Federal & State Regulations | FMLA - Washington | J. J. Keller® Compliance Network

Summary of differences between federal and state regulations

In addition to the federal FMLA, Washington employers need to be aware of state provisions. Provisions for paid family and medical leave, provisions for maternity disability, military family leave, paid sick leave, and domestic violence leave must also be considered.

Paid family and medical leave

Eligible employees are entitled to receive up to 90 percent of their income when they take leave for certain qualifying reasons. In some situations, both employers and employees pay premiums, which began being assessed as of January 1, 2019.

Maternity disability

Washington state maternity disability regulations require that a woman be granted leave of absence for the period of time that she is sick or temporarily disabled because of pregnancy or childbirth. The employee would be entitled to leave until released by her health care provider. If an employee experiences complications in pregnancy, she may be eligible for up to 18 weeks of WA paid family and medical leave.

Pregnancy disability leave may run concurrently with the federal FMLA as long as the employee is eligible for both.

The public policy of Washington requires that employers who grant leave to their employees to care for a newborn child make the same leave available upon the same terms for adoptive parents and step-parents, men and women.

Family Care Act

Workers with a paid leave benefit are entitled to use their choice of paid sick leave or other paid time off to care for a sick family member under Washington's Family Care Act. As long as the workers are eligible to use their paid leave for their own illnesses, they must also be allowed to use it for a family member who is ill. The seniority of the worker has no bearing on these benefits. Employers of any size with paid leave benefits are covered under the Family Care Act.

Under the state Family Care Act, employers who provide a paid leave benefit must allow employees to use such paid leave as sick leave, vacation, holiday, paid time off, and some short-term disability plans to care for sick family members. There is no need to have a certain number of employees to be covered by the law.

Many employers combine paid leave categories such as sick leave and vacation leave, often described as “paid time off,” or PTO. Such PTO allows employees the choice as to their use of this leave, thereby maintaining the intent of this law. In addition, employers may require employees to use PTO (provided it may be used for any purpose) as a prerequisite to using leave designated for a specific purpose, such as an extended illness leave, without violating the law, provided other leave is available for employees to use to care for sick family members on the same terms that it is available for an employee's health condition.

If employees are entitled to sick leave or other paid time off, then an employer must allow them to use any or all of their choice of sick leave or other paid time off to care for the following reasons:

To care for a child (of the employee) with a health condition that requires treatment or supervision; or
To care for a spouse, parent, parent-in-law, or grandparent of the employee who has a serious health condition or an emergency condition.

An employee may not take advance leave; it must have been earned before being used.

Generally, the family member needs to have a serious health condition, but leave may also be taken to care for a child with a routine childhood illness or for needed preventive care. Time off can also be used for a disability of an adult child, and for short-term care of a pregnant spouse during or after childbirth.

Employers must not discharge, threaten to discharge, demote, suspend, discipline, or otherwise discriminate against an employee because the employee has exercised, or attempted to exercise, any right provided under this law.

Military family leave

Employers must allow up to 15 days of unpaid leave for employees whose spouses are called to active military duty or when a military spouse is on leave from military duty.

Employees are those who work an average or 20 hours or more per week. The time off must be granted if the military duty is during a period of military conflict.

The employee must provide the employer with notice of his or her intention to take leave. This notice must be provided within five business days of receiving official notice of an impending call or order to active duty or of a leave from deployment.

Employees who take military family leave are entitled to be restored to their positions. Employees are also entitled to have benefits continued during leave. Employees may elect to substitute any accrued paid leave.

Parental leave (adoption)

Employers must allow adoptive parents the same leave as it allows biological parents. Leave is also to be provided upon the same terms for men as it is for women.

Paid sick leave

Virtually all Washington employers must provide their non-exempt employees with paid sick leave.

Accrual

Paid sick leave accrues at a minimum rate of one hour of paid sick leave for every 40 hours worked. Employers may also front-load the paid sick leave as long as the accrual, use, and carryover provisions are otherwise met.

An employee is entitled to use accrued paid sick leave beginning on the 90th calendar day after the start of employment.

Unused paid sick leave of 40 hours or less must be carried over to the following year.

Employers may provide employees with more generous carry over and accrual policies.

Using PTO benefits

Employers may use PTO benefits to satisfy their paid sick leave requirements. Employers must, however, notify employees if their PTO program is intended to satisfy the WA paid sick leave requirements.

All PTO must be available on the same terms for all purposes under the WA paid sick leave law, unless employers provide a more generous amount of leave in the same bank.

The law also requires the following:

The sick leave portion must accrue at the rate of one hour or more for every 40 hours worked.
The sick leave must be paid at the greater of the minimum hourly rate for tipped employees or the normal hourly compensation.
At least 40 hours of unused time must be allowed to be carried over.
The sick leave portion must be tracked separately from the non-sick leave portion.
Employers may not require or encourage employees to use their sick leave for non-paid sick leave purposes before accessing the non-paid sick leave time.

