To level-set a bit, current relatives who qualify as a family member are an employee’s spouse (defined to include a registered domestic partner), child (bio, adopted, foster, step), parents/legal guardians, spouse’s parents/legal guardians, siblings, grandchildren, grandparents, spouse’s grandparents, and/or daughter/son-in-law. Under the amended definition, a “family member” includes any individual who regularly resides in the employee’s home OR where the relationship creates an expectation that the employee care for the person, and that individual depends on the employee for care. It will exclude anybody who resides in the same home with no expectation that the employee care for that individual. The amended definition will become effective on July 25, 2021, so get started amending your impacted policies and voluntary plans right away.

Wage replacement benefits under PFML program available to previously ineligible workers

Moving on to an already effective new law: although many Washington workers stand to benefit from this expansion, from an administrative perspective it is coming in high on the “twitchy” scale. Prior to House Bill 1073, employees needed to meet an eligibility criterion of 820 hours worked in covered employment during the first 4 of the last 5 completed calendar quarters, or (if eligibility was not established) the last 4 completed calendar quarters immediately preceding the application for leave in order to be eligible to receive income replacement under the state-administered WA PFML program.

However, the legislature found that many workers had paid into the family and medical leave insurance program yet were now ineligible for benefits due to separations or reductions in hours worked caused by the COVID-19 pandemic. As a result, those workers were unable to access much-needed benefits through no fault of their own. The expansion effectuated by the enactment of House Bill 1073 allows such employees to potentially qualify for a “pandemic leave assistance employee grant.” These grants, if awarded, entitle workers to benefits equivalent to what the worker would otherwise be eligible to receive under the paid family and medical leave insurance program. Here are the details of the new law:

  • Effective Dates: April 21, 2021 through June 30, 2023.
  • Employee Eligibility: Currently ineligible for traditional PFML, but have worked in covered employment either 820 hours through all four quarters of 2019 or 820 hours from the second quarter of 2019 through the first quarter of 2020.
    • Workers who fall short of the traditional hours worked threshold due to misconduct or voluntary separation unrelated to COVID-19 are excluded.
  • Claim Filing: Starting on August 1, 2021, employees may begin filing claims for pandemic leave assistance employee grants.
  • Applicable Absence Period(s): Applies to absences that fall between January 1, 2021 and  March 31, 2022.
  • Employer Note: Small business employers with 150 or fewer employees may be eligible for pandemic leave assistance employer grants to help cover costs related to the employee’s leave.

Just to close this one out with a cliff hanger, there are some open questions that have yet to be definitively answered:

  1. Will the leave that qualifies for pay under this pandemic leave assistance employee grant have job protection?
  2. Will the time taken count against an employee’s future WA PFML entitlement once the employee becomes eligible for “traditional” WA PFML benefits?
  3. Are voluntary plans that adopted the state’s eligibility criteria required to amend their plan language to provide benefits to employees who meet these new eligibility criteria?

The Washington Employment Security Department has provided public notice that it intends to promulgate rules to implement this new law as well as Senate Bill 5097. Fingers crossed that the guidance will be comprehensive and timely, as the agency certainly has its hands full, having just adopted new final rules related to appeals, illegal acts, hours worked, small business grants, employer size, and employment restoration. Guardian will stay on top of the rulemaking, so keep an eye on future blogposts for particulars!

Legislature codifies protections for high-risk workers in health emergency labor Standards Act

Lastly, Senate Bill 5115 was signed by Governor Inslee and became effective on May 11, 2021. Among other things, it prohibits employers from discharging, permanently replacing, or discriminating against an employee who is high risk for severe illness from the disease that is the subject of an existing public health emergency for seeking accommodation that protects them from the risk of exposure, or if no accommodation is reasonable, utilizing all available leave options (including unpaid leave) until the completion of the public health emergency or an accommodation is made available. Like with many new laws across the country, the language is not specific to COVID-19, but generic enough to cover the current pandemic and future disease-induced public health emergencies.

What Guardian is doing

Guardian continuously tracks and analyzes current and pending leave and accommodation legislation to determine potential impacts to our customers. In addition, Guardian monitors guidance from agencies such as the Department of Labor and EEOC and incorporates that guidance into our administration when appropriate. We will be watching Washington closely, as there are numerous open questions that will affect absence management.

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Information provided on this blog is intended for general educational use. It is not intended to provide legal advice. Guardian does not provide legal services. Consult an attorney for legal advice on this or any other topic. GUARDIAN® is a registered service mark of The Guardian Life Insurance Company of America® ©Copyright 2021 The Guardian Life Insurance Company of America, New York, N.Y.

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