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Anne Paxton November 7, 2019, 1:52 PM

Comments on Proposed Final Rules for Paid Family Leave- Phase 6, Appeals
Unemployment Law Project

As a legal aid organization specializing in employee appeals of benefits, the Unemployment Project would like to comment on one of the proposed new sections of WAC 192-800 relating to appeals of paid family and medical leave determinations.

When the leave provisions of the law takes effect in 2020, we expect to have some clients who need representation for appeals before the Office of Administrative Hearings (OAH). We believe WAC 192-800-060, "What happens if an appeal or a petition has been filed and one of the parties has a change of contact information?" may need clarification.

Contact information as currently recorded and conveyed by the Employment Security Department, whether or not it is changed at some point, is frequently inadequate to ensure proper notice and receipt of documents within the administrative hearing process.

The practice of OAH is to mail, or post on an online email portal, the initial Notice of Hearing and exhibits for each case, using the contact information supplied by ESD for the claimant, the employer, and in some cases the employer's representative.

In preparing for a hearing, we frequently need to submit supplemental exhibits and we are required to send them both to OAH and to opposing parties. We usually try to do this by fax, because of the short timef rames between when hearings are scheduled and when they occur—about a week. Often, sending a supplemental exhibit by mail would be likely to result in receipt after the scheduled hearing.

OAH has and makes known a fax number from which exhibits sent by fax are reliably directed to the judge for a particular docket . So we rarely have trouble sending OAH a supplemental exhibit as late as the day before a hearing.

But there is no formal requirement for the employer or their third-party representative to provide a fax number. For the employer or their representative, we are sometimes able to find a fax number within the exhibits. But it is often incorrect. Very often, we have no fax number. If a third party representative such as Equifax is representing the employer, we have no addressee other than the name "Equifax" and only a post office box in St. Louis, Missouri as the address, which is basically useless for submitting a supplemental exhibit. Unfortunately this frequently leads to the employer or their representative saying they did not receive the copy we sent. Sometimes this leads to the hearing being postponed which adversely affects claimants who appeal.

We are in discussions with OAH on ways this problem can be addressed. However, the parties' addresses that OAH is working with are the ones supplied by ESD.

These proposed rules for Paid Family Leave are geared to an appeals process that will be very similar to the one used for unemployment benefits. We feel it is important to provide for contact information that will be useful to parties within the administrative hearing process. In acknowledgment of the abbreviated hearing process in these cases, we believe that for sending copies of documents necessary for a hearing, the contact information should include not only an address, but insofar as it is possible an accurate fax number or email. Just as ESD has shifted the vast majority of its claim and tax filing online, almost all businesses and other entities now use such electronic means to communicate, and to ensure due process for all parties, the same communication method should be used in the appeals process.

Thank you for the opportunity to comment on these proposed rules.

Respectfully submitted,

Anne Paxton
Staff Attorney
Unemployment Law Project

Name not shown November 7, 2019, 11:20 AM

In regards to WAC 192-700-020 - Please ensure that employers only need to continue health benefits to an employee on PFML when the employee is on FMLA or has FMLA available. As a small business employer with under 50 employees we do not have FMLA, it would be financially burdensome to require employers to continue healthcare premiums for their use of PFML when we do not have FMLA.

Name not shown November 6, 2019, 9:10 AM

Please provide more guidelines for designating benefits as "supplemental". How does an employer go about designating leave benefits as supplemental? Does the designation have to be established for all employees throughout the calendar year and only be used for supplementing Paid Family and Medical Leave? Or could an employer designate an employee's entire PTO benefit as supplemental, and therefore not have to report any PTO hours taken throughout the year even if not used for Paid Family and Medical leave, during quarterly reporting?

Name not shown October 28, 2019, 6:59 AM

Will time spent while on WA PFML be required to count towards the accrual of an employee's paid time off or sick time?

