Department of Labor and Industries Issued Final Paid Sick Leave Rules
On Friday, October 20, 2017, the Department of Labor and Industries issued its final paid sick leave rules addressing employer requirements and employee rights under Initiative 1433.
Beginning on January 1, 2018, all Washington employers will be required to provide paid sick leave to their Washington employees. The following provides a brief overview of what the new regulations require:
- All businesses, as broadly defined by the Washington minimum wage and hour statute, will be required to provide their Washington employees with up to 40 hours of protected leave per year.
- Employees will accrue 1 hour of leave for every 40 hours that they work. Employers can avoid the administrative hassle of accrual calculations if they choose to “front-load” employees with their total sick leave for the year as soon as the employee is eligible to use sick leave and at the start of each subsequent year.
- Employees are eligible to use accrued paid sick leave on the 91st calendar day of their employment.
- Employers must provide a written policy regarding sick leave. The Department of Labor and Industries will provide sample policies that will comply with its requirements.
- Businesses have the ability to seek variances with respect to aspects of the new law if they can show “good cause.” Businesses with collective bargaining agreements are not per se exempt and should submit a request for a variance if needed.
- The Washington rules vary significantly from the Oregon rules in that WA employers may not adopt policies to limit employee use or accrual of sick leave hours.
- Employees may carry over up to 40 hours of accrued, unused sick leave to the following year. Employers may cap carryover of accrued, unused paid sick leave to the following year at 40 hours. Employers may allow for a more generous carryover of accrued, unused paid sick leave to the following year.
- The law covers more than just “sick leave.” Employers generally must allow employees to take time off for everything from a family member’s illness to a regular doctor’s visit to assisting a family member with a domestic violence situation.
- Employees may take sick leave in increments as small as one hour, unless the employer has applied for and been granted a variance to provide sick leave in different increments. The rules have a detailed section on application for and eligibility for a variance.
- Employers are not required to pay out accrued but unused sick time at an employee’s termination from employment. However, if employees return to the same employer within 180 days, the employer will have to restore the employee’s progress toward eligibility and any accrued but unused sick time.
- Employers may require that employees provide verification of their need for sick leave after being absent for at least three consecutive days.
- Employers with paid time off (“PTO”), paid vacation policies, or other similar paid time off programs that provide substantially equivalent or more generous benefits to employees than the new law’s requirements will be deemed to be in compliance with the law. In addition, if employees use all of their PTO, the employer is not required to provide additional leave based on this law (although other laws may require that an employee receive unpaid leave).
- Employers can require that employees follow certain policies and procedures for requesting leave and providing medical verification, but there are strict limitations on when and how this is done.
- Employers will be required to provide at least monthly notice to each employee of the amount of accrued and unused sick time that is available for use by the employee.
- Employers are prohibited from denying, interfering with, restraining, or failing to pay sick time or taking any steps to discriminate or retaliate against an employee who requests or takes sick leave.
It is time to take action on this statute and to make sure that you have decided how you are going to comply, whether that will be through a separate sick leave bank, a combined PTO bank, or front-loading. There are pros and cons of each of these types of policies and the attorneys at Schwabe, Williamson & Wyatt can help you work through which will be most beneficial for your organization. The rules will become effective in just over two months, on January 1, 2018. In light of this, well before the end of the year, you should review your handbook and other policies regarding employee leave. In reality, all employers with Washington workers will need to make some adjustments to their policies and provide new notices and postings. This new law is complicated. Consult your trusted legal advisor to ensure that you are prepared for next year. We are closely following the development of sick leave laws in the Pacific Northwest and will continue to keep you informed.
- Jean Ohman BackOf Counsel
- Stephanie BerntsenShareholder