Changes to Washington’s Pregnancy and Leave Laws

Accommodation of Pregnant Employees

Effective July 23, 2017, employers in Washington State with 15 or more employees must provide specific reasonable accommodations for pregnant employees.  Undue hardship is not an excuse for some of the accommodations, including:

  • Providing more frequent, longer, or flexible restroom breaks
  • Modifying a no food or drink policy
  • Providing seating or allowing the employee to sit more frequently if her job requires her to stand
  • Limits on lifting over seventeen pounds

The new law also requires employers to provide other reasonable accommodations and specifies what proof of the need for an accommodation the employer can require, and prohibits retaliation.

Paid Sick Leave

Effective January 1, 2018, employers in Washington State will need to have written policies that provide for paid leave for nonexempt employees that can be used for:

  • Their own or for a family member’s illness, injury or health condition
  • Closure of the employee’s place of business or child’s school or place of care for any health-related reason
  • For absences that qualify under the state domestic violence leave act

Other key provisions of the law:

  • The definition of “family member” is very broad
  • All nonexempt employees are eligible – even if they are part time or temporary employees
  • Leave accrues at the rate of 1 hour for every 40 hours worked
  • Leave can be used  beginning on the 90th day of employment
  • Verification can be required for leave that is more than three consecutive work days
  • Up to forty hours of accrued leave can be carried over to the next year
  • If an employee is re-employed within 12 months of separation, their leave accrual is restored
  • Employers can adopt more generous leave policies
  • A PTO policy can be adapted to meets the requirements for this leave
  • Employers in cities with paid leave laws will need to adopt policies that meet the requirements for both the state and local laws (whichever is more favorable to employees)
  • Employers cannot use paid sick leave time as an absence that may lead to or result in discipline against the employee
  • Discrimination and retaliation for exercising rights under the law are prohibited

Paid Family and Medical Leave

As of January 1, 2019, employers in Washington State must start collecting and paying premiums to the state as part of a new paid Family and Medical Leave (“FML”) program.   Employees are eligible to begin using paid FML on January 1, 2020. Some of the key provisions of this law are summarized below:

  • Paid FML is in addition to the paid sick leave that goes into effect on January 1, 2018
  • The criteria for which leave can be used are similar to the federal FMLA
  • Paid FML is usually 12 weeks, but can be extended to as much as 16 weeks for a serious health condition that occurs with a pregnancy resulting in incapacity
  • FML pay varies depending on the employee’s average weekly wage; the maximum weekly benefit is $1,000 for 2020
  • Paid FML applies to employees who work 20 or more hours per week
  • An employer may allow an employee who has accrued paid time off (PTO) to choose whether to use their PTO or not use PTO and receive paid FML benefits
  • The state decides if an employee is eligible for paid FML
  • Unless otherwise expressly permitted by the employer, paid FML must be taken concurrently with any leave taken under the federal FMLA
  • The definition of “family member” for paid FML is broader than the FMLA definition
  • This law preempts local governments from altering the state paid FML benefits or requiring employer supplements
  • Employers are allowed to provide greater benefits than paid FML provides
  • Employees who receive workers’ compensation or unemployment insurance are ineligible for paid FML
  • Employers with fewer than 50 employees are not required to pay the employer portion of the FML premiums
  • The leave entitlement for the birth or placement of a child expires at the end of the twelve-month period beginning on the date of such birth or placement
  • The leave entitlement for an employee’s own or a family member’s serious health condition, or leave for qualifying exigency, expires at the end of the twelve-month period beginning on the date the employee filed an application for the benefits
  • Employees are not entitled to leave “for any absence occasioned by the willful intention of the employee to bring about injury to or the sickness of the employee or another, or resulting from any injury or sickness sustained in the perpetration by the employee of an illegal act …[or] For an employee who is on suspension from his or her employment”
  • There is a seven calendar day waiting period except for leave for the birth or placement of a child
  • The employment protection parts of the statute do not apply to employers with less than 50 employees, employees who worked for the employer less than 12 months, and employees who work less than 1250 hours (in other words, employers don’t need to return employees to their former positions if they would not have been eligible for FMLA leave)
  • Employers are not required to reopen a CBA during its term in order to “apply rights or privileges” available under the Act until the current CBA is “reopened or renegotiated by the parties or expires”
  • Employers can adopt a voluntary plan for medical or family leave (i.e., to self-insure) if their plan is approved by the state

We recommend updating your policies now for pregnancy accommodation and paid sick leave.  We anticipate additional guidance on paid FML will be provided by the state before premium collection begins in 2019.  Any member of the Ogden Murphy Wallace’s Employment and Labor Law Group can guide you through the process of updating your policies, or you can contact Group Chair Karen Sutherland for a referral, ksutherland@omwlaw.com or 206-447-2241.

Texas Injunction on Modifications to “Exempt” Status May Affect WA Healthcare Employers

The Department of Labor’s (the “DOL”) new rule related to the salary-level test for exempt employees was challenged yesterday in a broad ruling from the Eastern District of Texas.  Yesterday, a federal judge in the Eastern District of Texas issued a nationwide preliminary injunction against the DOL rule which increased the salary-level test for exempt employees from $23,660 per year to $47,476 per year.  The injunction blocks the new rule from going into effect on December 1, 2016.

