PFML: State Nuances You Need to Know

January 25, 2021
Two fathers with their daughter

As more states pass PFML legislation, employers may want to come up with one blanket policy that covers all employees. That could lead to headaches and compliance risks because each program has its own nuances. From eligibility and benefits to funding and family members — the differences probably outweigh the similarities.

So just because you have a policy that’s compliant with California or New York, don’t count on it working for newer PFML programs. For example, New York’s PFL benefits ramped up over four years and will provide 12 weeks in 2021. Washington state’s program began with 12 weeks of PFL in 2020 and offers up to 16 weeks combined family and medical leave. Massachusetts will follow with even more generous benefits in 2021 — with up to 26 total weeks of PFML.

Starting in 2022, Connecticut will offer 12 weeks of PFML. Oregon will follow with similar paid leave in 2023, but with the broadest eligibility to date. And no one knows what’s next. So buckle your seatbelts. Getting up to speed on all the different programs may be a bumpy ride. But knowing what to watch for will help.

First, Some Similarities Across States

On the plus side, most state PFML requirements mirror parts of the federal Family Medical Leave Act. In Washington, Massachusetts, and Oregon, PFML must run concurrently with leave that qualifies under the FMLA.

Funding also takes a similar approach in those three states. Contributions are split between employers and employees, although percentages differ. In contrast, Connecticut will fund its program through employee-only payroll tax contributions, starting Jan. 1, 2021.

What about job protection? All four states provide for job protection and restoration following a period of approved PFML. But in Washington, that protection applies only to employees who work for an employer with 50 or more employees. In another twist, Washington has different job protection rules under voluntary plans.

All four states will also allow intermittent leave for PFML. But each program has its own rules for the minimum increment of leave employees may take.

Are private plans allowed? Yes, subject to state approval. Connecticut also requires approval by a majority of the employer’s employees. Connecticut employers who opt out of the state program can provide a fully insured or self-insured private plan. Washington only allows private ASO or ATP plans, while Massachusetts allows ASO, ATP and fully insured plans. Oregon’s requirements are still being determined. In general, private plans must be equal to the state-run plan.

Next, Some Subtle Differences

It’s all about the details. And even employers who operate in only one state need to pay attention. Different rules could apply to employees who commute across state lines.

Who’s a family member? The definition has become broader as more states pass legislation. For example, all these states include a foster child in the definition of “son or daughter.” But Oregon also includes “a foster child of a covered individual’s spouse or domestic partner.” Washington’s program considers a child’s spouse to be a family member.

And Connecticut and Oregon’s definitions go further. They include anyone related to the employee by blood or affinity whose close association with a covered individual equals a family relationship.

Covered employers — private or public? Oregon’s PFML mandate is simple. It will apply to all employers with one or more employees. Washington’s program is almost as broad. It applies to all employers, except the federal government and federally recognized tribes.

Connecticut's rules apply to private employees with one or more employees. State and municipal employers, as well as regional boards of education are also covered employers. Meanwhile, in neighboring Massachusetts, the PFML program will cover “all employers with Massachusetts W-2 employees who contribute to the state unemployment fund.”

Are most employees eligible? Oregon has the most inclusive definition. All employees who have earned $1,000 or more with the employer during the four consecutive quarters before taking leave are eligible. Washington bases eligibility on hours, requiring 820 hours worked in the prior four of the last five quarters.

Connecticut raises the earnings threshold to $2,325. And Massachusetts narrows eligibility to only include W-2 employees who make up more than 50% of their employer’s workforce. It also excludes several categories of workers, such as agricultural.

Is PFML dependent on employment? Not necessarily. Despite some state restrictions in Massachusetts and Washington, PFML availability is not dependent on who you’re employed by. If you change jobs or become unemployed, PFML may still be available to you. Connecticut requires employment to be current or within the previous 12 weeks.

What about benefits? The reasons employees may take paid leave are similar across states. They include one's own serious health condition, birth or placement of a new child, caring for a family member with a serious health condition and military necessity or care.

Two differences stand out. Connecticut and Oregon both offer “safe leave” for victims of domestic violence. Connecticut also provides paid leave for serving as a bone marrow or organ donor.

The chart below shows how much paid family and medical leave is or will be available to employees. You’ll see that no two states are alike.

 

StateWashingtonMassachusettsConnecticutOregon
Benefits StartJan. 1, 2020Jan. 1, 2021Jan. 1, 2022Jan. 1, 2023

Benefit Period

Own Illness

Family Leave

Own Illness: 12 weeks; 14 weeks if serious health condition with pregnancy

Family: 12 weeks

Family + Medical combined: 16 weeks; 18 weeks for serious health condition with pregnancy and incapacity

Combined Own Illness and Paid Family Leave: up to 26 total weeks in a benefit year

Own Serious Illness: 20 weeks

Family/Birth/Placement: 12 weeks

Care of Service Member: 26 weeks

Up to 12 weeks paid leave

Up to 14 weeks for serious health condition with pregnancy and incapacity

Up to 12 weeks paid leave, with total paid and unpaid leave capped at 16 weeks

Up to 18 weeks for complications due to pregnancy or childbirth

Benefit Amount

Maximum: $1,000 weekly

Up to 90% of employee's gross weekly wages — between $100 to $1,000 per week

Maximum: $850 weekly

Adjusted yearly to match 64% of state average weekly wage

Maximum: $850 weekly

95% of base weekly earnings, up to 40 times the minimum fair wage

100% of wages up to 65% of the state average weekly wage ($1,093.41 as of July 1, 2020)

 

Want to explore more nuances? Visit our interactive U.S. map to get details on PFML programs and legislation for every state. And sign up to receive email alerts about newly posted content.

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Categories: 
PFL Administration / Leave Law Interactions / Legislative Activity / Massachusetts / Washington