Assistance Employee Grant, beginning August 1, 2021. There is no cost to employers to pay for this new program.
- Employers with fewer than 150 employees may be eligible for a one-time Pandemic Leave Employer Assistance Grant if an employee receives a Pandemic Leave Assistance Employee Grant. This is to help offset the cost of an employee being out on leave.
- Chapter 50A.05 RCW is clarified to reduce previous ambiguity for family leave claims that occurred before January 1, 2020.
Expanded “Family Member” Definition
This change applies to all employees who are eligible for participation in Washington State’s PFML program. Additionally, this expanded definition applies to voluntary employer-paid leave programs under chapter 50A.30 RCW that are approved by the Washington State Employment Security Department (ESD).
Pandemic Leave Assistance Employee Grant
The Pandemic Leave Employee Grant program applies to workers who are ineligible for the Washington State PFML program because they worked fewer than 820 qualifying hours in 2020. Eligible leave claims must have an effective date in calendar year 2021 and conclude by March 31, 2022.
Pandemic Leave Assistance Employer Grant
Participation in the Pandemic Leave Employer Grant program is limited to employers with fewer than 150 employees. To be eligible, employers must also pay employer premiums into the Washington State PFML program.
- Review the contents of this bulletin and share with Human Resources staff.
- Ensure Human Resources staff understand the new law and implications for employees who may be applying for PFML.
The COVID-19 pandemic created a significant demand for medical and family leave by workers throughout Washington State. This created opportunities for the legislature to modify the program during the 2021 legislative session through three different pieces of legislation.
ESSB 5097– Expanded “Family Member” Definition
Employees may use their state or employer PFML programs to care for themselves or a family member. RCW 50A.05.010 currently defines “family member” as “a child, grandchild, grandparent, parent, sibling, or spouse of an employee.” Beginning July 25, 2021, the definition of “family member” will expand to:
“Family member’ means a child, grandchild, grandparent, parent, sibling, or spouse of an employee, and also includes any individual who regularly resides in the employee’s home or where the relationship creates an expectation that the employee care for the person and that individual depends on the employee for care.”
“Family member includes any individual who regularly resides in the employee’s home, except that it does not include an individual who simply resides in the same home with no expectation that the employee care for the individual.”
This change applies to both Washington State’s PFML program and employers’ ESD-approved voluntary paid leave programs. In June 2021, ESD filed a CR-102 rulemaking proposal indicating the intent to update application and documentation requirements to reflect the changes made by ESSB 5097.
E2SHB 1073 – Pandemic Leave Assistance Grants for Employees and Employers
To qualify for paid leave through either the state PFML program or an employer’s approved voluntary program, an employee must work 820 hours during the qualifying period, which RCW 50A.05.010 defines as:
- The first four of the last five completed calendar quarters; or
- If eligibility is not established, the last four completed calendar quarters immediately preceding the application for leave.
The COVID-19 pandemic led to high unemployment rates during 2020, which prevented many unemployed workers in Washington State from accruing sufficient hours to qualify for any paid leave benefit. To remedy this, the legislature created the Pandemic Leave Assistance Employee Grant Program (Employee Grant) for workers who do not satisfy the hours-worked threshold. The Employee Grant is available for claims with an “effective start date in 2021 through March 31, 2022.” The benefit is equal to the benefit offered through the Washington State PFML program.
To qualify for the Employee Grant established in E2SHB 1073, an employee must satisfy either of these conditions:
- The employee worked 820 hours in employment during the first through fourth calendar quarters of 2019; or
- The employee worked 820 hours in employment during the second through fourth calendar quarters of 2019 and the first calendar quarter of 2020.
Employees may begin applying for grants through ESD beginning August 1, 2021.
If an employee receives an Employee Grant, then their employer may be eligible for a one-time grant under the Paid Leave Assistance Employer Grant Program (Employer Grant). To be eligible for the Employer Grant, the employer must employ 150 or fewer employees and pay employer premiums into the state PFML program. The grants available to employers are:
- $3,000 to offset the cost of hiring a temporary worker; or
- $1,000 “as reimbursement for significant wage-related costs due to the employee’s leave.”
Additional funds may be available for recipients of reimbursement grants to hire a temporary worker if the employee’s leave extends beyond the employee’s initial leave plan.
The legislation does not specify an opening date for the Employer Grant Program.
The legislature appropriated $168 million in federal American Rescue Plan funds to create both grant programs. Grants will be awarded until the funds are exhausted. The two grant programs will sunset on June 30, 2023.
HB 1087– Continuity of Family Leave Rights
Washington State’s PFML program officially opened January 1, 2020. However, the program’s implementation created ambiguity regarding the rights associated with family leave claims initiated before December 31, 2019 under the state’s previous paid leave law in repealed chapter 49.78 RCW. To clarify the ambiguity, the legislature passed HB 1087, which states:
“[T]he passage of the paid family and medical leave act did not sever, impair, extinguish, or in any way affect the rights, liabilities, or obligations under chapter 49.78 RCW as it existed prior to January 1, 2020. A cause of action for conduct, acts, or omissions occurring on or before December 31, 2019, under chapter 49.78 RCW remains available within its applicable statute of limitations.”
This clarification means that the provisions in repealed chapter 49.78 RCW still apply to family leave claims that occurred before January 1, 2020.
Hospitals should review these PFML program changes and adjust policies, as necessary. They should also communicate these PFML program changes to their employees in advance of their effective dates. Human Resources staff should watch for updates from ESD regarding the implementation of these bills and opening dates for the Employee Grant and Employer Grant programs.
ESSB 5097 and E2SHB 1073 Background
The final versions of ESSB 5097 and E2SHB 1073 differ significantly from their original versions. The two bills were nearly identical and proposed permanent changes to the PFML program. The original legislation included a very broad definition of “family member,” adjustments to lower the PFML qualifying requirements, and sections addressing health insurance continuity. The business community, led by the Association of Washington Business, heavily negotiated the two bills to minimize their impact on employers. The negotiations ultimately resulted in a limited “family member” definition expansion in ESSB 5097 and a redesigned version of E2SHB 1073 that is narrowed to its pandemic assistance programs.
PFML Program Background
Washington State’s PFML Program provides paid leave coverage to eligible employees to care for themselves and family members. Employees and employers began paying PFML premiums in 2019, followed by PFML program benefit payouts beginning January 1, 2020. The state program is available to most workers in Washington State. Additionally, some employers offer their own alternative paid leave programs in accordance with the provisions in chapter 50A.30 RCW. Benefits in employers’ voluntary alternative programs are required to be “at least equivalent to the benefits the employees are entitled to as part of the state’s” PFML program. All voluntary programs are subject to ESD approval. Please visit Washington State’s PFML website for additional background about the PFML program.
WSHA’s 2021 New Law Implementation Guide
Please visit WSHA’s new law implementation guide online. The Government Affairs team is hard at work preparing resources and information on the high-priority bills that passed in 2021 to help members implement the new laws, as well as links to resources such as this bulletin. In addition, you will find the Government Affairs team’s schedule for the release of upcoming resources on other laws and additional resources for implementation.
ESSB 5097 – Expanding Coverage of the Paid Family and Medical Leave Program
E2SHB 1073 – Paid Family and Medical Leave Pandemic Assistance Grants
HB 1087 – Employee Family and Medical Leave Rights Continuity
Title 50A RCW – Family and Medical Leave
Chapter 50A.05 RCW – Family and Medical Leave General Provisions
Chapter 50A.30 RCW – Family and Medical Leave Voluntary Plans
CR-102 – 2021 PFML Legislation Implementation