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Check out some recent Registered Statements from forum participants

Ed Curtin October 28, 2020, 12:36 PM

Can you give an indication if a life insurance policy with a Chronic Illness rider 101(g) might be exempt from the tax? Thank you.

Rose Gundersen October 23, 2020, 9:04 AM

The Small Business Grants update language lacks clarity. If I’m reading the draft correctly, I believe this draft may not preclude employers who have not been paying premiums to apply for grants and then retroactively pay the premiums for the subsequent 12 quarters.
It is important to add wordings such as "employers are eligible to APPLY for a small business associate grant ONLY if the employer has opted to pay for the employer share of the premiums."

Name not shown July 21, 2020, 8:02 PM

ESD should re-consider how they calculate and make people eligible for the program. Right now, organizations are required to report the hours of their staff quarterly. As a result, if your qualifying event takes place near the end of the quarter, applicants could miss out on several hundred hours of employment that could make them eligible for the program. This is especially true if someone worked part time for the good part of a year and then full-time for the last few months before their qualifying event. This happened to me and as a result our family will miss out on medical leave entirely, even though my organization paid into it. I recorded just over 400 hours in Q3, Q4 of 2019 and Q1 of 2020 via several part-time jobs. I started a full-time job in late Q1 of 2020, where I worked more than 450 hours before my qualifying event at the beginning of June. However, given that my event was near the end of Q2, ESD did not count these hours when I applied at the beginning of Q2. I then had contact with ESD for several weeks to sort out next steps and by the time I came to a resolution, my eligibility for medical leave had passed. It would be great if you could apply for medical leave retroactively, so that you could take advantage of all the hours worked up until your qualifying event.

Name not shown July 14, 2020, 2:29 PM

Regarding rules about submitting weekly claims for PFML and Shared Work in the same claim week. For employers/employees who are eligible for Shared Work claims, reconsideration should be taken to allow for employees to submit both types of claims in the same week as long as they are not on the same day. If a worker meets the working hours requirement to submit a Shared Work claim and has a balance of PFML then both benefits should be available. Within the context of the Governor's mandated Furloughs of 1 day per week for 4 weeks, this mandated distribution of furlough days does not allow equitable flexibility to the employee who has to choose an all or nothing approach to their leave plan.

Nohea Varner July 6, 2020, 1:08 PM

Hi my Name Nohea Varner an Inhave been trying my hardest to get through to someone to help me with my claim it’s been since April 18 or 20th an I dont understand what is going on with my claim not sure if this is were I can ask for help but I’m trying everything at this point. I really just need someone to let me know what’s going on with it. Please help:pray:

Brian Sims December 2, 2019, 9:45 AM

I am submitting the following comments on behalf of 1,477 elected public school directors who govern 295 school districts, which provide health insurance benefits to 150,000 school employees and their dependents. The comments are regarding proposed WAC 192-700-020.
On page 25 of your “PRELIMINARY Significance Analysis” it states:
“None of the rules analyzed in this Significance Analysis conflict with Federal or State law.”
That statement would suggest that the proposed WAC would comply with the following section of state law:
RCW 50A.15.110 Leave available under other laws—Coordination.
(1) Leave under this title and leave under the federal family and medical leave act of 1993 (Act Feb. 5, 1993, P.L. 103-3, 107 Stat. 6, as it existed on October 19, 2017) is in addition to any leave for sickness or temporary disability because of pregnancy or childbirth.
(2) Unless otherwise expressly permitted by the employer, leave taken under this title must be taken concurrently with any leave taken under the federal family and medical leave act of 1993 (Act Feb. 5, 1993, P.L. 103-3, 107 Stat. 6, as it existed on October 19, 2017).

However, the proposed WAC causes confusion about this requirement for concurrency. It suggests that the federal and state benefit could be taken sequentially. If this is not the intent, the language should be clarified. If this is the intent the Employment Security Department is expanding a benefit and imposing a cost on employers without the authority to do so. The result would render RCW 50A.15.110(2) meaningless. State law cannot force someone to take a federal benefit. But state law can withhold a state benefit, if someone does not apply for and accept a federal benefit. [For example, the eligibility for general assistance through DSHS is contingent on applying for federal SSI benefits.]
We suggest the following clarification/correction to the proposed WAC:
NEW SECTION WAC 192-700-020 When does an employer need to provide a continuation of benefits to an employee who is on paid family or medical leave? (1) An employer is required to maintain any existing health benefits to an employee when the following criteria are met: (a) The employee is taking leave under Title 50A RCW from an employer; ((and)) (b) The employee meets the eligibility requirements for a continuation of health benefits as required by the Family and Medical Leave Act, as it existed on October 19, 2017; and (c) is taking leave under the Family and Medical Leave Act. (2) If the employer and employee share the cost of existing health benefits, the employee remains responsible for the employee's share. (3) If the criteria in subsection (1) of this section are met at any point during an employee's duration of leave under Title 50A RCW, the employer is required to provide any existing health benefits for the entire duration of the employee's paid family or medical leave.