SYLVIA HUBBARD October 18, 2019, 4:12 PM

WAC 192-620-030 - please clarify if an employer can differentiate supplemental benefit payments between paid medical leave and paid family leave. May an employer designate certain leave as supplemental benefit payments when the employee is on paid medical leave through an approved voluntary plan, but not under the state's paid family leave?
WAC 192-530-090 - please clarify "express written agreement". Are benefit enrollment forms signed by the employee sufficiently meet the requirement of "express written agreement" or will there be a separate agreement required?

Name not shown October 17, 2019, 9:16 AM

1. Can this benefit be used to supplement work related injuries (like workers comp)?
2. How does the state FLA, FMLA and now PFML interact?
3. Does the waiting period need to be met for each event/leave?
4. When will the employer portal be available for viewing?
5. Can employees use this leave intermittent?
a. Is it similar to FMLA (hours, days or weeks)
6. Does the benefit calculation include shift premium (6%)?
7. Will there be a benefit calculator available?
8. Will bonding time for the non-birthing parent always be approved for the full 12 weeks?
9. If a company has two employees who are married, does the family leave need to be shared if they are welcoming a new child like it does for FMLA?
10. Can we deny an employee reinstatement if they would’ve been laid off during the PFML period?
11. What record keeping is required on the employer side?
12. Can you confirm if an employee takes leave after birth or placement of a child, the leave must conclude within 12 months of the birth or placement?

Name not shown October 9, 2019, 3:26 PM

Please clarify New Section 192-700-020, (3). The original law states that benefits shall be continued only if the employee is eligible for benefits continuation under the federal FMLA. This section seems to indicate that even if the employee has already exhausted FMLA, the employer must still continue benefits for the duration of PFML. Given PFML and FMLA may not always run concurrently, and there are times when one can be taken but not the other (or FMLA has been exhausted before the employee elects to apply for PFML) this could result in an unreasonable burden for employers to maintain benefits for longer than 12 weeks.

Northwest Justice Project Alyson Dimmitt Gnam August 21, 2019, 4:57 PM

The following comments to the Washington Paid Family and Medical Leave Act Phase 4 Rules are from Northwest Justice Project and particularly consider the effects of the proposed rules on our client community of low-wage workers and farmworkers who often are not English proficient.

WAC 192-510-080 [relating to waivers for employees only temporarily working in Washington]
We expect that employers of H-2A temporary foreign agricultural workers will seek a conditional premium waiver when they import workers to Washington for shorter contract periods. Based on RCW 50A.04.120, it appears that the employee may be asked to sign a waiver application by the employer, which would then be automatically approved by the department. H-2A workers usually do not speak or read English and have little to no familiarity with U.S. and Washington law. To ensure that workers are not required to sign document in English without information about their contents or their rights, this section be amended to include a requirement that the employer provide the employee with a notice about PFML and waiver eligibility in the employee’s language before asking the employee to sign an application for the waiver.

WAC 192-800-040 [related to timeliness of appeals and petitions for review]
The 30-day time limit in this rule is triggered by mailing of the decision or notice if that is earlier than notification or delivery. Migrant farmworkers and H-2A temporary foreign agricultural workers are unlikely to receive a mailing if they have moved on from employer housing after the season has ended. Despite this, the rule would trigger their 30-day time limit for appeal or review upon mailing. The “good cause” provision already in the rule allows consideration of the excusability of delay. This section should be amended by adding at subsection (6) that a delay in filing the appeal/review is excusable when an employee does not timely receive the mailed notification/decision through no fault of their own.

Northwest Justice Project Alyson Dimmitt Gnam July 26, 2019, 11:58 AM

Comment on Phase 5 Rules from Northwest Justice Project
These comments particularly consider the effects of the proposed rules on our client community of low-wage workers and farmworkers who often are not English proficient.

