A Medley of Legislative Changes for Employers

05.22.19

“I Get By With a Little Help From My Friends”[1] / “Taxman”[2]

In 2017 and 2019, Washington created two new government programs funded by employee payroll deductions. This year, the Washington legislature created a new long-term services program (implemented in two stages from 2022 to 2025) and also amended the Paid Family Medical Leave program (which is in the midst of being phased in now: payroll deductions started this year, and benefits begin January 2020).

Paid Family Medical Leave—Clarifying Amendments: The legislature clarified some aspects of the Paid Family Medical Leave (PFML) Act, which passed in 2017. One critical area of confusion was whether employees could use employer-paid leave benefits to “gross up” their PFML benefits to their regular pay. It is now clear: employers may (but are not required to) offer employees the option to use employer-provided paid leave benefits such as vacation, sick leave, or other paid time off to supplement PFML benefits. In contrast to the federal Family & Medical Leave Act (FMLA), which allows employers to require employees to use available paid leave benefits while on FMLA leave, employers may not require employees to use employer-paid leave to supplement PFML benefits: it is the employee’s choice whether to use employer-paid leave benefits (assuming that the employer allows it). If the employer provides multiple types of paid leave, the employee probably also gets to choose which type to use.

Long-Term Services & Support Trust Program: Washington has created a new benefit program to provide long-term services to qualified individuals, funded by a new payroll deduction. The program will provide government paid long-term support services to individuals who require assistance with at least three activities of daily living, and who meet other criteria (work history, premium payment history, etc.). Benefits will begin in 2025. In the meantime, beginning in January 2022, Washington employees will be assessed a premium of 0.58 percent of their wages, to fund the Long-Term Services and Supports Trust Program. Unlike PFML, there is no employer-paid share of the premium, though the employer is responsible for deducting the premium from an employee’s wages and forwarding the payment to the Employment Security Department (ESD). An employee who demonstrates that he or she has long-term care insurance is exempt from the premium assessment.

“She Works Hard for the Money!”[3]

In 2018, the legislature passed the Equal Pay Act (the 2018 EPA) to address gender pay disparities. The 2018 EPA eliminated employers’ ability to rely on individual pay history to justify pay differences between men and women in the same or similar jobs. At that time, we advised employers to cease asking for pay history from applicants, to avoid any implication that a pay disparity was related to salary history.

This year the legislature enacted that recommendation into law when it amended the 2018 EPA with the Equal Pay and Opportunities Act (the EPOA). Effective July 28, 2019, employers are expressly prohibited from seeking past compensation information from applicants. An employer may confirm an applicant’s wage or salary history, but only after making a job offer (including compensation) to the applicant, or after the applicant has voluntarily disclosed compensation history.

The EPOA takes it a step further, however. Employers with 15 or more employees are required to provide an applicant with minimum wage or salary information for the relevant position upon request after the employer has made a job offer to the applicant. If the situation involves an internal transfer or promotion, upon request the employer must provide the applicant with the wage scale or salary range for the new position. If a salary range does not exist, the employer must provide the minimum wage or salary expectation.

“A Mother’s Love”[4]

In 2017, the legislature passed a comprehensive bill requiring employers to accommodate pregnancy and related conditions, outlining various accommodations that employers must make. The legislature has now amended the statute to clarify that employers must accommodate new mothers expressing breast milk by providing (1) reasonable break time for that purpose, and (2) a private location other than a restroom if such a location exists at the worksite. If no private location exists, the employer and employee are to work together to identify a convenient location and work schedule to accommodate their needs. These accommodations must be provided up to two years following the child’s birth.

“It’s a Sign of the Times”[5]

In the continuing effort to combat domestic violence, the ESD will be creating a poster regarding domestic violence that employers must post in a conspicuous place with other required employment posters. The poster will include a space for the employer to provide the name(s) of community resources regarding domestic violence. The poster will be available on the ESD website for downloading. The bill specifically provides that it does not create any liability for any person or entity for any acts or omissions.



[1] Beatles (1967).

[2] Beatles (1966).

[3] Donna Summer (1983).

[4] Aretha Franklin (1966).

[5] Petula Clark (1966).

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