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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

Melodie Shrontz November 26, 2019, 3:49 PM

The following statement is on behalf of CommonSpirit Health regarding the Washington State Paid FML. As a large healthcare employer, with approximately 13,000 employees in our hospital systems in the state of Washington, we encourage all our employees to take leave as necessary, providing flexible options for pay and job protection while on approved leave. Although the regulations, as proposed, will now provide notification to an employer on the amount an employee is approved through the state, we are still unable to ensure payment can be adequately supplemented and timely administration of employer benefits. The proposed regulation presents a significant administrative burden to an employer. Furthermore, given the regulations do not require an employee to file with the State of Washington for Paid FML or require the leave to run concurrently with the FMLA, an employee may receive extended job protection. The extended job protection is not what was initially proposed by the state of Washington nor the intent of this paid FML program. As a large employer, we ask that the state consider how employers will manage a high volume of Paid FML requests. Additionally, please consider requiring all employees in the State of Washington to file for Paid FML, and all approved state leaves run concurrently with federal FMLA. We appreciate your consideration of this request and additional clarifications for implementation of WA State Paid FML.

Name not shown November 26, 2019, 10:31 AM

We would like to see the originally proposed rule of allowing the employer to decide if FMLA and PMFL should run concurrently be approved. Recent information about a rule being approved that requires employers to allow FMLA and then PMFL is very concerning and would have a significant impact on business, likely for most employers.
Additionally, requiring employers to continue benefits beyond the FMLA eligibility would be a financial burden.

Name not shown November 26, 2019, 9:24 AM

What is the timeline, primarily the cutoff that EE's can contact the state to retro the Paid Family Leave. There is concern if EE's do not file right away and our company pays 100% of their accruals. If the employee then files 30 days later or months later and even after the LOA ended that the employee could receive pay from the state and also by us employer at 100%.

Kristin Anger November 25, 2019, 9:45 AM

This input was also submitted to

I am writing to comment on proposed WAC 192-700-020, a draft regulation related to the Paid Family and Medical Leave (PFML) law, Chapter 50A RCW. Our firm represents a significant number of employers around the State, including many public sector entities such as counties, cities, public transit agencies, fire districts, libraries, and other special purpose districts. On behalf of our clients, we have significant concerns about this proposed regulation. As discussed below, the draft rule is fundamentally inconsistent with the statute enacted by the Legislature. In addition, the proposed rule would impose substantial financial burdens on employers.

A. The Proposed Rule Is Inconsistent With RCW 50A.35.020

The law as enacted by the Washington State Legislature provides that an employer must maintain an employee’s health benefits during PFML leave “[i]f required by the federal family and medical leave act, as it existed on October 19, 2017.” RCW 50A.35.020 (emphasis added). The meaning of language is straightforward. If the FMLA requires health insurance continuation, then an employer must continue employer-paid coverage during a PFML leave. If the FMLA does not require continuation of health insurance, then an employer is not required to continue employer-paid health insurance.

Despite the plain language of the statute, ESD’s draft regulation establishes a different (and lower) bar for health insurance continuation. WAC 192-700-020 would require an employer to maintain any existing health benefits for 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.” Thus, the draft regulation abandons the statutory requirement that benefit continuation actually be required by the FMLA. Instead, benefit continuation would be required merely where an employee “meets the eligibility requirements” for FMLA. The language would require benefit continuation in situations where it is not required by the FMLA. For example:

• An employee takes PFML leave to care for a grandparent. Such leave is not covered by the FMLA, so the employee is not entitled to protected leave or benefit continuation under the FMLA. But if the employee worked for his/her employer for 12 months and worked 1,250 hours in the 12 months preceding the leave, the draft WAC would purportedly require the employer to continue employer-paid health insurance during the PFML leave.
• An employee takes 12 weeks of FMLA and is entitled to job protection and benefit continuation. At the conclusion of FMLA leave, the employee applies for 12-18 weeks of PFML leave. Although the employee had already exhausted FMLA leave – and benefit continuation would clearly not be “required by” the FMLA – the draft WAC would purportedly require the employer to maintain the employee’s health insurance for another 12-18 weeks beyond FMLA exhaustion.

