Washington Family Leave and FMLA: Guide for Employers

Washington Passes a Family Leave Law

In 2007, Washington passed the Family Leave Act (FLA), which expanded the leave provisions provided under the U.S. FMLA. At the time only two other states had FMLA laws, California and New Jersey. Since then, 8 other states have added Family and Medical Leave Laws.

The Washington FLA is written to provide separate leave in specific circumstances. However, it does not provide protected leave to more employees than would already be eligible under the Federal FMLA laws. The purpose of this guide is to provide an outline of the rules of FLA and the differences between FLA and FMLA so that compliance will be easier for employers.

Washington also passed a paid Family Leave Insurance program. However, due to budgeting constraints, the implementation of the insurance program was delayed and then permanently put on hold. Currently Washington State does not have a plan in the foreseeable future to provide paid leave in connection with Family Leave.

Qualifying for Family Leave

FLA provides up to 12 weeks of protected leave in a 12 month period. Family Leave has the same provisions as Federal FMLA. First, employers must qualify with at least 50 employees within a 75 mile radius. Once the employer qualifies, their employees can become eligible.

In order for an employee to be eligible for Washington’s FLA, they must have worked for their employer at least 12 months and at least 1,250 hours in the last 12 months. This follows the same requirements as found under the U.S. FMLA. This makes it easier for employers to determine which employees are eligible.

Taking Leave under FLA

Family Leave typically runs concurrently with FMLA leave. Employees can take leave after the birth of a child to care for the child. Employees can also take leave after a child is placed in their home through foster care or adoption. Additionally, employees can take family leave if the family member has a serious health condition. Lastly employees can take leave if they have a serious health condition that makes the employee unable to perform their job function. All of these conditions are covered under the leave provisions of the Federal FMLA. However, some family relationships allowed under FLA are not allowed under FMLA.

Qualified Family Members Under The Family Leave Act

Family Leave allows protected leave to either care for and bond with a new child or to care for a family member with a serious health condition that makes them unable to perform job functions. The updated FLA recognizes children through biological, adoptive, foster, step, legal wards and children of in loco parentis relationships. Children have to be under the age of 18 or, if over 18, incapable of self care. Additional family relationships allowed under FLA include parents, spouse or state registered domestic partner.

  • Child: adopted, biological, step, foster, legal ward or in loco parentis
  • Parents
  • Spouse
  • Washington State Registered Domestic Partner

Domestic partners are not allowed for family leave under the U.S. FMLA rules. Therefore, if an employee takes FLA for a domestic partner, the leave would not run concurrent with FMLA leave.  

Taking Leave that Doesn’t Run Concurrently with FMLA

Washington State specifies three circumstances in which FLA and FMLA do not run concurrently. In all other uses of FLA, the employee’s FMLA leave would run concurrently.

Taking FMLA During Pregnancy Disability and Postpartum Recovery

Family Leave does not allow leave for pregnancy disability or postpartum recovery. In fact, FLA starts when a woman’s doctor releases her for work. This means that if a woman takes FMLA during pregnancy due to pregnancy disability or after the birth of a child to recover, FLA does not run concurrently.

For example, if a woman uses 12 weeks of FMLA during pregnancy for disability, FLA would not run concurrently. After the 6 weeks of recovery from birth, the mother could then take 12 weeks of FLA for the purposes of bonding with her child.

In another example, a woman does not take any time off during pregnancy, but takes off 6 weeks of FMLA to recover from birth. FMLA would run independently and after the 6 weeks of FMLA leave, the woman would then have 12 weeks of FLA leave to bond with her child. During the first 6 weeks of her 12 week FLA, FMLA would continue to run.

Taking FLA to Care for a Domestic Partner

Employees who take Family Leave to care for the serious illness of a state registered domestic partner do not have FMLA run concurrently with FLA. This is because FMLA does not recognize domestic partners as family relationships. Therefore an employee could take up to 12 weeks of FLA to care for a domestic partner and would still have 12 weeks of FMLA to bond with a new child, to care for another family member’s serious illness, or to care for their own serious illness.

Taking FMLA under a Qualifying Exigency

Washington Family Leave Act does not allow leave for military exigencies. Unless the qualified service member is a child, spouse, parent or domestic partner with a serious health condition, FLA does not run. FMLA allows for employees to take leave for family relationships not allowed under FLA if the employee is the covered service member’s next of kin. In addition, FMLA allows for leave for several exigencies such as preparing for a short notice deployment, attending military ceremonies and other reasons. For a full list of military exigencies, see our article of Family Medical  Leave Act.  

