Washington State’s Paid Sick and Safe Leave Update: The Administrative Regulations Are Finally Final

Washington’s Department of Labor and Industries has now concluded its process for drafting and finalizing the regulations for implementing Washington’s paid sick leave law, which becomes effective on January 1, 2018. Now employers can finish drafting legally compliant paid sick leave policies. The complementary enforcement regulations are still a work in progress and are not expected to be finalized until at least mid-December 2017.

Background

Washington voters approved Initiative 1433 (I-1433) in November of 2016, which increased the state minimum wage and created paid sick and safe leave for nonexempt Washington employees. Following its passage, the Department began drafting regulations which have been through multiple drafts, comment periods, and public hearings.

Current Status

The Department recently finalized the regulations to implement Washington’s paid sick leave law. This article discusses the key requirements for drafting and implementing legally compliant policies. The basis of these requirements can be found in statute (RCW 49.46.200 and 210) and regulations (WAC 296-128-600 through 760).

Requirement	Details
Employers	All Washington employers must provide paid sick leave.
Employees	I-1433 requires every employer to have a policy permitting nonexempt employees to accrue paid sick leave. Employers are not required to offer paid sick leave to exempt employees.
Accrual	“An employee shall accrue at least one hour of paid sick leave for every forty hours worked as an employee.” Employees do not accrue paid leave for any hours other than hours worked (i.e., no accrual occurs while on vacation, paid sick leave, etc.).
Accrual Caps	Accrual caps are prohibited. Employees must accrue 1 hour of paid leave for every 40 hours worked.
Usage	Employee. An employee is authorized to use paid sick leave for an absence resulting from the employee’s mental or physical illness, injury, or health condition; for the employee’s need for medical diagnosis, care, or treatment of a mental or physical illness, injury, or health condition; or for an employee’s need for preventive medical care. Family member. An employee may use paid sick leave to provide care for a family member with a mental or physical illness, injury, or health condition; to care for a family member who needs medical diagnosis, care, or treatment of a mental or physical illness, injury, or health condition; or to care for a family member who needs preventive medical care. Business or Place of Care Closure. Paid sick leave may be used 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. Domestic violence leave act. Paid sick leave may be used for absences that qualify for leave under Washington’s domestic violence leave act.
Family Members	“Family member” means 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 parent, including 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; a spouse; a registered domestic partner; a grandparent; a grandchild; or a sibling.
Collective Bargaining Agreements	Employers with collective bargaining units are not exempt from the requirement to provide paid sick leave, and a collective bargaining agreement may not waive the requirements of the paid sick leave law.
Waiting Periods	Although employees must begin accruing paid sick leave immediately upon commencement of employment, an employer may prohibit usage of paid sick leave until the employee has been employed for 90 calendar days.
Verification	Employers may only request verification for absences exceeding three days. Any verification requirements must be in a written policy.
Frontloading	Employers are permitted to frontload paid sick leave. Employers that frontload paid sick leave must ensure that the employee accrues all paid sick leave required and must comply with the carryover requirements.
Carryover	Employers must permit employees to carry over at least 40 hours of paid sick leave.
Notice of Need to Use Paid Sick Leave	Employers may require employees to give reasonable notice of absences from work for authorized reasons. If foreseeable, the employer may require advance notice of at least 10 days before use of leave, or as early as practicable. If unforeseeable, an employer may require notice as soon as possible before the required start of an employee’s shift, unless it is not practicable to do so. Any notice requirements must be in a written policy or collective bargaining agreement.
Notice to the Employee	Employers must notify employees of their entitlement to paid sick leave, the rate of accrual, authorized purposes of use, and of the fact that retaliation is prohibited. Notice should be made in writing or electronically, and must be made at the commencement of employment for employees hired after January 1, 2018. Employers must provide at least monthly notice to employees of the amount of paid sick leave they have accrued, reductions since the last notification, and the amount of unused paid sick leave available.
Paid Time Off	Employers may use a combined paid time off (PTO) policy in lieu of a separate paid sick leave policy. The PTO policy must comply with all of the other requirements of the paid sick leave law.
Rate of Pay	For each hour of paid sick leave used, an employer must pay an employee the minimum wage rate or the employee’s normal hourly compensation, whichever is higher.
Retaliation	Employers may not retaliate against employees for exercising their rights under the applicable statutes, including the right to use paid sick leave. Employers must inform employees in writing of the prohibition on retaliation.
Records	Employers must retain records on at least a monthly basis of paid sick leave accruals, the amount of paid sick leave available for use by an employee, and paid sick leave reductions.
Reinstatement	Employers must reinstate accrued unused paid sick leave for employees who leave and are rehired within 12 months. If reinstatement happens in a new benefit year, an employer may limit the reinstated paid sick leave based on its carryover requirements. If an employer pays out accrued, unused paid sick leave upon separation, the employer does not have to reinstate any leave upon reinstatement.
Payout at Separation	Employers are not required to pay out accrued, unused paid sick leave.

The regulations required to implement paid sick leave policies are complex and involved. Drafting and implementing a paid sick leave policy is a unique endeavor for every employer and particularly complex for multistate employers that have to comply with these requirements and other state or local laws. Additional complexities arise for employers operating in municipalities requiring paid sick leave, including the cities of SeaTac, Seattle, and Tacoma. PTO requirements may also compel additional changes in practice for employers to avoid an entire PTO allotment’s becoming protected leave subject to the paid sick leave law.

As the paid sick leave law and implementing regulations contain a number of nuances, employers should exercise great care in developing legally compliant Washington State paid sick leave policies.

For an in-depth discussion of Washington State’s paid sick leave law, as well as other recent enactments pertaining to Washington’s minimum wage, paid family and medical leave rules, and employer obligations to accommodate pregnant employees, join us for our upcoming webinar, “Paid Sick Leave, the Healthy Starts Act, and More: Washington State Employment Law Update,” featuring Adam T. Pankratz (shareholder, Seattle) and Sonja D. Fritts (of counsel, Seattle) on Tuesday, November 7, 2017, at 11 a.m. Pacific.

Further information on Washington State’s paid sick leave law is available through Ogletree Deakins’ OD Comply: State Leave Laws, a subscription-based product compiling state leave requirements with a concise guide to compliance in all 50 states and the District of Columbia. OD Comply: State Leave Laws is updated and provided to OD Comply subscribers as the law changes.

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