Washington PFML Amendments: Limiting Stacked Job Restoration While Preserving Paid Leave

Recent revisions to Washington’s PFMLA now restrict an employee’s ability to “stack” paid leave available under the PFMLA and unpaid leave under the Federal FMLA. This has been a confusing issue for employer and employees in instances where an employee’s situation and the employers size put them within a category in which he or she is entitled to both unpaid family medical leave under the federal FMLA and under Washingtons’ PFMLA.  This has effectively given employees the ability to extend the period of the right to job restoration well in excess of that the period contemplated by either statutory scheme, thereby placing a greater burden than intended of the employer.

The recent revision to RCW 50A.35.010 has clarified that job restoration is available to an employee who has taken ither paid medical leave under the State Act, or has taken unpaid medical leave under FMLA, but the employee does not have the ability to stack the “job restoration” right by stacking the periods available under both acts, if the employer provides notices required by the newly added language to the statute:

“The employer must provide at least five business days advance written notice to the employee, in a language understood by the employee and transmitted by a method reasonably certain to be received promptly by the employee, regarding the estimated expiration of the right of employment restoration and the date of the employee's first scheduled work day under this subsection. For combined intermittent periods of leave, the employer may estimate the expiration of the right of employment restoration based on  information provided to the employer by the department and employee.”

In order to take advantage of this modification and avoid issues posed by instances of stacking multiple periods of the right to “job restoration” the mellower must provide notice to employees subject to the following requirements:   (1) That the employer is designating and counting the employee's  unpaid leave against the employee's entitlement under the federal  family and medical leave act of 1993   including specifying the amount of the entitlement used and remaining, as estimated by the employer based on information provided by the department and employe; (2) the start and end dates of the employer's designated 12-29 month leave year under the federal family and medical leave act; (3) informing the employee that since the employee is eligible for paid family or medical  leave under this title but is not applying for and receiving benefits, that the employer is counting the unpaid leave towards the maximum periods relating to the “job restoration” right under PFMLA ; and (4) notifying the employee that while  their the use of unpaid leave counts against the period of job restoration under the PFMLA, it does not affect employee's eligibility for paid family or medical leave benefits under this title.

In other words, by following this notice requirement, and including the required information, the employer can avoid an excessive and unexpected period where the job restoration requirement is in effect, while still allowing the employee to receive the benefits of the paid leave.  This allows the employee to enjoy the full period of protected leave regardless of whether it is taken as unpaid or paid without risking forfeiture of the benefits of the paid leave program offered by Washington State. See RCW 50A.35.010, et. seq. as amended by Engrossed Second Substitute House Bill 1213 Chapter 304, Laws of 2025