Reasons for paid sick leave

Employees may use paid sick leave for the following reasons:

To care for themselves or a family member.
When the employee's work or the employee’s child’s school or place of care has been closed by order of a public official for any health-related reason.
For absences that qualify for leave under the state’s Domestic Violence Leave Act.
Effective January 1, 2025: When the employee’s child’s school or place of care is closed for either a health-related reason or public emergency.

“Family member” includes the following:

A child (biological, adopted, foster child, stepchild, or a child for whom the employee stands in loco parentis),
A parent (biological, adoptive, de facto, foster, stepparent, or legal guardian of an employee or the employee’s spouse or registered domestic partner, or someone who stood in loco parentis),
A spouse or registered domestic partner,
A grandparent or grandchild,
A sibling,
Effective January 1, 2025, this includes any person who regularly resides in the employee’s home (unless there is no expectation that the employee cares for the person) or whose relationship creates an expectation of care by the employee, or
Effective January 1, 2025, this includes a child's spouse.

Employers may allow employees to use paid sick leave for additional purposes.

Employers may require employees to give reasonable notice of the need for paid sick leave. If paid sick leave is taken for more than three days, the employer may require verification that the employees leave was for an authorized reason.

Construction workers

Effective January 1, 2024, employers must pay any unused and accrued sick leave to construction workers if their employment lasts fewer than 90 days.

The payout requirement is limited to workers directly engaged in construction work by performing service, maintenance, or construction work on a jobsite, in the field, or in a fabrication shop using tools of the worker’s trade or craft.

If frontloading the leave, employers must pay out the entire balance of frontloaded time to covered construction workers at separation.

Previously, this requirement applied to employees covered under North American Industry Classification System code 23, with the exception of those under North American industry classification system code 236100, residential building construction.

Paid sick leave for drivers of transportation network companies

Beginning January 1, 2023, transportation network companies must provide paid leave to drivers operating on their driver platform. Drivers must accrue one hour of earned paid sick time for every 40 hours of passenger platform time worked.

Drivers are entitled to use accrued earned paid sick time upon recording 90 hours of passenger platform time on the transportation network company's driver platform.

Drivers may carry over up to 40 hours of unused earned paid sick time to the next calendar year. If a driver carries over unused earned paid sick time to the following year, accrual of earned paid sick time in the subsequent year must be in addition to the hours accrued in the previous year and carried over.

Drivers are entitled to use accrued earned paid sick time if they have used the transportation network company's platform as a driver within 90 calendar days preceding their request to use earned paid sick time.

Drivers may take the accrued paid sick time for the following reasons:

The driver’s own illness, injury, or health condition; including the need for medical diagnosis, care, or treatment; or need for preventive medical care;
To care for a family member with an illness, injury, or health condition; including the need for a diagnosis, care, or treatment of a condition; or for a family member‘s preventive medical care;
When the driver's child's school or place of care has been closed by order of a public official for any health-related reason;
For absences for which an employee would be entitled for domestic violence leave; and
During a deactivation or other status that prevents the driver from performing network services on the transportation network company's platform, unless the deactivation or status is due to a verified allegation of sexual assault or physical assault perpetrated by the driver.

Drivers may use accrued days of earned paid sick time in increments of a minimum of four hours.

Domestic violence leave

All employers, regardless of size, are subject to the provisions of this law. Time off may be paid or unpaid, and there are no eligibility criteria.

Employers must allow employees who are victims of domestic violence, sexual assault, or stalking to take job-protected, reasonable or intermittent leave from work to take care of legal or law enforcement needs or to get medical treatment, social services assistance, or mental health counseling. Family members of a victim may also take reasonable leave to help the victim obtain treatment or seek help. Family members include children, spouses, parents, parents-in-law, grandparents, or a person an employee is dating.

Employees may choose to use sick leave and other paid time off, comp time, or unpaid leave. Employees are to provide advance notice of leave, when possible.

Employers also need to consider providing safety accommodations, such as transfer, reassignment, schedule modifications, etc., unless they can demonstrate that the accommodation would impose an undue hardship on the operation of the business.

Employers may require verification from employees. This could be a police report, a court order, or documentation from a health care provider, advocate, clergy, or attorney. It could also be an employee's written statement that the employee or a family member is a victim and needs help.

Pregnancy accommodations

Employers with 15 or more employees will need to provide accommodations to pregnant employees. Such accommodations include the following:

Frequent, longer, or flexible restroom breaks*,
Modifying a “no food or drink” policy*,
Providing seating or allowing the employee to sit more frequently, and
Limiting lifting to 17 pounds.

Employers may not request certification for the above accommodations. They may, however request certification for the following accommodations:

Job restructuring, including modifying a work schedule, job reassignment, changing a workstation, or providing equipment;
Providing a temporary transfer to a less strenuous or hazardous position;
Scheduling flexibility for prenatal visits;
Providing any further accommodations the employee may need.

* You need not provide these accommodations if they impose an undue hardship.

Emergency responder leave

Employers with 20 or more full-time equivalent employees in the previous year may not discipline or terminate volunteer firefighters, reserve officers, or civil air patrol members because of leave taken related to an emergency.

Such employees are protected even if they are paid for their emergency response. They are to inform their employer of their voluntary emergency responder status.