When voters in Washington State voted into existence a new minimum wage and sick leave law on November 9, 2016, they may not have realized the new law would fail to create a uniform sick leave across the state. Currently, Tacoma, Seattle, SeaTac, and Spokane already have paid sick leave laws in place.
Each law has its own unique sets of requirements, which creates a confusing maze of compliance and regulations that employers must abide by. The purpose of this article is to review the requirements and main aspects of the Washington Sick Leave Law and to highlight the main differences between state and local ordinances regarding sick leave.
Important Dates for Compliance
The increased minimum wage law started on January 1, 2017. The Washington State Paid Sick Leave starts on January 1, 2018. On that date, all employees in Washington will start earning sick leave at the rate of 1 hour for every 40 hours worked.
Minimum Wage Timeline
Minimum wage is set to increase every year. The set schedule for minimum wage is defined below until 2020. On 2021 and afterward, the Labor & Industries Department will determine the new minimum wage based on inflation.
|January 1, 2017||$11.00|
|January 1, 2018||$11.50|
|January 1, 2019||$12.00|
|January 1, 2020||$13.50|
|January 1, 2021||TBD by the Labor & Industries Department|
Covered Employees under Paid Sick Leave
Updated November 7, 2017: The final rules for the Washington Sick Leave Law identify what employees are covered. All employees covered by the Washington Minimum Wage Law are covered under the Washington Sick Leave Law.
That means that even agricultural jobs are covered. Any employer with even one covered employee working in Washington must provide the mandatory sick leave. Full time, part-time, temporary, and seasonal employees are all covered as well.
Exclusions to Earned Sick & Safe Time
Employers are not required to offer paid sick leave to exempt employees. This includes white collar employees, outside salespersons, and others. This is very different from the sick leave laws Seattle.
In another twist, unionized construction employees do not have the right to opt out of the sick leave law through a collective bargaining agreement. Thus union employees who have opted out of the local city ordinances mandating sick leave will still have to provide sick leave in compliance with the state’s law.
Other laws have excluded collective bargaining agreements as some larger unions have heavily sponsored sick leave laws for non-union employers.
Allowable Uses for Sick Leave
Washington State Sick leave uses closely mirror the local city ordinances found within the state. The main difference is that Washington State Paid Sick Leave Law does not allow for bereavement due to the death of a family member. This is different than Tacoma, and Spokane. Employees will be allowed to use sick leave for themselves or for a family member who has the allowed reasons for sick leave use.
That includes leave for an illness, injury or health condition. It can be either a physical or mental health condition and can be for diagnosis or preventative care. The second reason is if the employee’s business or child’s school or place or care is closed by a public official due to a health condition.
Additionally, employees who are victims of domestic violence are allowed to use sick leave for reasons allowed by the Washington State Domestic Violence Laws.
- Illness, Injury, or Health Condition: Mental or Physical: To seek a diagnosis or for preventive care.
- If the place of business, spouses place of business, child’s school, or child’s place of care has been closed due to an order from a public health official for health reasons.
- For reasons under the Domestic Violence Law.
- For the employee’s need or the Employee’s family member’s need
Washington Domestic Violence Law
The Domestic Violence Law provides for a protected leave for victims of domestic violence. The law protects the employee’s rights to return to work, to have a reduced work schedule, or to an intermittent leave. It does not provide paid leave.
However, with the implementation of the Sick Leave law, employees could use their accrued paid sick leave for all the reasons allowed in the Domestic Violence Law. The domestic violence law includes domestic violence, sexual assault, and stalking.
- To seek legal or law enforcement assistance or remedies to ensure the health and safety of the employee or family member.
- Including preparing for, participation in any civil or criminal proceeding resulting from domestic violence, stalking or sexual assault.
- To seek treatment for any physical or mental injuries caused by domestic violence, sexual assault or stalking.
- To obtain counseling
- Participate in safety planning, temporary or permanent relocation, or to take other actions to ensure the safety of the victim.
Family Member Definitions
Washington defines the allowable family member relationships. The state recognizes all biological, adopted, foster, step, legal wards, in loco parentis, and de facto parent. This is regardless of the age of the child. These relationships are for both parents and children.
This is different from some local ordinances, which allow for child relationships only if the child is under 18 yrs old. Relationships that are included in the law include child, parent, spouse, registered domestic partner, grandparent, grandchild, and sibling. Some of the local ordinances, including Tacoma, have broader relationships definitions under the household relationship definitions.
- Registered Domestic Partner.
Accrual of Safe and Sick Time
Sick leave is accrued at the rate of 1 hour for every 40 hours worked. The current initiative is silent on whether or not overtime pay counts toward the accrual of sick leave hours.
Some of the local ordinances in the state assume a 40-hour workweek for exempt employees while accruing sick leave for non-exempt employees who work overtime. Additionally, there is no current cap in place for the amount of sick leave awarded to an employee during the year.
