Legal Update

Washington State Family Leave Act In Line With The Feds

By Beth Van Moppes, July 2006

Effective June 7, 2006, the legislature amended our state Family Care Act so that it is more closely aligned with the federal Family and Medical Leave Act ("FMLA"). 

On the employer-side, these changes reduce the minimum employee threshold from 100 to 50 employees.  From the employee's perspective, a qualifying employee now need only work 1,250 hours in the past 12 months as compared to the previously required 1,820.  If these threshold criteria are met, an employee is entitled to 12 weeks unpaid leave to care for (a) a newborn or newly adopted or foster child, (b) to recover from the employee's own serious health condition, or (c) to care for a child, spouse, or parent with a serious health condition.    

Additionally, the legislature clarified what we have long suspected, that under the Washington state statute, women are entitled to their 12 weeks unpaid FMLA leave in addition to any period of disability due to pregnancy or childbirth. 

An important little distinction to note is that, while neither Washington State nor federal law requires that employers pay employees who are out on such leave, the Washington State Family Care Act does allow workers who have available paid sick leave, or other accrued paid time off, to use that paid leave to care for a sick child with even a routine illness, a spouse, a parent, parent-in-law, or grandparent with a serious or emergency health condition, or an adult child with a disability.

Additionally, and always, employers must remember that the Washington Law Against Discrimination mandates reasonable accommodation of all employees with disabilities.  As a result, obligations under the WLAD should always be carefully considered when assessing any disability-related leave. 

Action Steps: Washington employers, including employers based in other states but with facilities in Washington, must review and revise their policies and practices regarding medical leave. Employers should also consider providing additional training in this area, to familiarize managers with the coverage of the new law.

These materials are for informational purposes only.

Washington Law Amended to Add Sexual Orientation

By Beth Van Moppes, April 2006

The Washington State Legislature has amended Washington’s Law against Discrimination (WLAD), adding sexual orientation to the list of prohibited categories of discrimination in housing and employment. Gov. Christine Gregoire signed House Bill 2661, Jan. 31. The amendment will became effective 90 days thereafter, on May 1, 2006.

The law defines “sexual orientation” to include “heterosexuality, homosexuality, bisexuality, and gender expression or identity.”

“Gender expression or identity” is in turn defined as “having or being perceived as having a gender identity, self-image, appearance, behavior, or expression, whether or not that gender identity, self-image, appearance, behavior, or expression is different from that traditionally associated with the sex assigned to that person at birth.”

This term, “gender expression and identity,” will certainly be the subject of future litigation. Prudence suggests it should be given a broad reading to include others, such as, for example, transsexuals. The new statute expressly does not address state marriage laws or issues such as same-sex marriage or civil unions.

Washington joins California and Oregon in its inclusion of sexual orientation as a protected class. A number of Washington cities and counties already had ordinances in place prohibiting discrimination on the basis of sexual orientation, including the cities of Seattle, Tacoma, and Spokane, and the counties of King, Snohomish and Pierce. None of these local jurisdictions, however, had established protections for “gender expression or identity” such as the amendment to the WLAD. This is a far broader category than had previously existed in any Washington jurisdiction.

It will be interesting to monitor how Washington will proceed in its application and interpretation of existing and potential future regulations as they related with the rights of domestic partners and sexual orientation protection.

Action Steps: Washington employers, including employers based in other states but with facilities in Washington, must review and revise their policies and practices, in particular their antidiscrimination and anti-harassment policies and practices, to bar discrimination on the basis of sexual orientation, including gender expression and identity. Employers should also consider providing additional training in this area, to familiarize all employees with the coverage of the new law.

These materials are for informational purposes only.