Thank you for considering our request.
Tim Garchow
Executive Director
Washington State School Directors Association

Candice Bock December 2, 2019, 9:09 AM

The Association of Washington Cities opposes the interpretation of RCW 50A.35.020 contained in proposed WAC 192.700.020. The proposed WAC is contrary to the plain reading of the statute which says that employers are only responsible for continuation of benefits “If required by the federal family and medical leave act…”. The proposed rule goes well beyond the statutory requirement and could result in employers having to continue benefits for up to 30 weeks if an employee stacks PFML and FMLA leave. This would create a significant undue burden on employers with medical benefit costs ranging from $1,000 to $2,400 per month.
AWC asks that this proposed WAC be removed or redrafted to align with the current statutory requirement.

Name not shown November 27, 2019, 10:20 AM

Washington State Department of Labor & Industries has information under Worker's Rights and Leave which does not align with the information being shared most recently via the Employer Overview's from ESD. If you refer to the below website, it states in various sections "Beginning Jan. 1, 2020....Paid Family Medical Leave program is available... this is in tandem with, not in addition to, FMLA benefits". With the employee given the option to choose whether to utilize company benefits or the state, this would permit employees to exercise FMLA rights via company benefits, then once exhausted file with the state for WA Paid FML. The information provided through the two departments is contradictory.

Name not shown November 27, 2019, 9:29 AM

Christina Streuli
Washington Employment Security Department
PO Box 9046
Olympia, WA 98507-9046

Re: Comments on draft PFML regulation WAC 192-700-020

Dear Ms. Streuli,

I am writing to comment on proposed WAC 192-700-020, a draft regulation related to the Paid Family and Medical Leave law, Chapter, 50A RCW.

The Washington Association of Sewer and Water Districts (WASWD) represents over 180 water and sewer districts that provide essential sewer and water services to nearly a quarter of the state’s population, in urban and rural areas of the state. Combined, these special purpose districts support over 1300 jobs throughout the state. Our members are proud to offer good living wage jobs with robust benefits to community members.

WASWD members have serious concerns about the proposed draft rule pertaining to health care benefits for employees receiving PFMLA benefits. It is our understanding that the proposed rule will require employers whose employees “meet the eligibility requirements” of the federal FMLA to continue paying health care coverage under the Paid Family Medical Leave Act (PFMLA), even if an employee has otherwise exhausted his/her Family Medical Leave (FML) and even though the PFMLA statutes do not themselves provide for continued coverage.

This proposed rule will have significant fiscal impacts to districts with 50 or more employees. Because of another ESD rule that allows employees to “stack” PFML and FMLA, a “large” employer will be obligated to provide up to 30 weeks of combined PMFL/FML, and to continue health care coverage for the entirety of this leave. Employers have historically absorbed health insurance premiums during a 12-week leave, but under this proposed rule they would have to pay for health insurance for 24-30 months. Given that health care benefits can exceed $1000 a month, the health care benefits represent a potentially significant expense. In addition, districts with employees numbering closer to 50 do not often have the staffing capacity for a person to be absent for such an extended period of time, so in addition to the cost of health care benefits for the person on leave, the district may be faced with hiring temporary workers. The additional cost of backfilling with a temporary employee adds to the cost of an employee on PFML.

We support employee benefits that respect the needs of employees. At the same time, employee costs are a significant driver for utility costs. In our concern for keeping essential public health services affordable, we urge you to weigh the cost to the employer in finalizing the rule.

Thank you for the opportunity to comment.


Judi Gladstone
Executive Director

Amy Mensik November 26, 2019, 5:01 PM

Dear Ms. Streuli:

Thank you for the Employment Security Department's extensive efforts to implement the Washington Paid Family Medical Leave law, RCW Ch. 50A et seq. (PFML). Witherspoon Kelley submits these comments regarding proposed WAC 192-700-020 addressing benefits continuation, which is submitted via email and the Open Town Hall engagement site. Our firm assists employers of all sizes and industries, including businesses and non-profit organizations that provide employment for fifty or more employees. We respectfully urge the Department to withdraw or revise WAC 192-700-020 because it is contrary to explicit statutory language and would otherwise propagate and exact significant and unexpected burdens on the eve of the PFML program's full implementation.