On its face, the ruling says it is nationwide.  However, the federal courts in Washington may decide not to follow the Texas court’s ruling because Washington was not a party to the decision.  It is unlikely that the courts in Washington will rule on this issue prior to the December 1, 2016 effective date of the new rule, which leaves Washington healthcare employers in a state of uncertainty unless the DOL issues a statement indicating whether or not it intends to enforce the rule in states that were not a party to the Texas lawsuit.

What are the possible consequences if a Washington employer does not raise exempt employee’s salaries on December 1?

If the Washington courts decide that the Texas decision does not apply to them, then any Washington employers who failed to raise the salary of their exempt employees to $47,476 per year on December 1, 2016 would be liable for wrongful withholding of wages and would owe back wages to the affected employees, plus interest at 12% and any attorney’s fees they may have incurred to collect the money.  The employees or the DOL could also make a claim for double damages, but employers may be able to avoid double damages by arguing that they, in good-faith, relied upon the Texas injunction.

What are the possible consequences if a Washington employer does raise exempt employee’s salaries on December 1?

The Texas injunction does not prohibit employers from raising salaries on December 1.  The only consequence is that if the new salary rule is thrown out, the employer will have paid the employee more than the law required.

What do you recommend?

At this point, we recommend waiting until we are closer to December 1 to finalize any decisions about employee raises to meet the salary test to see if the DOL will issue any guidance as to whether it intends to enforce the rule in states that were not a party to the Texas lawsuit.  If no guidance is issued by the DOL, we suggest weighing the cost of the salary increases and effect on morale of not giving an employee an increase against the risk that employers will be ordered to pay more than back wages to employees if the DOL rule is found to be applicable to Washington employers.  If you have employees in other states, we recommend that you contact us or your employment attorney regarding whether that state was names a party in the Texas lawsuit.

 For further information or if you have any questions regarding the new developments in implementation of the DOL over time rules  please contact Karen Sutherland, Patrick Pearce or Erin McCool.

 

Proposed “Exempt” Status Risks for Health Care Employers

Health care providers need to be aware of significant anticipated changes to federal laws governing which employees may be treated as exempt from eligibility for overtime. Failing to account for the changes if and when they go into effect will expose health care employers to significant potential liability. Successful claims for improperly paid or unpaid wages carry the potential for both a doubled damage and an award of attorneys fees to a successful claimant. When multiple employees are affected, an employer may be faced with defending a class action.

The proposed regulatory changes are primarily focused on the threshold level of salary an employee must receive in order to potentially be ineligible for overtime. If the proposed changes are implemented, minimum salary for exempt employees would more than double. The changes may become effective as early as 2016.

The changes were posted by the United States Department of Labor’s Wage and Hour Division on July 6, 2015 and set forth proposed modifications to 29 CFR Part 541, the regulations addressing which employees will qualify as “exempt” for purposes of eligibility for overtime pay. The changes will apply to any employer covered by the Fair Labor Standards Act (FLSA), which includes hospitals, businesses providing medical or nursing care for residents, and public agencies. While doctors are not subject to the new regulations, the changes would apply to other health care providers and employees.

The current minimum salary threshold for most exempt employees was set in 2004 and requires at least $23,660 annually with at least $455 received per week. If effective in 2016, the regulatory changes would increase the minimum threshold to $50,440 annually with at least $970 received per week. The modifications anticipate setting the minimum salary level at the 40th percentile of weekly earnings for all full-time salaried workers. The proposed changes also anticipate incorporating a system for continuing adjustments to the necessary minimum salary in order to keep pace with living costs, either through linking increases to earnings percentile of all full-time salaried workers or through linking to changes in inflation as measured through the Consumer Price Index for all Urban Consumers (CPI-U).

The proposed revisions additionally anticipate modifying the exemption for highly paid employees. Currently, employees making at least $100,000 annually and receiving at least $455 weekly will be considered exempt if the employee customarily and regularly performs at least one of the primary duties or responsibilities of an executive, administrative, or professional employee as identified in the FLSA standard tests for exemption. Under the changes, the minimum salary for highly paid employees would be increased to $122,148 annually which corresponds to the 90th percentile of weekly earnings of all full-time salaried employees.

Employers have a window to voice positions on the proposed regulatory changes. Written comments will be accepted until September 4, 2015 and will need to reference Regulatory Information Number (RIN) 1235-AA11. Comments may be submitted online and additional information for how to submit a comment can be found here.

Health care employers should carefully evaluate the wages paid to all employees currently classed as exempt to identify which employees may be affected. Employers may wish to consult with counsel to most effectively plan for any necessary changes and identify potential pitfalls. Employers may also wish to submit comment prior to the September 4th deadline expressing positions and opinion on the proposed changes.

For questions regarding the anticipated changes, their impact, and potential options, please contact the author, Patrick Pearce.