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.

 

EEOC Announces New Employer Pay Data Reporting Requirements

On Friday, January 29, 2016, the Equal Employment Opportunity Commission (EEOC) announced the agency’s intent to require a new obligation for employers with at least 100 employees to submit data on wages earned and hours worked to the agency in annual reports[1]. The intent of the new requirement is to make it easier for the EEOC to identify possible pay discrimination issues and assist employers in efforts to provide equal pay for employees.

 

The EEOC’s announcement would mean revisions to the Employer Information Report (EEO-1) already submitted by some private employers annually[2]. The report has historically collected information on employee ethnicity, race, and sex by job category[3]. The reporting obligation has previously depended on number of employees and whether the employer works on federal contracts[4]. Since 1966, private employers with at least 100 employees, and employers performing federal contracts and who have at least 50 employees have been required to submit the EEO-1 report annually. Small private employers with less than 50 employees have not been required to submit information regardless of whether they work on federal contracts.

 

Under the anticipated changes, employers including federal contractors with at least 100 employees will be required to report pay data on earnings and hours worked along with the previously required EEO-1 information on ethnicity, race, and sex. Employers that are federal contractors and have between 50-99 employees, and employers who do not perform federal contracts but have 99 or fewer employees will be free of EEO-1 reporting obligations.

 

If the proposed changes go into effect, employers will need to collect and report on employee earnings as measured by W-2 information for a 12 month period as measured between July 1st and September 30. The employer will be able to select the 12 month period within that window. For example, an employer may choose to determine W-2 earnings as paid to employees in the 12 month period as measured back from the second pay period in July. Along with W-2 earnings, employers will also need to report employee hours worked for all employees falling within the same pay range. The anticipation is that reporting hours worked within the same pay range will allow the EEOC to account for periods of time when employees are not working, such as part time employees or employees who only worked for part of the 12 month period.

 

EEO-1 reporting currently identifies ten job categories ranging from Executive/Senior Level Officials and Managers to Service Workers. There are seven potential race and ethnicity groups. The proposed pay data requirement anticipates twelve pay bands. The proposed pay bands start at a low of $19,239 and under and go to a high of $208,000 and over. As an example, an employer may be required to report that it has eight male Asian employees performing as Sales Workers, compensated in the sixth pay band, and who worked a total of 12,000 hours.

 

 

The full notice of the proposed revision to the EEO-1 is available online[5], and comments may be submitted until the comment period ends on April 1, 2016. The new requirements are anticipated going into effect in 2017, with pay data to be included in the EEO-1 reporting by the September 30, 2017 filing deadline. If the changes are put into effect this year as expected, the EEOC will post a notice on its official web site and will provide an additional written notice to existing EEO-1 recipients of the changes and need to submit pay data information with the 2017 EEO-1 information collection cycle. At present, the EEOC anticipates that because of the changes, EEO-1 information will not need to be reported until the 2017 cycle.

 

Going forward, there are several considerations for employers subject to reporting.

 

  1. Establish a regular measurement date for W-2 wages paid: Consistency in determining the 12 month period measurement date will likely be the most effective and convenient way for employers to gather the pay data needed for reporting. The window for assessment is relatively limited and must be measured using a date falling between July 1 and September 30 of the particular reporting year. It is likely that administratively the task of compiling the data across all employee pay bands will be most efficiently done using one consistent trigger date.

 

  1. Anticipate the need to organize and properly report the data: The EEOC anticipates that most if not all employers subject to the reporting requirement will already have the anticipated pay data information available, and that employers may face a short term and possible costs to integrate all the data for reporting. In anticipation of the first reporting period in 2017, it will likely be best to develop and put systems in place early to internally track and compile the necessary data.

 

  1. Use the requirement as a risk management tool: The data sought by the EEOC can also be utilized internally by employers to identify whether disparities exist, and if so, the reasons for any disparities. If disparities or unusual results are found, employers may wish to consult with counsel familiar with employment issues to determine whether legitimate business reasons exist to justify the results or to determine best options to address and fix a potential problem.

 

_____________________________________________________________________________________

 

Patrick Pearce is a member of Ogden Murphy Wallace, P.L.L.C., and practices in the firm’s Employment and Labor Law group. He can be reached at pspearce@omwlaw.com. The above article is a broad outline of a complex topic and should not be relied upon for purposes of legal advice.

 

 

[1] http://www.eeoc.gov/eeoc/newsroom/release/1-29-16.cfm

[2] A sample copy of the EEO-1 may be found at http://www.eeoc.gov/employers/eeo1survey/upload/eeo1-2.pdf.

[3] The reporting obligation resulted from regulations issued pursuant to Section 709(c) of Title VII of the Civil Rights Act of 1964, which required employers to make and keep records relevant to the determination of possible unlawful employment practices, preserve such records, and produce reports to the agency.

[4] http://www.eeoc.gov/employers/eeo1survey/2016_eeo-1_proposed_changes_facts.cfm

[5] https://www.federalregister.gov/articles/2016/02/01/2016-01544/agency-information-collection-activities-revision-of-the-employer-information-report-eeo-1-and