Washington State’s New Paid Sick Leave Policy, Explained

Experts answer seven big questions about the policy set to go into effect Jan. 1.
 
 

On Jan. 1, 2018, all employers must provide paid sick leave to most Washington-based employees. The only exception are outside salespeople and employees who are properly classified as exempt from overtime under the so-called federal and state white collar exemptions, that is bona fide executives, administrative managers, or learned professionals.

Why Does It Matter?

The law’s stated purpose is to serve "the public interest to provide reasonable paid sick leave for employees to care for the health of themselves and their families." While the state is still working to finalize its enforcement regulations, the law also has "teeth" for employers who do not comply in the form of strong enforcement powers by Washington’s Department of Labor & Industries. And while the law contains no right for employees to sue in court, employees who do not received paid leave for covered reasons may have a claim under state wage and hour laws, which risks punitive damages and attorney fees awards. The final enforcement regulations are expected before the end of the year.

But I Already Have a Seattle Paid Leave Policy?

Washington’s law presents particular compliance challenges for employers with employees in cities with existing paid leave laws such as Seattle, because the state wide law is different from many aspects of local laws. Employers must comply with both laws, and in the case of conflict, follow the law that affords the employee the most rights. Employers with Seattle operations likely need to update their existing policy to bring it in line with Washington’s new rules. 

How Much Leave Must I Provide?

Eligible employees must accrue at least one hour of paid sick leave for every forty hours worked. For large employers with Seattle employees, however, the higher rate of accrual, 1 hour for every 30 hours worked, still applies. Employees are also entitled to use their accrued leave no later than their 90th day of employment — earlier than Seattle requires. And unlike Seattle’s law, employers may not cap the accrual or annual use. Employees also must be permitted to carry-over up to 40 hours of accrued, unused paid sick leave at the end of each benefit year.

Instead of accruing paid sick leave, employers may frontload as long as the amount equals or exceeds what the employee otherwise would have accrued, and they must make up any shortfalls within 30 days. Employees cannot be required to pay back any paid sick leave exceeding the accrual. 

Another alternative is a “universal” paid time off (PTO) policy combining personal, vacation and sick leave, but such a policy must meet or exceed the new law’s requirements. However, employees who exhaust their available PTO for reasons other than sick leave are not entitled to additional paid leave if a need later arises.

What Does “Sick Leave” Mean?

“Sick leave” covers (1) care for employees or their family members; (2) school or workplace closures for public health reasons; or (3) absences falling under Washington’s Domestic Violence Leave Act. The definition of “family members” is different that Seattle’s law. It covers parents-in-law; Washington’s law does not, but it adds siblings and grandparents.

Employers may require advance notice from employees for foreseeable leave. But employers cannot require employees to find a co-worker to cover their shift.  If the need for leave is unforeseeable (e.g., emergency illness), employers may require notice before the start of the shift, unless it is not practicable to do so. Employers also may not ask for verification of the employee’s need to use paid sick leave until the employee has been absent for three consecutive scheduled days. Unlike Seattle’s law, there is no exception for suspected leave abuse.

What and When Do I Pay?

Different from existing paid sick leave laws across Washington, employee’s sick leave is paid at the greater of minimum wage or their “normal hourly compensation.” This is different than an employee’s regular rate of pay and may include commissions, although it does not include tips. Paid leave taken must be included in the paycheck for pay period in which the employee took the leave. At the end of employment, employers are not required to pay out an employee’s unused paid sick leave, provided this is stated in a written policy. 

What Do I Need to Tell Employees?

When employees start work, employers must notify them of their sick leave entitlement, the accrual rate, covered paid sick leave reasons, and that retaliation for use of paid sick leave is prohibited. The state is working on a sample form. While Seattle’s law requires notification to employees each pay period, the state law requires at least monthly notification of the amount of accrued, taken, and available paid sick leave. Employers are also required to maintain records of this information.

What Are My Next Steps?

In addition to updating current paid sick leave or PTO policies, employers should familiarize themselves with record keeping requirements and continue to monitor Labor & Industries website for updates, such as the final enforcement regulations, trainings, and the required poster.

This article was contributed by Catharine Morisset and Meg Burnham of the labor and employment law firm Fisher Phillips.

Disclaimer: This article is not legal advice. If you need legal advice, please consult your employment law attorney. 

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