A. Proposed WAC 192-700-020 Is Contrary to Explicit Statutory Language.

1. The PFML Statute Requires Benefits Continuation If "Required by the FMLA"; FMLA Only Requires Benefits Continuation During FMLA Leave.

In July 2017, the Washington State Legislature approved the Washington Paid Family Medical Leave (PFML) law, the result of months of negotiations amongst legislators and stakeholders. As enacted, the PFML directs employers to maintain an employee's existing health benefits while the employee is on PFML leave "[i]f required by the federal family medical leave act [FMLA], as it existed on October 19, 2017." RCW 50A.35.020 (emphasis added) (formerly RCW 50A.04.245).

The FMLA generally defines an "eligible employee" for FMLA purposes as an employee who has been employed (i) for at least 12 months; (ii) for an employer with 50 or more employees within a 75-mile radius; and (iii) worked at least 1,250 hours for that employer in the prior 12 months. 29 U.S.C. § 2611(2). Expectedly, if the employee is currently ineligible for FMLA protections, for example, the employee has not yet met the 12-month service threshold, the FMLA requires nothing in terms of substantive FMLA protections, such as the maintenance of health benefits at that time, even if the employee is otherwise then on leave. See 29 C.F.R. § 825.110(d) ("An employee may be on non-FMLA leave at the time he or she meets the 12-month eligibility requirement, and in that event, any portion of the leave taken for an FMLA-qualifying reason after the employee meets the eligibility requirement would be FMLA leave." (emphasis added)); 73 Fed. Reg. 67934-01 at 15 (Nov. 17, 2008) (explaining "FMLA protections do not apply to such leave" taken prior to FMLA eligibility).

Moreover, while meeting the above FMLA general "eligibility" criteria is necessary for FMLA protections, including health benefit continuation, it is not sufficient. Rather, the FMLA only requires continuation of an employee's health care benefits "[d]uring any FMLA leave." 29 C.F.R § 825.209(a) (emphasis added); 29 U.S.C. § 2614(c). That is, when the employee is in fact on FMLA leave, not just otherwise "eligible." Id. For example, an employee who has exhausted his or her FMLA leave entitlement may otherwise still meet the general FMLA "eligibility" requirements (e.g., worked 1,250 hours that year), see 29 U.S.C. § 2611(2), but the FMLA regulations are explicit that an employer is not required by FMLA to continue healthcare benefits after exhaustion of FMLA leave:

[A]n employer's obligation to maintain health benefits during leave (and to restore the employee to the same or equivalent employment) under FMLA ceases if and when . . . the employee . . . continues on leave after exhausting his or her FMLA leave entitlement in the 12-month period.

29 C.F.R. § 825.209(f) (emphasis added); see also 29 C.F.R. § 825.700 ("If an employer provides greater unpaid family leave rights than are afforded by FMLA, the employer is not required to extend additional rights afforded by FMLA, such as maintenance of health benefits (other than through COBRA), to the additional leave period not covered by FMLA." (emphasis added)). Courts as well as civil rights agencies like the Equal Employment Opportunity Commission (EEOC) have long recognized this end point to health benefits under the FMLA, even if the employee subsequently takes other protected leave. See, e.g., Neal v. City of Danville, Va.,, 2014 WL 7011123, at *4 (W.D. Va. Dec. 11, 2014) ("[T]he FMLA regulations make clear than an employer has no obligation to continue providing health benefits if any employee continues on leave following the exhaustion of FMLA leave." (emphasis added)); see generally EEOC Enforcement Guidance: Facts About the Family Medical Leave Act, the Americans with Disabilities Act, and Title VII of the Civil Rights Act (1999), at Question 15 (ADA does not require benefit continuation during ADA disability leave; continuation only required if given to other employees on similar leave status generally).

In short, whether benefits continuation is "required" under the FMLA is not satisfied by an employee simply meeting the FMLA's general "eligibility" requirements; an employee must actually be on FMLA leave to receive such benefit.

2. Proposed WAC 192-700-020 Defies RCW 50A.35.020 by Attempting to Require Benefits Continuation Even When Not Required by the FMLA.

Proposed WAC 192-700-020, however, is contrary to the clear meaning of RCW 50A.35.020 and appears to require health benefits continuation even if not "required" by the FMLA. RCW 50A.35.020. Under this proposed rule, employers would instead be obligated to maintain health benefits when an employee takes PFML if the employee simply met the "eligibility requirements" for continuation of health benefits under the FMLA. WAC 192-700-020(1)(a)-(b) (proposed) (emphasis added). Proposed subsection (3) of WAC 192-700-020 also requires employers to maintain benefits for the entire duration of PFML leave if "at any point" during PFML leave, the employee meets such "eligibility requirements." Id.

