WASHINGTON STATE'S NEW PAID SICK LEAVE LAW

By:  Katherine F. Weber

In November 2016, Washington voters approved Initiative 1433, which in significant part established a new mandate that all Washington employers, regardless of their size, provide their employees paid sick leave as of January 1, 2018.

Employers who do not currently offer paid sick leave should consider developing and adopting a written sick leave policy that meets at least the minimum requirements of the new sick leave law.  Employers who currently do offer paid sick leave would still be well-served to revisit their existing sick leave policy, even if such policy offers more sick leave than that which will be required, to ensure compliance with the new law-- the regulations recently adopted by the Department of Labor & Industries (L&I) to explain and implement the new law include broad provisions that will likely impact most employers’ sick leave policies in some way.

Following is a summary of the major points of the new law and the recently-adopted L&I regulations:

Definition of Employee:  The new law incorporates the Washington Minimum Wage Act’s definition of “employee,” which definition does not distinguish between “regular” and “temporary” employees or “full-time” and “part-time” employees.  The practical effect of this is that an employer may no longer reserve sick leave benefits for only regular full-time employees; rather it must offer all employees, including part-time and temporary employees, at least the minimum sick leave required by law.

Sick Leave Accrual:  Employees must accrue at least one hour of paid sick leave for every 40 hours worked by them.  Under a standard work year of 2080 hours, this translates to 52 hours (or 6.5 days).  However, there is no cap on sick leave accrual, which means that an employer must also include overtime hours worked by the employee in calculating the employee’s accrued sick leave.  Employees begin accruing sick leave immediately upon their hire; however, employers may impose a waiting period of up to 90 days before its employees may begin using their accrued sick leave.  Alternatively, an employer may elect to “frontload” sick leave (rather than calculating the hours as the employee accrues them) as long as this practice meets or exceeds the statute’s requirements.

Use of Accrued Sick Leave:  Employees may use accrued sick leave for any of the following reasons:

• The employee’s mental or physical illness, injury or health condition; to accommodate the employee’s need for medical diagnosis, care or treatment of a mental or physical illness, injury or health condition; or an employee’s need for preventative medical care;

• To allow the employee to provide care for a family member with a mental or physical illness, injury or health condition; care of a family member who needs medical diagnosis, care or treatment of a mental or physical illness, injury or health condition; or care for a family member who needs preventative medical care;

• When the employee’s place of business has been closed by order of a public official for any health-related reason, or when an employee’s child’s school or place of care has been closed for such a reason; and

• For absences that qualify for leave under the Washington Domestic Violence Leave Act, Chapter 49.76 RCW.

The new law defines “family member” to include any of the following:  a child, including a biological, adopted or foster child, stepchild or a child to whom the employee stands in loco parentis, is a legal guardian or is a de facto parent, regardless of age or dependency status; a biological, adoptive, de facto or foster parent, stepparent or legal guardian of an employee or the employee’s spouse or registered domestic partner, or a person who stood in loco parentis when the employee was a minor child; spouse or registered domestic partner; grandparent; grandchild; and sibling.[1]

Sick Leave Increments:  An employer must allow its employees to use paid sick leave in increments consistent with the employer’s payroll system and practices, not to exceed one hour.  In other words, if an employer tracks employee time on a quarterly basis (i.e., in 15-minute increments) it must allow the employee to use sick leave in the same 15-minute increments, unless the employer otherwise obtains a variance from the Department of L&I for “good cause.”  “Good cause” means situation in which an employer can establish that compliance with the increment requirement is infeasible and that granting a variance does not have a significant harmful effect on the health, safety and welfare of the involved employees.  The process for applying for such a variance is set forth in WAC 296-128-640.

Notice Requirements:  Employers may require employees to provide “reasonable notice” of an absence for which sick leave is to be used.  If the need for sick leave is foreseeable, the employer may require at least 10 days’ notice; if the need is not foreseeable, the employer may require that employees provide notice as soon as possible before the start of their shift, unless it is not practicable to do so.  Any such notice requirements must be outlined in a written policy or collective bargaining agreement.