The only cap that exists is the roll-over cap for unused, accrued sick leave. The final rules provide that all unused sick leave of 40 hours or less must be rolled over to the following year.
Sick Leave Bank and Minimum Usage
When an employee leaves an employer and reinstates with the employer within 12 months, all previously accrued and unused sick leave has to be reinstated to the employee. The only time that the employer does not have to reinstate previously earned sick leave is when the employee was paid out sick leave at their full hourly rate.
Additionally, the employee’s previous time of employment must be counted toward determining the eligibility of the employee for sick leave.
Although employees start accruing sick leave on the first date of employment, or January 1, 2018, whichever is last, employees have a 90 day waiting period after commencing employment before they can start using accrued sick leave.
Although the Initiative for Washington’s Sick Leave Laws does allow for front loading to satisfy the sick leave requirement, the initiative is silent on the required number of hours that must be satisfied. Even the final rules state that employers who front load sick leave “must ensure that such front-loading paid sick leave complies with the provisions” of the law.
Employers who front load sick leave must ensure that, if an employee would have earned more sick leave than was front-loaded, the employee is awarded additional sick leave within 30 days.
Additionally, employees who use sick leave that has been front loaded and would not have been earned, cannot be required to pay the employer back for those unearned sick days. Employers can never require employees to pay back sick leave that has been used.
If the law continues without the Labor & Industries department placing a definition on those caps, then a full-time employee could be expected to earn 6.5 days of sick leave a year. That is a far more generous amount than any of Washington’s Individual City’s ordinances and more generous than its neighboring states that have sick leave laws such as Oregon and California.
Employees can roll unused sick leave to the following year. However, employers can limit the amount of carrying over hours to 40 hours.
Coordinating with Paid Time Off Policies
The Washington Sick Leave Law allows for more other Paid Time Off Policies (PTO) that meet or exceed the state requirements count toward sick leave requirements. PTO policies can be used as long as the employees can use the time off for all the reasons in the sick leave law.
Reasonable Documentation and Notification of Sick Leave Usage
Employees should give reasonable notice for sick leave. Washington’s final rules allow employers to require up to 10 days of notice for sick leave usage or as early as is reasonable for the employees to give notice. Employer notice requirements must be given to the employee in writing or in a collective bargaining agreement.
If the employee uses more than 3 consecutive days of sick leave, the employer can require documentation that sick leave was used for the reasons allowed under the law. The verification cannot cause an unreasonable expense to the employee and must be provided by the employee within a reasonable time.
The law doesn’t define the types of acceptable documentation but does specify that employers are required to keep it confidential and that the documentation required can’t exceed privacy verification methods provided by law. If an employer plans to require documentation for sick leave use, they must provide notice of that policy in writing to employees.
The law is silent around whether or not employers can require documentation when sick leave abuse is suspected and the employee has a pattern of sick leave abuse. This is also different from the Seattle ordinance.
Employers are prohibited from retaliating against any employee who uses or attempts to exert their rights under the law. Sick leave absences cannot result in disciplinary action of any kind.
Fines and Remedies provided by the Sick Leave Law
The final penalties, fines, and redress to be made by businesses who violate the law are still being determined.
Notification of Sick Leave Rights and Records
Employers must notify employees of their rights to sick leave. Notification must include the rate of accrual, the authorized purposes of use, and the fact that retaliation is prohibited. Employers can notify employees in writing or through an electronic notice such as an Employee Self Service Portal. Existing employees must be notified by March 1, 2018.
Employers who fail to keep records will be deemed to have violated the law. The law requires that employers maintain records on at least a monthly basis. Records must include the accrual of sick leave hours, the use of sick leave hours. It must also include sick leave reductions. Employers must provide employees with that information monthly.
Washington employment law already requires that employers maintain payroll records that include the employee’s personal information, time cards, straight time earnings, overtime earnings, and other detailed payroll information. Now employers must also maintain a record of the employee’s start date of employment and the carryover of sick leave hours from one year to the next.
However, the initiative doesn’t define the retention period or specific requirements for employers. Typically, other cities and states have required a 3 or 4 year retention period. The Labor & Industries department will determine the retention period during 2017.
Let SwipeClock Help
Businesses who have employees in Seattle, Tacoma or Sea Tac and a growing list of other cities may have to comply with multiple conflicting City ordinances defining Sick leave accrual and usage laws. Additionally, these businesses have to also comply with Federal Overtime Laws, the Family Leave Medical Act and any other national or local laws that are enacted.
SwipeClock provides a comprehensive array of workforce management and time tracking tools that can help businesses to more easily stay in compliance with local and national laws. Records are effortlessly kept for years and accrual is automatically tracked and reported to employees according to the state and city laws. Additionally, with GEO timekeeping clocks, businesses can effortlessly track time worked in specific cities to ensure compliance.
Written by Annemaria Duran. Last Updated on November 7, 2017