Proposed WAC 192-700-020 is not fully clear what "eligibility requirements" means (a concern in and of itself), but presumably, and based on representations from ESD personnel, "eligibility requirements" refers to the FMLA's general threshold eligibility criteria discussed above (i.e., 12-months of service, employer size, hours worked). Either way, the proposed rule's attempt to substitute the term "eligibility requirements" in place of the actual statutory directive that benefits continuation must be in fact "required by the [FMLA]" is contrary to that plain statutory language, and may mandate benefits continuation even when not "required by the [FMLA]." Compare 192-700-020, with RCW 50A.35.020. For example:

• Proposed WAC 192-700-020 compels employers to maintain health benefits under PFML even if the employee has exhausted FMLA leave, for example, in the event the employee "stacks" PFML leave after exhausting FMLA leave (i.e., up to 30 weeks of total leave), because, as noted above, an employee may still meet FMLA's underlying "eligibility" criteria despite exhausting FMLA. Such proposed rule is contrary to RCW 50A.35.020 because the FMLA is explicit that benefits continuation is not required after FMLA exhaustion. 29 C.F.R. § 825.209(f).

• By operation of subsection (3) of WAC 192-700-020, the proposed rule also appears to compel employers to extend health benefits even before the employee is eligible for FMLA leave because the proposed subsection requires benefits continuation for the "entire duration" of PFML leave if the employee meets "eligibility requirements" "at any point" during PFML leave—i.e., apparently even in the future. For example, an employee may begin PFML leave before working 12 months for the employer, and later meet such FMLA mark at any point during PFML leave (even if just a one day overlap). Such proposed rule is contrary to RCW 50A.35.020 because the FMLA makes clear that FMLA protections like benefits continuation are only required "during" FMLA leave and not required prior to FMLA leave eligibility. 29 C.F.R § 825.209(a); id. § 825.110(d); 73 Fed. Reg. 67934-01 at 15 (FMLA protections do not apply to leave taken prior to FMLA eligibility).

• Proposed WAC 192-700-020 also appears to require continuation of benefits in situations where the FMLA does not and cannot apply. For example, an employee can permissibly use PFML leave for a sibling, but the FMLA does not extend to siblings; thus, an employee cannot use—and employer is forbidden from applying—FMLA in such circumstance. But the proposed rule would apparently require benefits continuation in this circumstance if the employee otherwise meets the FMLA's service, employer size, and hours "eligibility requirements." Such proposed rule is contrary to RCW 50A.35.020 because FMLA leave, and thus benefits continuation, is not allowed in such circumstance and thus cannot be "required" by the FMLA.

As these scenarios show, proposed WAC 192-700-020 not only replaces the statutory "required by the [FMLA]" language with the very different "eligibility requirements" terms, but also treats such "eligibility" as sufficient for health benefits continuation—and apparently even unnecessary in some circumstances. On their face, such alterations are contrary to the plain language of RCW 50A.35.02. If approved as written, WAC 192-700-020 is likely subject to legal challenge and invalidation. Wash. Rest. Ass'n v. Wash. St. Liquor Bd., 200 Wn. App. 119, 127 (2017) ("[Agency] [r]ules that are inconsistent with statutes they implement are beyond the agency's authority and are therefore invalid."). Accordingly, we urge the Department to revise WAC 192-700-020 to reflect that benefits continuation is only required "if required by FMLA":

[PROPOSED REVISION] WAC 192-700-020 When does an employer need to provide a continuation of benefits to an employee who is on paid family or medical leave?
(1) An employer is required to maintain any existing health benefits to an employee when the following criteria are met:
(a) The employee is taking leave under Title 50A RCW from an employer; and
(b) Continuation of health benefits is required by the Family and Medical Leave Act, as it existed on October 19, 2017.
(2) If the employer and employee share the cost of existing health benefits, the employee remains responsible for the employee's share.
(3) If the criteria in subsection (1) of this section are met during an employee's duration of leave under Title 50A RCW, the employer is required to provide any existing health benefits for that entire duration of the employee's paid family or medical leave.

We believe these proposed revisions reflect the actual language of RCW 50A.35.020, including revising subsection (3) to accurately reflect RCW 50A.35.020's unremarkable proposition that if benefits continuation is required by the FMLA, an employer cannot otherwise deny benefit continuation "during any period" of PFML taken at that same time. RCW 50A.35.020. Such plain reading also avoids reading the statute to require benefits continuation before an employee even meets the FMLA's underlying eligibility criteria, which is not "required" by the FMLA as noted, and thus consistent with the language of RCW 50A.35.020.