Verification of Sick Leave:  Employers may require verification that an employee’s use of paid sick leave is for an authorized purpose only in cases where the absence exceeds three consecutive work days (and only where the employer has a written policy or collective bargaining agreement outlining such requirement).  Employers should note that the new law does not appear to permit an employer to require a doctor’s note in cases of suspected sick leave abuse, unless the leave exceeds three consecutive work days.  Additionally, the employer’s requirement may not create an “unreasonable burden or expense” for the employee.  Employees may object to a verification requirement and provide a verbal or written explanation as to how the verification requirement creates an unreasonable burden or expense for the employee, in which case the employer must consider the employee’s explanation and, within 10 calendar days, make a “reasonable effort to identify and provide alternatives for the employee to meet the employer’s verification requirement in a manner which does not result in an unreasonable burden or expense for the employee.”  WAC 296-128-660 explains how the employer might accomplish this, along with a “dispute resolution” process in cases where the employer and employee are unable to reach agreement as to whether the verification requirement results in an unreasonable burden or expense for the employee.

“Adverse Action” Prohibited:  An employer may not “interfere with, restrain or deny” its employees their right to use sick leave as set forth in the new law.  An employer is further prohibited from taking “adverse action” against an employee—including disciplining or terminating an employee, denying the use of sick leave, reducing the employee’s hours or pay, etc.-- for the employee’s use of paid sick leave.  Towards this end, employers may not have a policy that counts the use of paid sick leave as an absence that may lead to discipline.  Accordingly, “no fault” attendance policies must exclude absences covered by paid sick leave. 

Notice to Employees:  An employer must notify each of its employee in writing of the employee’s entitlement to paid sick leave, the accrual rate of such sick leave, the authorized purposes for which sick leave may be used and that retaliation for the employee’s lawful use of sick leave is prohibited.  Such notice must be provided to employees hired on or after January 1, 2018 no later than the commencement of their employment; employees hired prior to January 1, 2018 must receive this notice no later than March 1, 2018. 

Thereafter, an employer must provide to each of its employees at least monthly written or electronic statements detailing the amount of sick leave accrued to the employee, the amount of sick leave used by the employee, and the amount of any accrued and unused sick leave available to the employee.  This notice requirement may be satisfied by including such information on the employee’s regular payroll statements.

Separation of Employment:  Employers are not required to cash out accrued sick leave upon an employee’s separation of employment; however, if the employer rehires a separated employee within 12 months of the separation date, the employer must reinstate the employee’s previous leave balance, if not previously cashed out 100% at the time of separation.  Upon reinstatement, the employee is not required to wait another 90 days before becoming eligible to use paid sick leave.

PTO Policies:  Employers who offer “Paid Time Off” (PTO) instead of sick leave may continue to do so, so long as their PTO policies meet all of the requirements of the new sick leave law. 

Employers whose sick leave policies are more generous than that required by the law should generally be aware that the requirements of the new sick leave law (including the verification restrictions and “adverse action” prohibitions) will apply to all of the employee’s paid sick leave—not just the minimum sick leave accruals mandated by the new law.  As a result, some employers may wish to consider segregating sick leave from their general PTO policies and/or decreasing their sick leave accruals and instead increasing the amount of vacation or PTO leave offered.

Employers are encouraged to consult with legal counsel regarding how the new sick leave law impacts their particular policies, practices and operations, and to take any necessary measures to address these impacts and to comply with the new law as of January 1, 2018.

This publication is intended to generally inform our clients of recent legal developments.  It is not intended, and should not be relied upon, as a substitute for specific legal advice, and it does not create an attorney-client relationship.  Please contact legal counsel to further discuss any particular situation(s) or question(s) that you might have.