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27 May

May 2021 Washington HR Legal Updates

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Temporary Paid Family and Medical Leave Act Changes

Update Applicable to:
Applicable to all employers in Washington State offering paid family and medical leave.

What happened?
Washington State has passed temporary amendments to its Paid Family and Medical Leave (PFML) Act, which will give employees and employers special grants related to administering this leave.

What are the details?
Employee Grant
Previously, to qualify for PFML with a serious health condition, an employee would have had to have worked 820 hours in the qualifying period. The temporary amendment makes it so that employees who would not have worked the 820 hours in the qualifying period may now consider this requirement met if:

  • They worked 820 hours in 2019; or
  • They worked 820 hours through the second quarter of 2019, to the first quarter of 2020.

An employee would be ineligible if they have worked insufficient hours in either of these two categories or if they were separated from employment due to misconduct or voluntarily unrelated to COVID-19.

The grant is equal to the normal PFML benefit.

Employer Grant
The statute currently provides grants to two categories of employers: (1) employers with 150 or fewer employees; and (2) employers with 50 or fewer employees who choose to pay the employer-side PFML premiums. If an employer hires a temporary worker to replace an employee on PFML for seven days or more, the employer may receive a grant of $3,000. If an employee’s PFML creates significant additional wage-related costs, an employer may receive a grant of up to $1,000 as reimbursement.

Both grants will expire on June 30, 2023.

What do employers need to do?
Employers should review their existing PFML practices and update their administrative side to take advantage of the additional benefits being provided by the state.


Washington Phases in New Overtime Requirements

Update Applicable to:
All agricultural employers in Washington State.

What happened?
On May 11, 2021, Senate Bill 5172 was passed, creating a new phased approach for overtime as it applies to agricultural workers.

What are the details?
In response to the recent ruling of the Washington Supreme Court, which provided that dairy workers should receive overtime as other workers do, the legislature worked together on a bill to provide a path for all other agricultural employers on how to provide overtime to their employees. Historically, Washington State had exempted agricultural work from overtime requirements.

The new law sets the following schedule:

  • From January 1, 2022 to December 31, 2022, agricultural workers must be paid time-and-a-half for any hours worked beyond 55 hours in a workweek.
  • From January 1, 2023 to December 31, 2023, agricultural workers must be paid time-and-a-half for any hours worked beyond 48 hours in a workweek.
  • Beginning January 1, 2024, agricultural workers must be paid time-and-a-half for any hours worked beyond 40 hours in a workweek.

Senate Bill 5172 can be found here.

What do employers need to do?
Agricultural employers should review their pay structures and begin making any needed adjustments to prepare for the first changes to overtime on January 1, 2022.


Washington Passes Workers’ Compensation Liability Presumption and Notice Requirements

Update Applicable to:
All employers operating in Washington State.

What happened?
On May 11, 2021, Washington State Governor Inslee signed into law SB 5115, the Health Emergency Labor Standards Act (HELSA), which expands the workers’ compensation framework for infectious and contagious diseases and imposes new notice requirements on employers.

What are the details?
The new law applies to industries with frontline workers, including:

  • First responders, such as law enforcement and paramedics;
  • Employees in food processing and distribution industries;
  • Maintenance, janitorial, and food service workers at any facility treating patients with infectious or contagious disease subject to a public health emergency;
  • Drivers and operators employed by transit agencies;
  • Childcare facility employees;
  • Retail store employees who have in-person interaction with the general public;
  • Hotel, motel, or transient accommodation employees;
  • Restaurant employees;
  • Home care aides;
  • Correctional officers;
  • Educational employees (K-12 and higher education) who have in-person interaction;
  • Public library employees; and
  • Nursing home employees.

Under a public health emergency, SB 5115 provides a “prima facie presumption” that infectious or contagious diseases transmitted through respiratory droplets, aerosols, or contact with contaminated surfaces are occupational in nature. To rebut the presumption, an employer must establish that exposure occurred during nonemployment (or other employment) activities, leave from work, or during a period of quarantine occurring immediately prior to the injury or occupational disease. The presumption provides worker’s compensation benefits, including temporary disability benefits for frontline employees who contract infectious or contagious diseases. The bill also eliminates the existing three-day waiting period before allowing employees to receive temporary disability benefits.

SB 5115 creates a new reporting requirement to the Washington State Department of Labor and Industries in the event of an outbreak. Under SB 5115, an outbreak exists during a public health emergency when an employer with more than 50 employees at a workplace or worksite has 10 or more employees at the workplace test positive for the infectious or contagious disease.

A “potential exposure” occurs when an individual at the worksite has a positive confirmed case of an infectious disease. Under SB 5115 employers must take the following actions within 24 hours of the occurrence of a “potential exposure”:

  • Provide written notice to all employees and employers of subcontracted employees who were at the worksite within the infectious period who may have been exposed to the infectious or contagious disease.
  • Provide written notice to employee representatives.

Senate Bill 5115 can be found here.

What do employers need to do?
Washington employers should review their workplace practices to ensure there will be minimal possibility of being impacted by the changes passed by SB 5115.


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