FMLA in Washington State

Private and Public Sector Employees:

Family and Medical Leave

• Under Washington's Family Leave Act (FLA) employees are eligible for the same leave and same amount for the same reasons as the federal Family and Medical Leave Act.
• The FLA surpasses the FMLA by providing additional benefits for pregnant women.
• The Washington State Human Rights Commission (WSHRC) regulations against discrimination also provide leave for the time a woman is sick or temporarily disabled due to pregnancy or childbirth.
• Benefits a pregnant employee receives under WSHRC rules depend upon the number of workers the woman's employer has:
  • If the employer has fewer than eight employees, the employee is not guaranteed a job when she is able to return to work.
  • If the employer has eight or more employees, the employee is allowed maternity disability leave and is entitled to return to work when released by her health care provider. The disability leave is based on her individual condition and it may include all the time her health care provider determined she is unable to work.
• Under the commission's regulations against discrimination, employers must treat a woman on pregnancy related leave the same as other employees on leave for sickness or other temporary disability
• Employers must provide the same disability leave benefits to women who are pregnant or have recently given birth--just as they provide to any other employee.
• This also means that disabilities related to pregnancy or childbirth cannot be excluded from an employer’s other leave or benefits policies
• This rule applies whether the employees qualify got either federal FMLA or state FLA.
• The described leave for pregnant women is in addition to their other benefits for family leave purposes.
• The allowed amount of leave is that which is medically necessary to address any disability due to pregnancy or childbirth, depending on the woman's individual condition.
• Although the amount of disability leave is not set, the usual amount recommended by health care providers for childbirth without complications is six to eight weeks.
• The amount of disability leave can vary according to an individual's situation.
• Complications due to pregnancy, childbirth, or related conditions may result in extended pregnancy disability leave.
• An employer should consult with the commission to learn how to address special extended disability leave issues.
• If a woman has not worked long enough to qualify for the FMLA, but does work for an employer with eight or more employees, she is entitled to disability leave under the WSHRC rules until she is released to return to work by her health care provider.

FLA Leave

• Employers with 50 or more employees must grant more time off to women who give birth in addition to the 12 weeks of leave under the federal FMLA.
• A woman is entitled to time off for any disability due to pregnancy and childbirth.
• The post-partum period as determined by a health care provider under WSHRC rules also entitles a woman to time off.
• Time allotted for this leave as described above is in addition to the 12 weeks of leave granted under the state FLA or federal FMLA.

Interaction Between FLA, FMLA, and Pregnancy Disability

• Pregnancy disability leave may run concurrently with the federal FMLA.
• FLA can only be taken after the woman has exhausted her WSHRC pregnancy disability leave.
• Once a woman's leave for pregnancy disability ends, she is entitled to use the balance of her leave available under federal FMLA and state FLA in order to
  • Care for the newborn baby.
  • Care for a sick spouse, child, or parent.
  • Other personal illness she may have during the 12-month period
• For all other qualifying reasons (other than pregnancy- or childbirth-related disabilities) the FLA may run concurrently with the FMLA.
• The only time FLA and FMLA do not run concurrently is when a woman takes leave for pregnancy- or childbirth-related conditions.
• Where pregnancy- or childbirth-related conditions are present, FMLA will run concurrently with the pregnancy or childbirth-related disability, but the FLA will not.

Paid Family Time Off

• Under Washington's Family Care Act (FCA), if an employer provides employees with paid time off of any type, the employee may use the time for family leave.
• The paid time off may be used for purposes including:
  • Sickness.
  • Vacation.
  • Personal or disability leave.
  • Compensatory time off.
• The FCA covers all employers in the state, in both public and private sectors.
• The FCA covers all employers regardless of the number of their employees.
• Employees do not have to meet any minimum service requirements to be eligible for FCA leave.
• Any employee who accrues and is eligible to use any kind of paid leave may use that leave for family purposes.