As these examples reflect, contrary to the express statutory language of RCW 50A.35.020, proposed WAC 192-700-020 would compel employers to continue health insurance in situations where that is not “required by” the FMLA.

We respectfully submit that if ESD enacts proposed WAC 192-700-020 as currently written, it would be subject to legal challenge. As the Washington Court of Appeals recently explained:

Agencies lack the authority to “ ‘amend or change legislative enactments.’ ” Dep’t of Ecology v. Campbell & Gwinn, LLC, 146 Wn.2 d 1, 19, 43 P.3d 4 (2002) (quoting Dep’t of Ecology v. Theodoratus, 135 Wn.2d 582, 600, 957 P.2d 1241 (1998)). Thus, “rules that are inconsistent with the statutes they implement are invalid.” Bostain v. Food Express, Inc., 159 Wn.2d 700, 715, 153 P.3d 846 (2007). “A rule that conflicts with a statute is beyond an agency’s authority. Invalidation of the rule is the proper remedy.” Devine v. Dep’t of Licensing, 126 Wn. App. 941, 956, 110 P.3d 237 (2005) (citing H & H P’ship v. Dep’t of Ecology, 115 Wn.App. 164, 170, 62 P.3d 510 (2003)).

Washington Rest. Ass'n v. Washington State Liquor & Cannabis Bd., 448 P.3d 140, 146 (Wn. Ct. App. 2019).

To determine the legislative intent behind a statute, Washington courts focus on the statutory language itself, regardless of contrary interpretation by an administrative agency. AOL, LLC v. Washington State Dep’t of Revenue, 149 Wn.App. 533, 205 P.3d 159 (2017) (citing Agrilink Foods, Inc., v. Dep’t of Revenue, 153 Wn.2d 392, 396, 103 P.3d 1226 (2005)). If the meaning of the statute is plain on its face, courts must give effect to that plain meaning. State v. Schwartz, 450 P.3d 141 (Wn. Sup. Ct. 2019). Here, the meaning of RCW 50A.35.020 could not be any more plain: employers are required to continue an employee’s health insurance during a PFML leave if required by the federal FMLA. A rule that requires employers to provide benefit continuation in additional circumstances (and when not required by the FMLA) is inconsistent with the PFML statute, and therefore subject to invalidation. Because proposed WAC 192-700-020 attempts to do just that, we do not believe it would withstand judicial scrutiny.

Even assuming for the sake of argument that the meaning of RCW 50A.35.020 was not plain on its face, a basic rule of statutory interpretation provides further support for the conclusion that proposed WAC 192-700-020 is inconsistent with the PFML statute. It is a fundamental rule of statutory construction that the Legislature “is deemed to intend a different meaning when it uses different terms.” State v. Roggenkamp, 153 Wash. 2d 614, 625, 106 P.3d 196, 201 (2005). See also State v. Beaver, 148 Wash.2d 338, 343, 60 P.3d 586 (2002) (“[w]hen the legislature uses different words within the same statute, we recognize that a different meaning is intended.”); Simpson Inv. Co. v. Dep't of Revenue, 141 Wash.2d 139, 160, 3 P.3d 741 (2000) (it is “well established that when ‘different words are used in the same statute, it is presumed that a different meaning was intended to attach to each word.’ ” (quoting State ex rel. Pub. Disclosure Comm'n v. Rains, 87 Wash.2d 626, 634, 555 P.2d 1368 (1976))).

Had the Legislature intended to require employers to provide benefit continuation whenever employees meet FMLA eligibility requirements (versus when continuation is actually “required by” the FMLA), the Legislature would have used wording to that effect. Indeed, it did exactly that in another section of the PFML statute. RCW 50A.35.010 addresses employee eligibility for job protection during a PFML leave. In that portion of the statute, the Legislature adopted the following language:

This section does not apply unless the employee: (i) Works for an employer with fifty or more employees; (ii) has been employed by the current employer for twelve months or more; and (iii) has worked for the current employer for at least one thousand two hundred fifty hours during the twelve months immediately preceding the date on which leave will commence.

