Paid Family Leave: New Labor Standard for Washington?
Wendy Gillihan, MAcc, PHR, is a labor standards expert and president of Gryffin Consulting, a firm specializing in helping businesses of all sizes navigate labor laws.
Business owners in Washington are likely unaware that paid family leave insurance, to be administered through the Washington Department of Labor, was voted into law in 2007. The intention was that parental leave, referred to as Family Leave Insurance, would operate similarly to Worker’s Compensation Insurance. However, this law was never actually implemented due to the economic downturn the following year, in 2008.
However, in recent months, a renewed effort has emerged to create (and actually implement) a paid family leave program in Washington, and it’s gained momentum.
The original 2007 law offered some arguments for the importance of protections around paid parental leave and their social benefits. Chief among them were doing more to foster parent and child bonding, as well as increasing workforce stability and economic security.
The legislature was particularly concerned that many employees aren’t covered by family leave laws, and that those who do have access to that coverage “may not be in a financial position to take family leave that is unpaid,” especially if their “employer-paid benefits meet only a relatively small part of this need.”
This concern that not enough people had enough access to enough family leave has been echoed in much recent research. In a 2013 report from the Institute for Women’s Policy Research (IWPR), for example, researchers noted, “The benefits of paid family leave to individuals, to businesses, and to society are well-documented.” Researchers pointed out that the increasing use of leave by pregnant women mirrors the increased likelihood of those women returning to work after childbirth.
Specifically, paid family leave could:
- keep women in the workforce
- decrease their need for public assistance
- reduce employer costs
- contribute to U.S. economic growth
In fact, access to paid family leave “increased work hours by mothers in the two years after birth.”
Furthermore, the use of paid family leave is linked to a number of health benefits, including:
- lower rates of infant and child mortality
- increased incidence and length of breastfeeding
- improved cognitive development in children
The report, Paid Parental Leave in the United States: What the Data Tell Us about Access, Usage, and Economic and Health Benefits, suggested that “future legislation should address the current gender inequity in availability of paid family leave in order to ensure that men and women have equal access to such benefits moving forward, keeping in mind that women giving birth also need medical leave.”
Original paid family leave law, 2007
Washington’s 2007 law encouraged, but did not establish, a program or programs that would:
- Allow parents to bond with a newborn or newly placed child;
- Provide limited and additional income support for a reasonable period while an individual is away from work on family leave;
- Reduce the impact on state income support programs by increasing an individual’s ability to provide caregiving services for a child while maintaining an employment relationship;
- Establish a wage replacement benefit to be coordinated with current existing state and federal family leave laws.
Based on the foundation of this original legislation, as well as the research published during the intervening years, Washington state is currently considering changes to existing parental leave laws.
Current pregnancy and paid family leave in Washington
Before delving deeper into the future of parental leave laws in Washington, and how these laws might impact employers, it’s important to have an understanding of what the current laws are, most of which are relatively unknown to many business owners.
The most common questions employers and employees alike have are:
Q: What are an employee’s rights to time off during pregnancy?
A: If an employee works for an employer with at least eight employees, she may qualify for leave when a pregnancy-related condition disables her from working.
Q: Is there paid parental leave in Washington?
A: No. Washington does not currently have a program providing compensation during maternity or paternity leave. The state legislature has not implemented the 2007 Family Leave Insurance program. Employers are not currently required to provide paid maternity or paternity leave.
Q: Will an employee qualify for unemployment benefits during maternity leave?
A: No. An employee must be able to work, available for work, and actively seeking work to qualify for unemployment benefits.
Q: Can an employee take unpaid time off to care for a new baby?
A: An employee may be entitled to take time off to care for a new baby depending on the following certain factors:
Maternity leave for mothers giving birth
Leave for mothers not giving birth and paternity leave
The future of paid parental and family leave in Washington
Legislators, advocates, and communities are looking to address the future of paid parental and family leave in Washington state. There are a number of areas that require thoughtful policy development for a new paid parental or family leave law:
Size of employer:
What qualifies as a small business? Do we use the Family Medical Leave Act (FMLA) criteria based on 50 or more employees within 75 miles of your worksite? This definition excludes a large number of workers, and may exclude small employers that would benefit from offering support to new parents. If we drop the number down, what size of employer makes sense? Should all employers have the option to participate, regardless of size?
Waiting period for eligibility: The FMLA requires an employee to have worked for their employer for 12 months and for 1,250 hours in the 12 months prior to leave. This excludes most part-time employees entirely. Should paid parental leave extend to workers with fewer hours in the 12 months prior to the leave, possibly with reduced benefits?
Some states are allowing employees to have paid parental leave after their employment relationship terminates. Should the benefit operate similar to state unemployment insurance, in that eligibility is tied to a base number of hours worked during a period, rather than for a specific employer?
Notice of leave: Some paid parental leave laws in the US require 30-day notice prior to the leave with exceptions in unusual and urgent situations where prior notice is not possible. Is a 30-day notice period sufficient to prepare for coverage during the leave?
Length of leave/allows for intermittent leave: Current US laws regarding unpaid or paid parental leave vary, but most provide between 5-12 weeks. The FMLA and the Washington Family Leave Act allow for intermittent leave with different options related to the type of qualifying events (birth of a child has limited intermittent leave, illness or care of a family member has significant intermittent leave allowed) expectation.
New Jersey’s paid family leave allows for intermittent leave if both the employee and employer agree to a leave schedule for paid parental leave. However, the employer’s agreement is not required for other types of leave, such as illness or care of a parent. If intermittent leave is taken instead of a set block of time, should the amount of leave remain the same?
Existing paid leave substitution: Some current parental leave laws allow employers to substitute their own parental leave for the government funded insurance. Should employers be allowed to opt out if they meet a clearly defined standard related to paid leave?
Type of event to qualify for leave: Should the leave include paid parental leave only? Or should it include all of the qualifying events included in FMLA?
Currently, the qualifying events in the FMLA for paid parental leave include:
- the birth of a child and to care for the newborn child within one year of birth;
- the placement with the employee of a child for adoption or foster care and to care for the newly placed child within one year of placement
However, the FMLA also includes a wide variety of other qualifying events, such as:
- to care for the employee’s spouse, child, or parent who has a serious health condition;
- a serious health condition that makes the employee unable to perform the essential functions of his or her job
A related concern that any future legislation might address is the difference between parental and family leave. Combining all of the types of leave into one category is generally referred to as family leave. Parental leave, however, is related to a discrete, easy to document event in an employee’s life, the addition of child to a household. The other types of qualifying events may relate to chronic medical conditions of varying severity, and these may be difficult to document and accommodate.
These two types place significantly different administrative burdens on both the employer and the employee. Should a paid policy mirror the Family Medical Leave Act qualifying events? Or should paid parental leave and family leave generally covered under sick leave laws be considered separately?
What will paid family leave mean for small business?
Employers with employees in the state of Washington should consider participating in the development of the paid parental or paid family leave law. All of the aspects of paid parental leave listed above are currently open for discussion.
It’s important for small employers to make their viewpoint heard by lawmakers and policy developers in our region to ensure that a strong consensus is achieved between employers and employees about the future of parental and family leave.