Washington State Passes (Yet Another) Paid Family and Medical Leave Amendment, and It’s a Big One

Washington employers take note: Significant changes to the Washington Paid Family and Medical Leave (WA PFML) law are on the horizon that will impact every employer in the Evergreen State. The bill amending the law, HB 1213, is complex with several components that are a mixed bag for employers. It will lessen the eligibility requirements for job protection, provide a mechanism for employers to count leave taken under the federal Family and Medical Leave Act (FMLA) against the total amount of WA PFML time qualifying for job protection, reduce the minimum claim duration, expand employee rights to health benefits continuation, impose additional notice requirements for employers, and provide additional grants for small employers to offset the costs of employees’ use of WA PFML. 

The amendment is slated to take effect January 1, 2026, but it will become null and void if it is not funded in the omnibus appropriations act by June 30, 2025.  

Expansion of Job Protection

Currently, the WA PFML does not provide job protection (also referred to in the statute as “employment protection” or “employment restoration”) to all employees who qualify for WA PFML. To qualify for leave under the state program,¹ employees must have worked in Washington for a minimum of 820 hours in a qualifying period. However, an employee who takes WA PFML under the state program qualifies for job protection only if the employee has performed at least 1,250 hours of work for their employer within the 12 months prior to the start of leave, has been employed by their employer for a minimum of 12 months, and works for an employer with a minimum of 50 employees. 

The amendment eliminates the hours of work requirement, reduces the length of service requirement to 180 calendar days as of the start of leave, and will expand employment restoration requirements to smaller employers² in phases:

• Calendar Year 2026: 25 or more employees
• Calendar Year 2027: 15 or more employees
• From January 1, 2028 forward: 8 or more employees

The expansion of job protection applies to employers participating in the state program, as well as employers with voluntary plans.³

Attempts to Address Stacking of Job-Protected Leave

For larger employers, the amendment aims to prevent the stacking of job-protected leave under federal law with WA PFML. The WA PFML provides that, “unless otherwise expressly permitted by the employer,” WA PFML “must be taken concurrently with any leave taken under the federal family and medical leave act of 1993.” Notwithstanding this provision, under the WA PFML, using FMLA does not reduce an employee’s WA PFML paid leave benefit. Further, the WA PFML has not afforded employers a mechanism to require WA PFML to be taken concurrently with FMLA leave. Under the WA PFML, it is the employee’s choice whether to file an application for WA PFML benefits and, if their application is approved, how much of their available WA PFML entitlement to claim each week. The amendment seeks to address this issue by giving employers a mechanism to count FMLA leave towards the total amount of leave entitled to job protection under the WA PFML if the employee was eligible for WA PFML but did not apply for and receive it. 

To avail itself of this ability to count qualifying FMLA leave toward WA PFML job protection, an employer must provide the employee written notice of the following:

• The employer is designating and counting the employee’s unpaid leave against their FMLA entitlement, including the amount of the FMLA entitlement both used and remaining;
• The start and end dates of the 12-month period the employer uses for FMLA purposes;
• The fact that the employer is counting the employee’s unpaid leave towards the maximum leave qualifying for employment restoration under the WA PFML, including the start and end dates of the unpaid leave, and the total amount of the unpaid leave counted towards the maximum as estimated based on information obtained from the employee and the Employment Security Department (“Department”); and
• Counting use of unpaid leave against the maximum leave qualifying for employment restoration will not affect the employee’s eligibility for WA PFML.

This notice must be provided within five business days of the employee’s initial request for or use of FMLA leave, whichever comes first, and then monthly thereafter for the remainder of the employer’s FMLA 12-month period. 

The amendment does not affect the rights and protections employees may have under other state or federal laws, including the rights to unpaid leave related to pregnancy or childbirth pursuant to the Washington Law Against Discrimination, unpaid leave provided as an accommodation under the Washington Healthy Starts Act, or paid sick leave under the Washington Minimum Wage Act.

The amendment also does not affect the ability to deny employment restoration under a provision that is very similar to the “key employee” provision of the FMLA. 

Employees Must Exercise Their Right to Reinstatement

Employees will now need to affirmatively exercise their right to job reinstatement or risk forfeiting the right. 

The amendment provides that, absent written agreement between the employer and either the employee or the employee’s bargaining unit, an employee forfeits their right to employment restoration if they fail to exercise the right upon the earlier of (a) the first scheduled workday following the end of their WA PFML leave; (b) the first scheduled workday following unpaid FMLA leave during which the employee was eligible for WA PFML but did not apply for and receive WA PFML; or (c) a combination of the two that totals either 16 weeks of leave or 18 weeks in the event of pregnancy incapacity taken during a period of 52 consecutive calendar weeks.⁴

Employers Must Provide Notice Regarding Reinstatement and Return to Work

The amendment will also require employers to provide notice about their right to reinstatement. For an employee taking any continuous period of leave exceeding two typical workweeks or any combined intermittent periods of leave exceeding 14 typical workdays, the employer must provide written notice to the employee at least five business days in advance, in a language understood by the employee and transmitted by a method reasonably certain to be received promptly by the employee, regarding the estimated expiration of the right of employment restoration and the date of the employee’s first scheduled workday after their leave. For combined intermittent periods of leave, the employer may estimate the expiration of the right of employment restoration based on information provided to the employer by the Department and the employee.

Reduced Claim Duration

Currently, WA PFML claims are subject to a minimum claim duration of eight consecutive hours of leave, meaning the employee must claim at least eight consecutive hours at some point during the week beginning on Sunday at 12:00 a.m. and ending at 11:59 p.m. the following Saturday. The amendment lowers the minimum claim duration to four hours.  

Expanded Benefits Continuation 

Currently, WA PFML requires employers to provide health insurance continuation only if there is at least one day of WA PFML running concurrently with FMLA. The amendment eliminates this requirement and simply requires benefits continuation during any period of WA PFML unless a) the employee is not employed by the employer at the time they filed for WA PFML; b) the employee is not entitled to employment protection; or c) the employee did not timely exercise their right to employment protection. 

Notice and Poster Requirements

Currently, employers are required to provide an employee a written notice of their WA PFML rights using the Department’s template notice if the employer becomes aware that the employee is taking WA PFML for more than seven consecutive workdays. The amendment requires the Department to develop a notice that, at a minimum, explains eligibility requirements, possible weekly benefits, application processes, employment protection rights, and nondiscrimination rights and provides avenues for obtaining additional information. 

The WA PFML also requires employers to post a notice prepared or approved by the Department that summarizes WA PFML and provides information regarding the filing of a complaint. The amendment requires that the poster also address eligibility requirements, possible weekly benefits, application processes, employment protection rights, nondiscrimination rights, and other protections.

Changes for Small Employers 

Currently, small employers (those with fewer than 50 employees working in Washington) are not required to pay the employer portion of WA PFML premiums and are able to apply for grants to offset the impact of employees taking WA PFML leave. The amendment revises the terms of the grants available to such employers. Under the amendment, small employers may apply to the Department for a grant of $3,000 if they hire a temporary worker to replace an employee on WA PFML for seven days or more or incur significant additional wage-related costs as a result of the leave. Employers may receive no more than one grant for each employee on leave and a total of 10 grants per calendar year. As tradeoff for receiving a grant, however, small employers that receive a grant will be assessed WA PFML premiums for three years from the date of the grant forward. 

Next Steps for Employers

If the amendment is funded, employers should review their leave of absence policies, forms, and administrative processes to account for the expansion of job protection, coordination of FMLA leave and WA PFMLA law (to the extent applicable), continuation of benefits, and employer notice and posting obligations in advance of the January 1, 2026, effective date.