RCW 50A.35.010(6)(a). Notably, in addressing job protection, the Legislature did not elect to simply say that an employee is entitled to job protection “if required by” the FMLA. Rather, the Legislature spelled out the requirements set forth above (which happen to be the same eligibility requirements for the federal FMLA). Under this statutory language, it is possible that an employee would be eligible for job protection during a PFML leave even if such protection is not “required by” the FMLA. For example, if an employee had already exhausted his/her 12 weeks of FMLA leave and job protection was therefore not “required by” the FMLA, the employee could nevertheless be entitled to job protection during a PFML as long as the employee works for an employer with at least 50 employees, had worked for the employer for at least 12 months, and worked at least 1,250 hours in the 12 months preceding the leave.

Quite significantly, the Legislature used different language in RCW 50A.35.020, which addresses the obligation to continue health benefits during a PFML leave. The Legislature did not state, as it did in RCW 50A.35.010, that an employee is eligible for benefit continuation during a PFML leave whenever he/she meets the FMLA eligibility requirements of working for an employer with at least 50 employees, working for the employer for 12 months, and working 1,250 hours in the 12 months preceding the leave. Rather, the language used by the Legislature in RCW 50A.35.020 states that health benefits must be maintained “if required by the federal family and medical leave act . . . .” Under longstanding rules of statutory construction, by using different language in RCW 50A.35.020 than it chose to use in RCW 50A.35.010, the Legislature clearly intended different meanings. And yet, despite the very different wording, proposed WAC 192-700-020 would impose the same eligibility requirements for both job protection and health benefit continuation.

For all of the foregoing reasons, we urge the Employment Security Department to revise proposed WAC 192-700-020 to ensure that it is consistent with the statute as enacted by the Legislature. Employers should be required to maintain an employee’s health insurance benefits during a PFML only when doing so is “required by” the federal FMLA.

B. Proposed WAC 192-700-020 Would Impose Significant Additional Costs on Employers

The draft rule constitutes an eleventh-hour surprise to employers who have spent the last couple of years attempting to understand and prepare for the operational and economic impacts of the PFML law. Proposed WAC 192-700-020, which was promulgated by the Department just three months before the law fully takes effect, would dramatically increase the economic costs of PFML compliance for employers across the State.

Under the FMLA, an employer with 50 or more employees must continue an eligible employee’s health benefits during an FMLA-covered absence, which includes the obligation to pay the employer’s share of health insurance premiums. Many of our public sector employers provide generous health insurance benefits, picking up the full monthly premium for coverage. The costs can be significant; an employer might pay $1,000 or more per month to cover an individual employee and $2,400 per month for full family coverage. As a result, the obligation to continue paying health insurance during an employee’s 12-week FMLA leave could cost an employer from $3,000 to $7,200.

Based on the statutory language in RCW 50A.35.020, employers have understood that when the PFML takes effect, their obligations regarding health insurance continuation would not increase – as they are only required to continue health benefits during a PFML leave “if required by” the FMLA. But proposed WAC 192-700-020 potentially doubles the economic burden on employers related to benefit continuation. As described above, an employee who has already taken 12 weeks of FMLA leave (and received paid health insurance during the leave) may turn around and take another 12-18 weeks of PFML leave. And under the draft rule, the employer would be required to continue providing employer-paid health insurance during this additional PFML leave, even though the employee is no longer eligible for FMLA leave and benefit continuation is not “required by” the FMLA. For an employer paying $1,000 per month for health insurance, this results in an additional cost of $3,000-$4,000; for an employer paying $2,400 per month, the additional cost could range from $7,200-$9,600. And these costs are per employee taking leave. The proposed regulation is thus not only inconsistent with the PFML statute, but it also imposes a substantial economic burden on employers.

For the reasons set forth above, we urge the Department to withdraw or revise WAC 192-700-020. The draft rule is not consistent with the PFML statute and it would impose significant additional costs on employers. Thank you in advance for your consideration of this input.

Kind regards, Kristin Anger

Name not shown November 21, 2019, 10:34 AM

Currently, Draft WAC 192-700-020 does not have a requirement that an employee actually be on FMLA to require the employer continue paying health insurance premiums. It only requires that the employee meet eligibility requirements. This apprears to be an excessive burden on employers since there are multiple instances where FMLA and PFML do not overlap. If an employee has exhausted FMLA and applies for PFML, employers should not be required to continue paying premiums for health insurance.