Workers at businesses with fewer than 50 employees or who don’t meet a minimum-hours-worked threshold can lose their jobs if they take leave under Washington’s new Paid Family and Medical Leave insurance program.
That provision of the law is not widely known, according to a small-business advocate and a former web content manager who worked on a site describing the program. The program ombuds said details are still filtering out to the public as its implementation begins.
Beginning Jan. 1 , most Washington workers can take up to 12 weeks of paid leave for serious illness or injury; to care for a family member, including a new child; or for certain circumstances related to military deployment under what is one of the most generous such programs in the country. When employees take an approved leave, they receive payment from the state program for a percentage of their usual earnings, up to $1,000 a week.
The state Employment Security Department (ESD) updated its program website Monday with more details about job protections. The site’s section answering worker questions now includes an explanation that people who work at companies with more than 50 employees in Washington and put in at least 1,250 hours of work in the year prior to taking leave are eligible for job protection.
“We’ve been restructuring the site content to include more information about the application process and that must have been removed but not put back,” said Clare DeLong, communications manager for the program. She also noted information about job protection is included in a detailed guide for people planning to take leave, as well as an infographic. She said other laws provide job protections for people taking leave, depending on individual circumstances.
However, the language describes who is eligible for job protection when taking leave, rather than pointing out who is not. Another potential pitfall: anyone working at least 820 hours in the prior 12 months is eligible for the leave, but a worker must have a minimum of 1,250 hours — regardless of the size of the employer — to be assured of retaining his or her job.
Esdonya Charles, an independent ombuds charged with monitoring the program and handling complaints, said it is too early to tell whether the job-protection issue will be a barrier to usage of the benefit. “That’s on my radar,” she said, adding that her office has received about five calls about it.
Earlier this year, Merrill Humberg worked on a webpage describing the program at the Washington Department of Labor & Industries, which is not charged with implementing paid leave — that’s the responsibility of Employment Security — but was fielding many inquiries about it. (L & I does administer a separate paid sick-leave program designed for shorter stints away from work.)
“As we were writing it and looking into the rules, we found this loophole,” he said, noting that at the time there was little information available about the program for workers.
Humberg said he was troubled that the law’s lack of job protection for employees of small businesses was not more prominently explained, particularly because the premiums to pay for the leave program are being deducted from their paychecks.
The state began collecting premiums this year, totaling 0.4% of gross wages, or about $2.44 a week for someone earning $50,000 a year. Large employers must pay at least one-third of that, with employees covering two-thirds. Small firms are exempt from paying premiums, but still must withhold the employee portion.
“So while small-business employees have to pay for it, if they try and use it, it could cost them their job,” he said. “It would be akin to having great medical insurance but getting fired for using it.”
Patrick Connor, Washington state director of the National Federation of Independent Business (NFIB), said he was glad that the ESD website was promptly updated, and that the department has generally been responsive to feedback on similar questions.
But he said that “a flood” of new and changing regulations taking effect in the Washington workplace next year is confusing both workers and small-business owners.
“It should come as no surprise that small-business owners and workers may not be fully aware of them all, let alone well-versed in the details of these complex programs and requirements,” Connor said. “Despite the department’s outreach efforts, I think the rehire provision of the Paid Family and Medical Leave Act is just one of many surprises workers and small businesses alike will find as the program takes full effect next year.”
Connor said that job protection was an area of concern for small businesses, and that the NFIB sought a full exemption from the state law — mirroring the small-business exemption in the federal Family and Medical Leave Act — to help maintain operations while employees make use of the new benefit.
State Sen. Karen Keiser, the Des Moines Democrat who sponsored the legislation, said the lack of job protection for small-business employees “is one of my biggest disappointments in the final law.” She said it was part of the negotiating process in 2017, when Republicans had more leverage with a majority in the state Senate.
“We were told small businesses valued their employees as a family and that they wouldn’t retaliate for someone needing and using paid family leave,” she said, pledging to monitor implementation of the law and propose changes if necessary. “Now that the Senate has a Democratic majority … I am optimistic we can protect workers from retaliation.”
Connor said small businesses face a particular burden in managing employee leave.
“Small businesses need the flexibility to hire a replacement for workers taking most or all of 12 weeks of paid family or medical leave at once,” he said. “The smaller the firm, the more difficult it may be to leave a position open and unfilled for three months or more. … Holding a position open, or terminating a qualified replacement worker who has only recently been trained for the job, and then getting the person who took extended leave up-to-speed, may be more than the small business can bear.”
He added that the nature of the leave — for serious illness or injury of an employee or their family member, or the arrival of a new child, which can result inasmuch as 18 weeks off in certain cases — means workers may not know when or whether they will ultimately return to work, further complicating the staffing for small businesses.
The ESD’s DeLong noted that people who get sick don’t get to choose the timing, nor may they be able to consider their job security in such circumstances.
“You’re going to be out of work regardless,” she said. “The program at least allows for people to get that paycheck.”