Paid Leave Questions

Ask Approach took a look earlier this month at the new Paid Family and Medical Leave (PFML) benefit for workers in Washington state. Now, we’re back with additional updates and guidance, based on research done by Approach staff along with Jenn Truong of Reinisch Wilson Weier PC and Linda Fang of Banyan Legal Counsel.

WA Paid Family and Medical Leave (PFML) and Time-Loss

Q:   Can PFML be accessed in the 3-day waiting period before time-loss is paid?

A:    PFML is not a good option for the 3-day waiting period before time-loss is paid because in most cases there is up to a one-week waiting period before PFML benefits are available. In addition, given the Employment Security Department’s backlog in processing PFML claims and the long waiting period for payment of benefits, in most cases is would not make sense to apply for PFML to cover the waiting period. If the injured worker’s claim is accepted by LNI, he or she should use other accrued, unused paid leave (such as sick leave, vacation, or PTO) to cover the 3-day waiting period before time-loss is paid.

Collective Bargaining Agreements and Prevailing Wage

Q:   Is it still true that PFML doesn’t apply to workplaces with a pre-Oct 2017 Collective Bargaining Agreement? Any updates on this?

A:    Union members who are covered by a CBA that has not expired, been reopened, or renegotiated since October 19, 2017 may not be eligible for PFML.

Q:   Do amounts paid toward Washington’s PFML program count toward prevailing wages?

A:    There does not appear to be specific information from the Employment Security Department (ESD) on this question. However, most likely the employer portion of the PFML premium, which is 0.337% of the 0.4% of employee gross wages, would not count toward the prevailing wage. The “employer portion” includes any amounts paid by the employer on behalf of the employee without a deduction from employee wages (including the employee portion of the PFML premium). The employee portion of the premium, which is 0.6333% of the 0.4% of employee gross wages, may count toward the prevailing wage.

Light-Duty/Stay-At-Work

Q:   An injured worker has returned to Light-Duty work. Can they be compensated for time-off to attend medical appointments scheduled during work hours while on light-duty?

A:    This used to be an easy answer, because L&I will not pay time-loss or loss-of-earning-power for employees to attend medical appointments related to their claim unless mandated by L&I (such as for an Independent Medical Exam). PFML probably doesn’t change this, because ESD advises that the program “is for times when something major keeps you away from work,” typically a week or more. PFML can also only be taken in 8-hour increments and cannot be paid in any week when workers’ comp benefits have been paid.

However, the WA Paid Sick & Safe Leave program introduced in 2018 does impact this guidance. That’s because employees can access Paid Sick and Safe Leave any time they miss work, as long as proper notification is given. Employers can still ask or recommend that the injured employee schedule doctor visits outside of regular work hours.

Coronavirus Concerns

Q:  How are the PFML and paid sick leave programs being impacted by COVID-19?

A:    The state of Washington has consolidated its coronavirus advice at https://www.coronavirus.wa.gov/business-workers. Of specific interest is the widening of “standby” unemployment benefits so that qualifying workers can earn up to 12 weeks of unemployment caused by COVID-19 restrictions without looking for a new job. There is also information for employers needing loans or grants due to COVID-19 impacts.

Q:   What is the liability from a workers’ comp standpoint if essential businesses ask employees to work and they contract Covid-19?

A:    The latest guidance from L&I is that “claims that meet certain criteria for exposure will be considered on a case-by-case basis. In most cases, exposure and/or contraction of COVID-19 is not considered to be an allowable, work-related condition.” Further analysis is on the Reinisch Wilson Weier PC website at https://rwwcomplaw.com/washington-covid-19-one/.