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Prepare for changes to the state law regarding sick leave

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Most employers are aware that the voters passed Initiative 1433 in November, increasing Washington state’s minimum wage, effective Jan. 1, 2017, to $11 an hour and establishing additional graduated minimum wage increases each year. 

However, many employers are not aware that Initiative 1433 also requires that all employers, regardless of size, must allow all employees to accrue at least one (1) hour of paid sick leave for every 40 hours worked. The new sick leave accrual law takes effect Jan. 1, 2018. The law specifies sick leave, and does not address whether employer provided PTO or other similar employer paid leave programs might meet the requirements of the new law.

As currently enacted, this law applies to all employees, including temporary, part-time and seasonal employees.

Additionally, the new law allows employees to use paid sick leave for, among other reasons, the following:

  • The employee’s own absences for illnesses or injuries; to accommodate an employee’s need for medical diagnosis or care or an employee’s need for preventive medical care;
  • To allow an employee to provide care for a family member (as further defined by the statute);
  • When an employee’s workplace or child’s school or place of care is closed for any health related reason; and
  • Absences that qualify for leave under the state’s domestic leave act (Chapter RCW 49.76).

Employers must allow employees to use any accrued sick leave beginning on the 90th calendar (not business) day after the employee starts work.

While an employer may require employees to give reasonable notice of an absence, the notice requirement cannot be used to interfere with an employee’s use of paid sick. Also, the law only allows an employer to require verification that the use of paid sick leave is for an authorized purpose for absences exceeding three days. The verification cannot result in an unreasonable burden or expense to the employee.

Employers are also required to provide regular notice to employees about the amount of accrued paid sick leave available to use.

Further, employers are required to allow employees to carryover up to 40 hours of unused sick leave into the following year; however, employers are not required to pay for unused sick leave upon an employee’s separation of employment for any reason. On the other hand, if an employee leaves employment, for any reason, with accrued but unused sick leave and is rehired within twelve months, the employer must reinstate the employee’s accrued but unused paid sick leave account and count the prior employment in determining future eligibility to use paid sick leave.

Additionally, an employer cannot count the use of paid sick as an absence that could lead to discipline of the employee, and an employer cannot discriminate or retaliate against an employee for using paid sick leave.

Until the Department of Labor and Industries (L&I) issues guidance, the new law is likely to raise more questions than it answers.

Under RCW 49.46.810, L&I is authorized to develop and implement paid sick leave policies. Employers should pay particular attention to this rule-making process and work with their legislative representatives to try to bring some clarity to the rules that may eventually be adopted. Any rule-making process should provide opportunity for public comment during a particular time frame.

Because the new rules do not go into effect until next year now is the time for employers to start reviewing their existing paid leave policies and prepare to adjust payroll systems for the smooth implementation of the new sick leave rules.

Employers with unionized employees will need to evaluate their bargaining agreements to determine if changes need to be made to allow the accrual of paid sick leave for any employees (part time, temporary or seasonal) who work 40 hours or more. The new law does not specify that the 40 hours must be worked in the same work week. Thus, as currently written, any employee who works 40 hours over any span of time is entitled to accrue an hour of sick leave for each 40 hours worked.

Employers should be checking with their trade associations or legal counsel regarding this new law and prepare to implement it accordingly.

Gil Sparks is Of-Counsel for Ogden Murphy Wallace, and has over 28 years representing employers on employment and labor law matters. Additionally, he has over 16 years senior human resources experience and is certified as a Senior Professional in Human Resources. Erin McCool is a member with Ogden Murphy Wallace practicing in the areas of litigation, employment & labor law, and land use & water. She provides advice and consultation to local businesses, employers, and municipalities regarding state and federal wage and hour laws.