Washington: Legislative Update
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APPLIES TO Employers with Employees in WA |
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Quick Look
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Discussion
The Washington state legislature recently expanded certain employee entitlements and attempted to clarify Washington’s Paid Family and Medical Leave Law (WFPFML). The most notable changes are summarized below.
Washington PFML Amendment
Effective January 1, 2026, HB 1213 further amended the WFPML to broaden employee protections and to address employer concerns about leave stacking.
Increased ESD Involvement. The Employment Security Department (ESD) has been tasked with conducting regular outreach to employers to provide information on premium collection, required notices, and employment protections. The ESD can also conduct periodic audits of employer files relating to the WPFML program.
Employer Size. On September 30 of each year, the ESD will average the number of employees reported by an employer on the last day of each quarter over the last four completed quarters to determine the applicability of certain requirements based on employer size.
Statement of Rights. The ESD Commissioner will develop a written statement of rights to distribute to qualified employees within five business days after the employee’s seventh consecutive day of absence due to WPFML leave or within five business days after the employer receives notice of an absence due to WPFML leave.
Required Posting. The mandatory posting requirements add the following information to be included: eligibility requirements, possible weekly benefits, application processes, employment protection rights, nondiscrimination rights, and other protections.
Grants. Employers with 50 to 150 employees can apply for grants. An approved employer can receive no more than 10 grants per year and no more than one grant for each employee. Employers with less than 50 employees can receive an additional $3,000 if they need to hire a temporary worker to replace an employee on WPFML leave for seven days or more.
Job Protection. Job protection under the WPFML received the most changes with this amendment. An employee is entitled to job protection whether or not the employee also qualifies for leave concurrent with the Family and Medical Leave Act (FMLA). The obligation to provide job protection has been lowered for employers with under 50 employees as follows:
- Employers with 25-49 employees must provide job protection effective January 1, 2026;
- Employers with 15-24 employees must provide job protection effective January 1, 2027; and
- Employers with 8-14 employees must provide job protection effective January 1, 2028.
Employees are also eligible for job protection if they begin employment with the current employer at least 180 calendar days before taking leave.
Employees also can lose their right to job protection if they fail to exercise their right, unless a written agreement says otherwise, on the earlier of the following:
- The first scheduled workday following the period of leave; or
- The first scheduled workday following a continuous period of, or combined intermittent period of, a total of 16 workweeks taken during a period of 52 consecutive calendar weeks or 18 typical workweeks where the leave was a result of a serious health condition with a pregnancy resulting in incapacity.
For a continuous period of leave exceeding two workweeks or a combined intermittent period of leave exceeding 14 workdays, the loss of job protection requires employers to provide at least five business days’ advance written notice to the employee regarding the estimated expiration date of job restoration based on information provided by the ESD and employee.
One of the biggest hurdles in administering WPFML for employers is the ability for employees to stack FMLA and WPFML leave. The amendment addresses this issue in a roundabout way through the job protection changes. An employer can count qualifying FMLA leave toward the total amount of leave entitled to job protection under the WPFML if they provide an employee with written notice of the following:
- The employer is designating and counting the employee’s unpaid leave against their FMLA entitlement and specifies the amount of the entitlement used and remaining;
- The start and end date of the employer’s designated 12-month leave year under FMLA;
- Since the employee is eligible for WPFML but is not applying for and receiving benefits, the employer is counting the unpaid leave towards the maximum periods of job protection, including specifying the start and end dates of the unpaid leave and the total amount of unpaid leave counting toward the maximum periods; and
- The use of unpaid leave counting against the maximum periods of job protection does not affect the employee’s eligibility for WPFML benefits.
The notice must be provided within five business days of the earlier of either the employee’s initial request for or use of unpaid leave protected by FMLA and at least monthly for the remainder of the employer’s designated 12-month leave year. The ESD has the right to audit compliance with job protection requirements.
Benefits Continuation. Health insurance coverage is now required during any period of leave taken under WPFML in which the employee is also entitled to job protection.
Pregnancy Accommodations
Effective January 1, 2027, SB 5217 makes Washington’s Healthy Starts Act applicable to employers of any size and adds protections for pregnant and lactating employees.
