Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
Spring has sprung in the State of Washington, and there are several new paid leave developments taking root. First, the Washington Paid Family and Medical Leave Act, which generally provides leave with partial wage replacement of up to 90% to eligible employees, has been amended to (a) provide greater access to information regarding employees’ leave claims, (b) increase employer reporting requirements, (c) clarify provisions regarding leave to bond with a new child following placement, self-employment, and filing of claims when an employee is deceased, and (d) create a pilot program for Transportation Network Company drivers to access benefits as self-employed individuals. Second, an amendment to the Washington Minimum Wage Act specific to non-residential construction workers makes Washington the first state in the nation to require payment of standalone unused paid sick and safe time upon separation of employment. Finally, furthering the blossoming trend of focusing on gig workers, Seattle became the first city to pass permanent paid sick and safe time requirements for app-based, gig economy workers.
Paid Family and Medical Leave
The Washington governor has signed Senate Bill 5586, which provides that effective January 1, 2024, certain interested parties may request access to Washington Paid Family and Medical Leave Act claim records related to employee paid family or medical leave claims. An "interested party" means a current employer, a current employer's third-party administrator, or an employee.
The types of records and information that can be accessed include:
- Type of leave being taken;
- Requested duration of leave including the approved dates of leave;
- Remaining hours of leave available in the employee's entitlement;
- Weekly benefit amount; and
- Actual benefits paid and hours claimed.
This development may assist employers in administering their own leave or supplemental benefit programs concurrently with the state benefit. We expect that further guidance and rulemaking will follow before the law’s January 1, 2024 effective date.
Employer Reporting Requirements
On May 17, 2023, the Employment Security Department filed a CR-103 rule-making order and adopted rules regarding employer reporting requirements, placement, elective coverage requirements, and designated representatives. The adopted rules will become effective July 1, 2023.
The adopted rules add two requirements for employer quarterly reports. The first is a report of “no payroll” for a maximum of eight consecutive quarters when employers have no paid wages to report. The second is a requirement to add employees’ dates of birth to quarterly wage reports. The amendments will affect both the Paid Family and Medical Leave (PFML) program and the Long-Term Services and Supports Trust (WA Cares Fund) since employers submit one report to the Department for both programs. According to the Department, adding employees’ dates of birth to employer reports will assist the Department with ensuring employee work history and that premium assessments are complete and accurately prorated for the WA Cares Fund. The amendments regarding “no payroll” reports will ensure the Department does not flag a missing report for audit and that the Department has accurate data for annual PFML employer sizing determinations.
Specific to PFML, the adopted amendments also correct an RCW pointer reference, clarify the definition of “placement” for the purpose of family leave to bond with the employee’s child, clarify that hours worked in self-employment prior to the effective date of the election of coverage for self-employed individuals do not count toward establishing benefit eligibility, and clarify that weekly claims may be filed by an estate executor or administrator if the employee passes away after having been approved for benefits. Amended rules include:
- WAC 192-500-195 Placement.
- WAC 192-510-010 Election, withdrawal, ad cancelation of coverage.
- WAC 192-540-030 What are employers required to report to the department?
- WAC 192-800-150 Can an employee designate a representative to act on their behalf?
Definition of “Placement”
As referenced above, Washington amended its administrative code PFML provisions to further clarify the definition of “placement” of a child with an employee for adoption, foster care, guardianship, or non-parental custody. Specifically, the regulation now excludes coverage for:
- Any arrangement where the child is already in the care and custody of a parent and remains in that same parent's care and custody; and
- Any arrangement where a child is returned to the care and custody of a parent or is placed with a parent whose entitlement to family leave to bond with that child has already expired.
On May 15, 2023, the governor signed House Bill 1570. Among other things, the bill creates a pilot program for Transportation Network Company (TNC) drivers to access Washington Paid Family and Medical Leave Act (PFMLA) benefits as self-employed individuals. It does not make any structural changes to the PFMLA. The pilot program will run from January 1, 2024, through December 31, 2028. Under the program:
- Drivers may continue to elect coverage as self-employed individuals;
- TNCs will be required to report to each driver the total amount of compensation that the driver earned through the TNC in that quarter;
- The Employment Security Department must share data with each TNC on a quarterly basis regarding drivers who reported and paid premiums for PFML, and on drivers who withdrew and canceled coverage; and
- TNCs will be required to pay each driver who elected coverage an amount equal to the premium paid multiplied by the driver’s quarterly compensation.
Construction Industry Amendments to Paid Sick and Safe Time
On May 4, the governor signed Senate Bill 5111, aimed at helping short-term construction workers avail themselves of paid sick and safe time (PSST). The bill becomes effective January 1, 2024 and broadly applies to workers who (a) are covered under the North American Industry Classification System (NAICS) industry code 23, excluding workers covered under NAICS code 236100 (residential building construction) and (b) have not reached the 90th calendar day of employment.
Currently, under the statewide PSST law, employees are not entitled to begin using their accrued PSST until their 90th calendar day after commencement of employment. As a result, short-term or temporary construction workers’ assignments might end before they have the opportunity to use PSST. Through SB 5111, eligible construction workers who have not met the 90th day eligibility as of their separation date must be paid the balance of their accrued and unused PSST at the end of the established pay period, making Washington the first state to require payment of standalone unused PSST upon separation of employment. Under the statewide PSST law, payout is not required upon termination of employment of any length unless the employer’s policy or collective bargaining agreement provides otherwise. However, employees rehired within 12 months of termination are entitled to certain reinstatement rights under the statewide law. The reinstatement requirement will not apply to PSST paid out to construction workers upon separation of employment in accordance with SB 5111.
Gig Worker Paid Sick and Safe Time
On March 29, 2023, Seattle became the first city to pass permanent paid sick and safe time (PSST) for app-based, gig economy workers. The City Council passed Council Bill 120514, the App-Based Worker PSST Ordinance (Ordinance), codified at SMC 8.39, by a unanimous 9-0 vote.
The Ordinance builds on previous efforts by city officials to extend PSST for more workers in Seattle at the beginning of the COVID-19 pandemic. In the spring of 2020, as part of an emergency pandemic order, the City extended PSST to app-based workers, specifically food delivery network company workers and transportation network company (TNC) drivers using ride-sharing apps. However, this was a temporary measure and was set to expire six months after the declared state of emergency ended. The Ordinance became effective for food delivery network workers on May 1, 2023, the day after the expiration of the prior emergency ordinance. The new Ordinance not only ensures continuation of those benefits, but also expands coverage to more app-based workers, not just food delivery drivers. PSST benefits will be available to the other app-based workers covered in the legislation beginning January 13, 2024. This coincides with the effective date of the App-Based Worker Minimum Payment Ordinance, SMC 8.37, which provides several other rights and protections to covered gig workers, including the right to minimum pay, pay transparency, and scheduling flexibility.
The Ordinance applies to app-based workers providing services in whole or part in Seattle for certain “on-demand network companies” with 250 or more app-based workers worldwide. Under the new law, app-based workers will accrue one day of PSST for every 30 days in which the worker performs any services on the app within Seattle. Payment for use of PSST is based on the app-based worker’s “average daily compensation,” a daily average of compensation for each calendar day worked in whole or part in Seattle in the preceding 12 months.1
The Seattle Office of Labor Standards (OLS) is responsible for implementing and enforcing these requirements and aggrieved parties have a private individual or class right of action. OLS is expected to issue additional explanatory guidance on this ordinance as well as begin formal rulemaking to further clarify its provisions.
1 This differs from the average daily compensation calculation requirements under the prior COVID-19 temporary order.