A representative from L&I came to AGC on February 15 and outlined the details of the Washington State Paid Sick Leave Law that went into effect January 1, 2018.
NOTE: If you were unable to attend, click on the link to the presentation.
Following the presentation there was a Q & A session. Below we have highlighted the most commonly asked questions:
Q: If my employee lives in Washington, but exclusively works in Oregon, am I subject to this law?
A: No, the law concerns work performed in Washington.
Q: My company is based in Oregon, and my employee lives in Oregon, but they exclusively perform work in Washington, am I subject to this law?
Q: My company is based in Oregon and my employee works sometimes in Washington and sometimes in Oregon – am I subject to this law?
A: Most likely. L&I is working on drafting guidance that will give “thresholds” for how much work has to be performed in Washington to be covered under the law, however, in the meantime, you should assume any work performed in Washington is subject to this law and account for and notify your affected employee(s) properly.
Q: I have an employee that performs work in both Washington and Oregon. If an employee earns the sick time for the Washington work, but then calls in sick while on an Oregon job, are they able to use hours out of their sick bank.
Q: Do I have to give partial sick hours?
A: No, you are required to give the one full hour only when an employee has worked a full 40 hours. For example:
- 79 hours worked = 1 hour of sick leave
- 80 hours worked = 2 hours of sick leave
- 81 hours worked = 2 hours of sick leave
However, employers can choose to be more generous and give partial sick hours based on whatever increments they choose. For example, if your payroll system records and pays in 15-minute increments:
- 50 hours worked = 1.25 hours of sick leave
- 60 hours worked = 1.5 hours of sick leave
- 70 hours worked = 1.75 hours of sick leave
Q: What is the “variance” referred to in this law?
A: L&I may grant a variance from the increments of paid sick leave usage required by WAC 296-128-630(4) for “good cause,” which allows an employer to provide a higher increment of use.
“Good cause” means situations where an employer can establish that compliance with the requirements for increments of use are infeasible, and that granting a variance does not have a significant harmful effect on the health, safety, and welfare of the involved employees. The existence of a collective bargaining agreement, which sets forth increments of use, may be used as a factor in determining good cause for granting a variance.
An example? A flight attendant who had a doctor’s appointment scheduled for mid-way through an assigned flight. They cannot just leave the airplane, run to the doctor, and hop back on the plane 30 minutes later.
Q: How do I go about getting a variance?
A: The employer must file a written application with L&I to establish “good cause.”
Other Helpful Information
What employers must do by January 1, 2018 for non-exempt employees:
- Ensure that non-exempt employees accrue at least one hour of paid sick leave for every forty hours worked.
- Eliminate caps on Paid Sick Leave accrual, and ensure that employees can carry over at least 40 hours of leave from year to year.
- Permit the use of Paid Sick Leave in the lowest increment possible under an employer’s payroll system and practices, not to exceed an hour.
- Permit employees to use Paid Sick Leave after 90 days of employment.
- Pay employees on Paid Sick Leave the rate that they would have earned if they had worked, including differentials, except that employers need not pay at an overtime or premium rate unless such a rate is required under a Collective Bargaining Agreement or employer policy.
- Create a written policy covering Paid Sick Leave rights, including required employee notice, how the employer intends to handle verification of Paid Sick Leave, and, if an employer is using an existing leave bank to satisfy the new law’s requirements, how Paid Sick Leave is designated within that bank. L&I has provided sample policies for employers to customize and use.
- Notify employees about their entitlement to Paid Sick Leave, the rate at which they will accrue Paid Sick Leave, authorized purposes for which Paid Sick Leave can be used, and that retaliation for use of Paid Sick Leave is prohibited.
- Each month, provide employees with their Paid Sick Leave balance, the amount of Paid Sick Leave accrued in that month, and the amount of Paid Sick Leave used in that month, including why it was used (used by the employee or donated to another).
- For three years, for each employee, keep records of the date the employee began employment, the monthly information discussed above, and the amount of Paid Sick Leave not carried over from year to year.
What employers cannot do starting on January 1, 2018 for non-exempt employees:
- Require that employees find coverage in order to use Paid Sick Leave.
- Use policies that count the proper use of sick leave as an absence that may lead to discipline (such as strict “point” attendance policies that do not consider the reason that employees were absent).
- Retaliate against employees for exercising their Paid Sick Leave rights, including using Paid Sick Leave absences as a negative factor in evaluations and employment decisions.
- Request verification that an employee on Paid Sick Leave is using the leave for its intended purpose until the employee has been out on leave for more than three consecutive days when the employee was scheduled to work (unless such verification is permitted by another law, such as FMLA).
- Permit existing employees to voluntarily cash out Paid Sick Leave that would leave them with a Paid Sick Leave balance of less than 40 hours.
- “Zero out” employees’ Paid Sick Leave when the employees end employment or transfer to an exempt position, unless the value of the Paid Sick Leave is paid out to the employees. If an employee leaves employment and is re-hired within 12 months, the employee’s Paid Sick Leave balance must be reinstated (unless it was cashed out at the end of employment).
What employers may do starting on January 1, 2018 for non-exempt employees:
- Use existing Paid Time Off programs to satisfy the Paid Sick Leave requirements of the new law, as long as such programs meet or exceed the requirements of the new law.
- Pay for accrued, unused Paid Sick Leave upon employees’ separation from employment. However, cashing out Paid Sick Leave is not required unless agreed to in a Collective Bargaining Agreement or employee policy.
Still Have Questions?
Employers Get Ready for Paid Sick Leave Webinar
The class will cover the new Paid Sick Leave Law requiring employers to provide paid sick leave to most employees beginning January 1, 2018. Get an overview of Initiative 1433, which changed state law regarding minimum wage, ensuring tips and service charges are given to the appropriate staff, and requiring employers to provide paid sick leave.
Please register in advance to ensure your place at the session you choose. Space is limited.
Disclaimer: This information has been put together as a courtesy based upon our 2.5.18 sessions with an L&I representative. Please note that this information is NOT legal advice, and should you have specific questions, please contact L&I directly, or legal counsel.