WAC 192-540-040(5) Employer reporting requirement for commissioned or piecework employees.
Employers are required by law to keep records of hours worked for employees who are paid by piecework. Many agricultural workers who work at piece rate do so during harvest season. Especially because agricultural workers are exempt from overtime protections, workweek hours during the harvest are commonly longer than 40 hours. The “40-hour default” rule could easily disqualify eligible workers whose employers have failed to meet their legal recordkeeping obligations under WAC 296-131-015 (agricultural paystub requirements). Employers for non-agricultural piecework employees are also required to track hours to ensure compliance with minimum wage standards. See WAC 296-126-021(3).

To ensure this section does not exclude eligible employees from PFML, this section should read: “Report the actual number of hours worked by employees paid by commission or by piecework. If there are no reliable time keeping records, If the employer has not kept reliable time keeping records, then the Department should accept the actual hours reported by the employee based on the employee’s own records or best recollection of hours worked. If the employee cannot provide records or their best recollection, report a full-time commissioned or piecework employee at forty hours worked for each week in which any of their duties were performed.”

WAC 192-610-066 (2) Making employees aware of rights and responsibilities
Many low-wage workers, and particularly farmworkers, do not have regular access to computers or the internet and will be dependent on access to a hard copy of the guide in order to access the basic information on the laws, rules and procedures for the paid family and medical leave program.

This section should be amended to indicate the following: “For employees who have not authorized the department to contact them electronically, the department will send a written notice containing the web address for the guide as well as a hard copy of the informational employee guide in the employee’s language.”

If not this, at minimum the department must advise employees of their right to request a hard copy in their language.

WAC 192-610-066 (6) Making employees aware of rights and responsibilities
Many low-wage workers, and particularly farmworkers, do not have regular access to computers or the internet and will be dependent on access to a hard copy of the guide in order to access the basic information on the laws, rules and procedures for the paid family and medical leave program. Many are also limited English proficient, and will not be able to understand the guide unless it is provided in their own language.

For these reasons, the following should be added to this section: “All employees who have been provided the employee guide in a language they are able to read and in a format they can access, whether online or hard copy, are presumed to understand the employee guide…”

WAC 192-640-015(7) Time to submit waiver application for overpayment
This section should be amended to replace “ten working days” with “30 days.” The ten-day minimum for completion of a waiver application and documents is unnecessarily short and will unduly burden employees who continue to deal with a health condition, are caring for a young baby/child, or are LEP or low-literacy. Ten days is inadequate to gather necessary documentation and respond completely to a notice in general, particularly given the likely circumstances causing the employee to be on leave. Employees who speak a language other than English or who have low or no literacy will need to seek assistance to understand and complete a waiver application. In addition, many agricultural workers are migrants and may need additional time to receive a notice of overpayment and submit an application due to their migration and lack of permanent address. A reasonable time for employees to complete an application is 30 days.

WAC 192-640-020(1) Waiver of overpayment for equity and good conscience
This section should be amended to replace “seventy percent” with “one hundred percent.” The department should presume repayment would leave the employee unable to provide basic needs if total household resources in relation to household size do not exceed one hundred percent of the Lower Living Standard Income Level (LLSIL). This is more reasonable and reflective of the cost of living in Washington State.

WAC 192-640-025(2) “At fault” standard for overpayment
This section should be amended as follows to avoid punishing an employee who did not have actual knowledge of an improper payment. “The employee may be considered at fault, even though all relevant information was provided before a decision was issued, when the employee should reasonably have known the payment was improper.

Deanna DeLong July 1, 2019, 4:11 PM

Good afternoon Christy,
Provided that you meet the required 820 hours in the qualifying period. You would have 12 months from the date of your child's birth to use the benefit. The 12-month timeline applies to both you and the baby's father. If you both participate in the PFML program, and intend to file separate claims then you will each get 12 weeks of bonding time. As long as you meet the requirements, you have until your baby's first birthday to use the 12 bonding time for your newborn baby.