Leave Use and Restrictions

• Employers may use accumulated leave to care for:
  • The employee's child who has a health condition that requires treatment or supervision
  • A spouse, parent, parent-in-law, or grandparent of the employee who has a serious health condition or an emergency condition
• An employee is not allowed to take advance leave. In other words, he or she must wait until the leave has been earned
• An employee taking FCA leave must comply with the terms of any applicable collective bargaining agreement or employer policy, with the exception of any terms relating to the choice of leave.

Definitions of Family Members

• " Child " means a biological, adopted or foster child, a stepchild, a legal ward or a person standing in loco parentis who is under 18 years of age.
• " Child " can also mean a biological, adopted or foster child, a stepchild, a legal ward or a person standing in loco parentis who is 18 years of age or older and incapable of self-care because of a mental or physical disability.
• " Grandparent " means a parent of a parent of an employee.
• " Parent " means a biological or adoptive parent of an employee or an individual who stood in loco parentis to an employee when the employee was a child.
• " Parent-in-law " means a parent of the spouse of an employee.
• " Sick leave or other paid time off " means time allowed under the terms of an appropriate collective bargaining agreement or employer policy, as applicable, to an employee for illness, vacation, and personal holiday.
• " Spouse " means a husband or wife, as the case may be.

Military Leave

• Under Washington's military leave law, an employee who is the spouse of a member of the armed forces, National Guard or Reserves who has been notified of an impending call or order to active duty, or who has been deployed, is entitled to up to 15 days of unpaid leave.
• The maximum of 15 days of unpaid leave is per deployment after the military spouse has been notified of the impending call or when the military spouse is on leave from deployment.
• An employee is a person who performs service for hire for an employer for an average of 20 or more hours per week.
• An employer who takes this kind of leave is entitled to be restored to a position of employment as an employee taking FMLA leave.
• The employee must notify his or her employer of the employee's intention to take this leave within five business days of receiving official notice of an impending call or order to active duty, or of a leave from deployment.
• Any employee who is a member of the Washington National Guard or Reserves is entitled to military leave for up to 21 days during each year (October 1-September 30).
• The above leave may be used so that the employee may take part in active training duty.
• The leave is granted in addition to any vacation or sick leave to which the employee might otherwise be entitled.
• The leave shall not result in any loss of efficiency rating, privileges, or pay.

Domestic Violence

• Under Washington's domestic violence law, an employee may take reasonable leave from work, including intermittent leave, or leave on a reduced leave schedule in order to:
  • Seek legal or law enforcement assistance or remedies to ensure the health and safety of the employee or employee's family members.
  • This includes preparation for, or participating in, any civil or criminal proceeding related to or derived from domestic violence, sexual assault, or stalking.
  • Seek treatment by a health care provider for physical or mental injuries caused by domestic violence, sexual assault or stalking, or to attend health care treatment for a victim who is the employee's family member.
  • Obtain, or assist a family member in obtaining, services from a domestic violence shelter, rape crisis center, or social services program for relied from domestic violence, sexual assault or stalking.
  • Obtain, or assist a family member in obtaining, mental health counseling related to an incident of domestic violence, sexual assault or stalking, in which the employee or the employee's family member was a victim of domestic violence, sexual assault, or stalking participate in safety planning, temporarily or permanently relocate, or take other actions to increase the safety of the employee or employee's family members from future domestic violence, sexual assault or stalking.
• A family member is defined as a person whose relationship to the employee can be classified as a:
  • Child.
  • Spouse.
  • Parent.
  • Parent-in-law.
  • Grandparent.
  • Person with whom the employee has a dating relationship.
• An employee is required to give an employer advance notice of the employee's intention to take leave that is in compliance with the employer's stated policy for requesting such leave.
• The employer may require that the need for leave be verified.
• An employee who is absent from work for this type of leave may use the employee's sick leave and other paid time off, compensatory time or unpaid leave time.
• The taking of this leave may not result in the loss of any pay or benefits to the employee.
• The employee must be restored to his or her position of employment that he or she held when the leave began.
• All employers, regardless of size, are covered.
• Family members may also take reasonable leave to help a victim obtain necessary treatment or services.