Applicability. The Act will apply to employers of one or more persons and any religious or sectarian organizations not organized for private profit.
Reasonable Accommodations. Specific potential reasonable accommodations, absent undue hardship, are defined as follows:
- Providing more frequent, longer, or flexible restroom breaks;
- Modifying a no food or drink policy;
- Job restructuring, part-time or modified work schedules, reassignment to a vacant position, or acquiring or modifying equipment, devices, or an employee’s work station;
- Providing seating or allowing the employee to sit more frequently if the employee’s job requires standing;
- Providing for temporary transfer to a less-strenuous or less-hazardous position;
- Providing assistance with manual labor and limits on lifting;
- Scheduling flexibility for prenatal visits;
- Providing reasonable break time for an employee to express breast milk for two years after the child’s birth each time the employee has need to express the milk and providing a private location, other than a bathroom, if such a location exists at the place of business or worksite, which may be used by the employee to express breast milk. If the business location does not have a space for the employee to express milk, the employer shall work with the employee to identify a convenient location and work schedule to accommodate their needs; and
- Any further pregnancy accommodation an employee may request, and to which an employer must give reasonable consideration in consultation with information provided on pregnancy accommodation by the Washington Department of Labor and Industries or the employee’s attending health care provider.
Lactation Breaks. Breaks are paid at the employee’s regular compensation rate including travel time to the location where the employee expresses milk. Employers cannot require the use of paid leave for this time.
Cares Changes
Effective January 1, 2026, SB 5291 expands the WA Cares Fund (Cares). Cares is a mandatory, publicly funded long-term care insurance program. Benefits for eligible individuals being in July 2026. The most significant expansions are summarized below.
Out-of-State Participants. Out-of-state participants that meet the eligibility requirements can elect to continue participation in the program but cannot withdraw from coverage. The ESD can cancel their coverage if the participant fails to make required payments or submit reports.
Qualified Individual. The definition of a qualified individual eligible for benefits requires payment of the long-term services and supports premiums for the equivalent of 10 years or three years within the last six years from the date of application for benefits. The 10-year requirement no longer has a component that requests payment without interruption for five or more consecutive years.
Exemption from Premium Assessment. Active-duty service members, whether or not deployed or stationed within or outside of Washington, currently engaged in off-duty civilian employment as an employee can apply for an exemption from the premium assessment.
Individuals who have an exemption because they have a permanent address outside of Washington will lose the exemption within 90 days of establishing a permanent address in Washington. Active-duty service members also lose the exemption within 90 days of discharge or separation from military service.
Temporary Worker Nonimmigrant Visa Holders. An employee who holds a nonimmigrant visa for temporary workers is exempt from the law unless they notify the employer that they would like to opt-in. A visa holder who becomes a permanent resident or citizen in Washington does become subject to the Cares law.
Exemption from Cares. An employee who attests to having long-term care insurance prior to November 1, 2021 can apply for an exemption. Before July 1, 2028, an employee who received an approved exemption can rescind the exemption and participate in the program.
Recordkeeping. Employers are required to make reports, furnish information, and collect and remit premiums to the ESD. The records of required reports must be maintained at the employer’s place of business for a period of six years. These records are not open to the public and are confidential but are subject to inspection by the ESD Commissioner.
Delinquent Payments. Employers who have delinquent premiums may be assessed interest and penalties. If the delinquent premiums are not paid within 10 days after written notice, the ESD can seize property of the employer.
Supplemental Insurance. Private insurers can offer supplemental insurance as long as they comply with the Cares law and provide coverage for at least 12 consecutive months after Cares benefits have been exhausted. If a qualified individual applies for Cares benefits and has supplemental long-term care insurance, the Department of Social and Health Services can request consent to contact the policy issuer and coordinate care.
Action Items
- Review and update paid family and medical leave policies and implement required notice.
- Update policies and procedures regarding pregnancy and lactation accommodations.
- Update payroll systems for collection of Cares premiums.
- Review and update recordkeeping and retention requirements.
- Have appropriate personnel trained on the requirements.
Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser. © 2025 ManagEase