Alternatively, we urge the Department to withdraw proposed WAC 192-700-020 entirely.

B. Policy Reasons Compel Revision or Withdrawal of Proposed WAC 192-700-020.

Besides inconsistency with the PFML statutory language, proposed WAC 192-700-020 should be revised as indicated or withdrawn for policy reasons. If adopted as written, proposed WAC 192-700-020 would underscore concerns that the PFML law is being implemented in unexpected ways—on the eve of its full implementation—contrary to the plain language and statutory intent that employers and other stakeholders have long reasonably relied upon. Among other things, for example, proposed WAC 192-700-020 would propagate and exacerbate the burdens of unexpected (and unintended) FMLA and PFML "leave stacking."

As the Department is aware, the PFML program replaces the Washington Family Leave Act, RCW Ch. 49.78 (WFLA), Washington's long-standing state-law counterpart to the federal FMLA. Like the FMLA, WFLA also required employers to provide generally up to 12 weeks of job protected leave. RCW 49.78.220. For the many years the WFLA and FMLA have co-existed, WFLA and FMLA leave generally ran concurrently, ensuring that their legislatively compromised 12-week total leave entitlements were not enlarged to 24 weeks or more through "stacking" of each law's leave consecutively. RCW 49.78.390(2) ("Leave taken under this chapter must be taken concurrently with any leave taken under the federal family and medical leave act of 1993."). Besides preserving legislative intent, concurrent WFLA and FMLA use also permitted employers to better predict and balance financial and other impacts of employees' extended and/or recurrent WFLA/FMLA absences, not limited to the cost of maintaining health benefits during WFLA/FMLA leave. RCW 49.78.290. Employers have long relied upon this essential feature of the law to tailor and manage legitimate coworker and business needs.

Like its WFLA predecessor, the PFML law on its face assures that "leave taken under this title must be taken concurrently with any leave taken the federal family and medical leave act of 1993," unless "otherwise permitted by the employer." RCW 50A.15.110. Pre-passage legislative materials relied upon by legislators, stakeholders, and the public in developing and compromising the essential features of the PFML program likewise repeat this assurance.

But as the Department has acknowledged, it has become apparent that gaps in the PFML law effectively allow employees to end-run the requirement that PFML and FMLA leave run concurrently by simply delaying submission of their PFML benefits application until after the employee has sought and exhausted FMLA leave, resulting in stacking and doubling (if not more) the total amount of FMLA + PFML leave to 24 weeks or more. This effect of this strategic maneuvering of what is essentially a paperwork requirement has surprised employers (and continues to do so as public comments to this day attest), leaving employers scrambling to quickly address the impact of unexpectedly doubled mandatory leave. Perhaps more significantly, this surprising end-run and result has eroded confidence that otherwise plainly written, bipartisan legislation will mean what it says.

Respectfully, adopting WAC 192-700-020 as written will further erode confidence in the otherwise plain terms of RCW Ch. 50A and exacerbate the burdens of unexpectedly doubled FMLA and PFML leave. While many employers recognize that they cannot cure any statutory loophole that permits FMLA and PFML stacking generally, employers have instead relied on RCW 50A.35.020's language specifically, i.e., that health benefit continuation is only "required" during concurrent FMLA and PFML use, as a plainly permitted means to otherwise encourage the concurrent use that has long been a hallmark of pre-existing family and medical leave law. Proposed WAC 192-700-020 would not only undermine this permissible avenue for encouraging such long-permitted concurrent leave use, but would do so on the eve of PFML implementation in just a few short weeks, long after employers have evaluated and revised their total leave programs and operational needs in view of such reasonable expectation. This includes, but is not limited, to other commentators' concerns regarding the unexpected and dramatic increase in financial costs that employers will bear if the proposed rule is adopted, potentially doubling (if not more) the duration employers must finance health benefits premiums. See, e.g., Kristin Anger, Summit Law Group (comment submitted via Open Town Hall, Nov. 25, 2019 at 9:45 a.m.).

It is undisputed that family and medical leave is a worthy and important aim. But this aim must be balanced against reasonable employer needs and expectations—particularly expectations that are safeguarded by the plain letter of the law. For the foregoing reasons, we urge the Department to revise proposed WAC 192-700-020 as indicated, or withdraw it entirely.

Very truly yours,

Amy Mensik, Shareholder, Witherspoon Kelley