PFMLA versus FMLA: The Protections and How they Differ
The Voter ratified Paid Family Medical Leave Act came online in 2020 and for the first time provided a paid family leave program to all eligible Washington employees. This was in addition to right to take leave under the FMLA, a Federal program, that does not make payments to employees. This article compares the protections provided under Washington’s PFMLA and under the FMLA and hightlights a number of clear differences.
Under Washington’s Paid Family and Medical Leave (PFML) program, job restoration is a key protection for eligible employees. Here are the main protections, under the PFMLA with some limitations and conditions.
Eligibility for Job Restoration:
Employer Size: The employer must have at least 50 employees.
Employment Duration: The employee must have worked for the employer for at least 12 months.
Job Restoration Rights:
Employers are prohibited from retaliating against employees for taking PFML. This includes actions like demotion, reduction in hours, or adverse changes in terms and conditions of employment2.
Exceptions to Coverage Under PFMLA
Key Employees: Certain highly compensated employees may have limited job restoration rights.
Layoffs: If the employee’s position would have been eliminated regardless of the leave (e.g., due to layoffs), job restoration may not be required1.
Interplay, Concurrence and Key Differences Between PFMLA and FMLA
Concurrent Leave:
If an employee qualifies for both PFML and FMLA for the same condition, the leaves can run concurrently. This means the time taken off under PFML can also count against the 12 weeks of FMLA leave1.
Separate Entitlements:
PFML provides paid leave, while FMLA provides unpaid leave. Using FMLA does not reduce the PFML benefit, so employees can potentially use both types of leave for different qualifying events2.
Application Process:
For FMLA, employees interact directly with their employers to determine eligibility. For PFML, employees apply directly to the Washington Employment Security Department (ESD), which administers the program and determines eligibility3.
Eligibility Criteria:
Both programs have different eligibility requirements. For example, FMLA requires employees to have worked for their employer for at least 12 months and for at least 1,250 hours in the past year. PFML has different criteria, such as working 820 hours in the qualifying period4.
Job Protection:
Both PFML and FMLA provide job protection, but the specifics can vary. Under FMLA, employees are entitled to return to the same or an equivalent position. PFML also offers job protection, but only if the employer has 50 or more employees and other conditions are met4.
The protections under Washington’s Paid Family Medical Leave Act are found at 50A.35.010, which is excerpted below in its entirety.
Employment protection
(1) Except as provided in RCW 50A.30.010(5) and subsection (6) of this section, any employee who takes family or medical leave under this title is entitled, on return from the leave:
(a) To be restored by the employer to the position of employment held by the employee when the leave commenced; or
(b) To be restored by the employer to an equivalent position with equivalent employment benefits, pay, and other terms and conditions of employment.
(2) The taking of leave under this title may not result in the loss of any employment benefits accrued before the date on which the leave commenced.
(3) Nothing in this section shall be construed to entitle any restored employee to:
(a) The accrual of any seniority or employment benefits during any period of leave; or
(b) Any right, benefit, or position of employment other than any right, benefit, or position to which the employee would have been entitled had the employee not taken the leave.
(4) As a condition of restoration under subsection (1) of this section for an employee who has taken medical leave, the employer may have a uniformly applied practice or policy that requires each such employee to receive certification from the employee's health care provider that the employee is able to resume work.
(5) Nothing in this section shall be construed to prohibit an employer from requiring an employee on leave to report periodically to the employer on the status and intention of the employee to return to work.
(6)(a) This section does not apply unless the employee: (i) Works for an employer with fifty or more employees; (ii) has been employed by the current employer for twelve months or more; and (iii) has worked for the current employer for at least one thousand two hundred fifty hours during the twelve months immediately preceding the date on which leave will commence. For the purposes of this subsection, an employer shall be considered to employ fifty or more employees if the employer employs fifty or more employees for each working day during each of twenty or more calendar workweeks in the current or preceding calendar year.
(b) An employer may deny restoration under this section to any salaried employee who is among the highest paid ten percent of the employees employed by the employer within seventy-five miles of the facility at which the employee is employed if:
(i) Denial is necessary to prevent substantial and grievous economic injury to the operations of the employer;
(ii) The employer notifies the employee of the intent of the employer to deny restoration on such basis at the time the employer determines that the injury would occur; and
(iii) The leave has commenced and the employee elects not to return to employment after receiving the notice.
(a) To be restored by the employer to the position of employment held by the employee when the leave commenced; or (b) To be restored by the employer to an equivalent position with equivalent employment benefits, pay, and other terms and conditions of employment