State Laws—Enforced by Labor and Industries

Family Care Act (FCA)

• Employees can use paid leave, such as sick leave, vacation, holiday, PTO, and some short term disability plans
• Employees can use paid leave to care for sick family members, including
  • Spouse.
  • Child.
  • Parent.
  • Parent-in-law.
  • Grandparent with a serious health condition
• Family Care Act covers care of a child < 18 years old with a routine childhood illness or needed preventative care, and also for the disability of an adult child
• FCA covers short-term care of pregnant spouse during or after childbirth, as needed
• FCA applies to all employers who provide a paid leave benefit

Family Leave Act (FLA)

• Applies only to women who are pregnant
• FLA covers employers with ≤ 50 employees within a 75 mile radius, and employees with 1,250 work hours in the past year [same as FMLA]
• FLA is typically unpaid leave unless employer policy covers employee for paid leave.
• FLA Leave for disability due to pregnancy or childbirth is in addition to 12 weeks under either FMLA and/or state FLA for the care of a newborn, sick spouse, parent, child, or other personal illness.
  • Pregnancy disability leave is typically 6-8 weeks as determined by a healthcare provider and based on an individual's condition.
  • Pregnancy disability leave could include the period of time before childbirth.
• Elements identical to FMLA will be enforced by USDOL (United States Department of Labor)

Leave for Victims of Domestic Violence and their Family Members

• Allows victims of domestic violence, sexual assault, or stalking to take reasonable leave from work for legal or law-enforcement assistance, medical treatment, or counseling.
• Allows family members to take reasonable leave to help a victim obtain needed treatment or services.
• This kind of leave is unpaid.
• Family members are defined as:
  • Child
  • Spouse
  • Parent-in-law
  • Grandparent
  • Person the employee is dating.
• All employers are covered by this leave provision regardless of size.
• Whenever possible, an employee must give advance notice of the need for this leave.

Leave for Spouses of Deployed Military Personnel

• This provision allows spouses of military personnel deployed or on leave from deployment during times of military conflict to take 15 days unpaid leave from work per deployment.
• Spouses of returning military personnel whose deployment orders have ended are not covered by this provision.
• Leave is without pay, but accrued leave may be substituted.
• This provision covers all employers, public and private, regardless of size.
• An employee as defined by this provision is one who works on average 20 hours or more per week.

Family Leave Insurance

• Passed by legislature in 2007
• Allows parents to take time off to bond with a newborn or newly placed child.
• Establishes a benefit of $250 per week, effective October 1, 2009.
• Employees who have worked 680 hours over four quarters are eligible for income benefits.
• Employees are eligible for job protection if an employer has more than 25 employees who work 1,250 hours or more per year.
• This insurance is administered by the Employment Security Department

State Laws-Enforced by Washington State Human Rights Commission

Sex Discrimination

• Covers employers with ≥ 8 employees.
• Pregnant employees are covered for the period of time before and after childbirth.

Pregnancy Disability Leave

• A healthcare provider determined when an employee can no longer work.
• Typically 6-8 weeks of leave is provided, as determined by a healthcare provider and based on the condition of the individual.
• Employees who use this leave are entitled to the same benefits that an employer offers other employees on temporary disability leave.
• Employees who use pregnancy disability leave are allowed to return to the same or similar job after leave.

Family Medical and Leave Act (FMLA) - State Laws-Enforced by U.S. Department of Labor

• FMLA applies to employers with ≥ 50 employees within a 75 mile radius; employees must have worked 1,250 hours in the past year.
• FMLA covers unpaid leave-12 weeks of care of self or family member with a serious health condition. This includes spouse, child, or parent.