Important Aspects of FLA

Family Leave allows the employee to take intermittent leave. Employers and employees can agree to allow the employee to have a reduced schedule or intermittent leave when the employee takes leave to bond with a new child. However, the employer does not have to agree, but must allow the employee to take intermittent leave when the employee is taking leave due to a serious health condition. This is true when leave is taken for the employee’s own serious health condition or for a family member’s serious health condition. Employers can allow employees to take intermittent leave in the smallest blocks of time allowed by the employer’s payroll system. For example, if the employee takes 4.5 hours of leave, but the employer’s payroll system only allows leave in hour blocks, the employer can count the employee as taking 5 hours of leave.

Notification & Certification Requirements

Just like FMLA stipulates, FLA requires a 30 day notice to employers. If leave is unforeseeable, such as in an emergency situation, the employee must provide notice as soon as is practicable. Employees must also make an effort to take leave when it does not unduly disrupt the operations of the employer.

Employers can require a certification of the need for FLA leave. Certifications must include the date that the serious health condition commenced, the probable time of duration, appropriate medical facts. If certification is for an employee’s serious health condition, certification must also state that the employee is unable to perform their essential job functions. When an intermittent leave is taken, the certification should also include the expected duration and schedule of the intermittent leave. Employers can require up to 3 certifications of leave. If the employer requires more than 1 certification, the cost of the additional certifications must be paid by the employer.

Spouses Employed at the Same Company Taking FLA Leave

When spouses are employed by the same employer, FLA leave can be shared between the spouses, but only in certain circumstances. Many employers are unaware the FMLA also only allows sharing of the 12 weeks of leave in certain circumstances. Specifically, spouses share the 12 weeks of FMLA leave when they take leave for bonding after the birth or placement of a child and for a parents own serious health condition.

  1. To bond after the birth of placement of a child into the home
  2. For a parents serious health condition.

For example if a husband takes leave to care for his parent for 7 weeks, then his wife can also take another 5 weeks to care for her parent.

However, if instead of a parent, their child is seriously injured, then his wife can take a full 12 weeks to care for their child. The husband has already used 5 weeks, but would also be able to take another 7 weeks to care for their child.

In another example, a wife uses 4 weeks to bond with a new baby. That would leave her husband another 8 weeks to bond with their child. However, if the wife is seriously ill and the husband takes leave to care for his wife, then the leave would not be shared. That means that the husband would have the full 12 weeks to care for his wife. In addition, the wife would also have another 8 weeks for her own serious illness.

Benefits During FLA

FLA does not require medical or dental benefits to be maintained or paid by the employer for the employee while on leave. However, it does require that the employee be allowed to continue benefits at the employee’s own expense. Employers can charge a 2% administrative fee on top of the full cost of the premiums to employees.

Notice and Retaliation Protected under FLA

Employers are required to provide notice to employees of their rights under FLA. In addition, employees are protected against any retaliation for using FLA or for attempting to use FLA. Employees are also protected if they file a complaint under the law or testified or gave any information in any legal action or investigation for the employer under FLA. This includes any discriminatory actions by the employer, firing, or retaliation.

Let SwipeClock Help

Employers in Washington must comply not only with the Family Leave Act and FMLA, but also with Washington’s Sick Leave Laws, and the Family Care Act. In addition, those businesses are also finding themselves accountable to Federal employment laws, state labor laws, and local city ordinances. This makes it increasingly difficult and time consuming for Human Resource departments and Payroll personnel to track.  

The cost of non-compliance costs businesses billions in fines and remedies every year.

SwipeClock provides a comprehensive array of workforce management and time tracking tools that can help businesses to more easily stay in compliance with local and national laws.

Records are effortlessly kept for years and accrual is automatically tracked and reported to employees according the state and city laws. Additionally, with geo-timekeeping clocks, businesses can effortlessly track time worked in specific cities to ensure compliance.

One of the best ways to maintain records and ensure compliance is through SwipeClock’s comprehensive array of workforce management and time tracking tools that can help businesses to more easily stay in compliance with local and national laws.

Records are effortlessly kept for years and accrual is automatically tracked and reported to employees according the state and city laws. Additionally, with geo-timekeeping clocks, businesses can effortlessly track time worked in specific cities to ensure compliance.

About SwipeClock

SwipeClock is a leading provider of cloud-based integrated workforce management solutions that include automated time and attendance, advanced scheduling, and leave management capabilities.

The company’s products, including TimeWorksPlus, TimeSimplicity and Workforce Management Clock enable employers to manage their most important and expensive asset-employees-by transforming labor from a cost of doing business to a competitive advantage.

SwipeClock’s workforce management solutions are sold through over 850 partners that empower more than 26,000 businesses to lower labor costs, comply with regulatory mandates, and maximize their profits. For more information, please visit www.swipeclock.com.

Resources

Family Leave Act Q&A

Washington Family Leave Act

Written by Annemaria Duran. Last updated July 3, 2017.

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