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Paid Sick Leave – Frequently Asked Questions

On Behalf of | Dec 14, 2017 | Business And Corporate Law

Starting January 1, 2018, all Washington employers regardless of size must offer paid sick leave to certain employees. Eligible employees will be entitled to accrue at least one hour of paid sick leave for every 40 hours worked. Starting January 1, 2018, Washington employers must also increase the minimum wage they pay to their employees to $11.50 per hour. Certain cities already require a higher minimum wage. Both of these requirements are the result of Initiative 1433 that passed in 2016.

Employers must notify their employees about the availability of this new, legally mandated employee benefit, and depending on how employers intend to comply with the new law, they may need to implement written paid sick leave policies. Employers who currently offer paid leave of any sort will need to review and potentially revise their policies, including any disciplinary policies related to attendance, to ensure compliance with the new law.

JDSA Law traveled throughout Central Washington in November, informing employers about the new law.

If you missed our presentations, below are some Frequently Asked Questions that will benefit you

1.  I understand this applies to all employers regardless of how many employees they have (even just one), but which employees are eligible for this benefit?

All “employees” as defined in the Washington Minimum Wage Requirements and Labor Standards (RCW 49.46) are eligible for paid sick leave benefits. This law (RCW 49.46.010(3)), however, excludes 16 categories of employees from the definition of “employee”. These 16 categories of employees are not entitled to paid sick leave benefits. For example, those employed in a bona fide executive, administrative, or professional capacity, or in the capacity of outside salesperson as defined by law (“white collar” exempt employees) make up one of the 16 categories that are not entitled to paid sick leave. Employers should review these categories to determine if their employees fit within them. If they do not, they are eligible for the benefit.

2.  Do I have to tell my employees about this new law?
Yes, you must notify your eligible employees in written or electronic form of their entitlement to the following:

Employees hired on or after January 1, 2018, must be notified no later than the start of their employment. You have until March 1, 2018 to notify any employees employed by you prior to January 1, 2018, but because employees will accrue paid sick leave starting on January 1, 2018, and some may be eligible to use the benefit prior to March 1, 2018, notifying current employees by January 1, 2018 makes sense.

  • Employees are entitled to paid sick leave;
  • The rate at which the employee will accrue paid sick leave (at least 1 hour per every 40 hours worked);
  • The authorized purposes for which the employees can use paid sick leave; and
  • Retaliation by you for the employee’s lawful use of paid sick leave or his/her exercise of other rights under the law is prohibited

3.  What other notifications do I have to provide employees? Do I have to have a written paid sick leave policy?

The law does not require that you have a written policy, but if you choose to incorporate certain optional practices into your paid sick leave policy, you must do so in writing. For example, if you require employees to provide reasonable advance notice for their foreseeable use of paid sick leave or verification that their use was for an authorized purpose, you must have a written policy outlining these requirements. If you allow employees to share their leave benefits with one another or if you front load their leave rather than use an accrual method, this must also be in writing.

You must also provide employees with written notification of the following:

  • Monthly notification of paid sick leave hours accrued, used, and remaining. This requirement can be met by inclusion on pay stubs or by separate written notice.
  • If you offer to pay out accrued unused paid sick leave upon termination, you must generally agree upon the terms of such pay out in writing with the employee.
  • If you are providing paid sick leave as a part of a paid time off (PTO) policy.
  • If you use a 12-month period for accrual and tracking other than the calendar year.
  • If you allow employees to work additional hours or swap shifts instead of using their accrued sick leave for an absence, this must be by mutual agreement between all employees involved and you. Because you cannot require employees to search or find a replacement worker to cover missed work time, for your protection you should document the mutual agreement of those involved in a shift swap.

4.  How does this affect my attendance policy?

You must ensure your attendance policies do not subject employees to any adverse employment actions as a result of taking their accrued paid sick leave. Revise any no-call no-show policy to reflect the requirements of the new law. Remember that under the paid sick leave law, employees are allowed to have up to three consecutive scheduled work days of paid sick leave, and only when they exceed that amount can an employer require them to provide written verification that the leave was taken for an authorized purpose, and only if the employer’s written policy allows it.

5.  What if an employee is absent on the last day of the pay period and does not tell me whether they are taking paid sick leave? Do I pay them paid sick leave for that absence and when?

Although this is not expressly addressed in the paid sick leave law or accompanying regulations, our inquiries with the Department of Labor and Industries indicate that the Department interprets the law to require an employee’s consent to use the paid sick leave benefit. In this context, an employer should not assume an absence is for an authorized purpose and apply the benefit without hearing from the employee. In those rare instances where an employee is incapacitated due to his/her physical condition and could not timely notify you that leave is for an authorized purpose, you should treat the time off as unpaid until you hear from the employee, and then retroactively apply the benefit if circumstances warrant.

6.  I’m worried about the fact that I cannot discipline employees for no-call no-shows with this new law. What should I do?

The law and regulations allow employers to require employees to notify them as soon as practicable of their need to use paid sick leave and generally prior to the start of a missed shift. That said, an employer’s notice requirement cannot interfere with an employee’s lawful use of his/her paid sick leave. There are rare circumstances where an employee is unable to call, text, or at least have someone else notify the employer prior to the start of the shift. Unless one of those rare circumstances is at issue, if an employer’s policy requires, employees must provide advance notice of their tardiness or absence. In order to determine whether an employees’ failure to timely notify of his/her absence is justified, employers may ask employees for the reason that they could not notify the employer prior to the shift starting that they are taking paid sick leave (so long as the employee is not required to give information regarding his/her medical condition by doing so).

7.  What is appropriate monthly notice to employees of the sick leave they have accrued, used, and have available? Can this be on their pay stubs?

Monthly notifications must be in writing. This can be done on employee pay stubs. Keep in mind that Washington is not the first state to enact paid sick leave and accounting programs have already been tracking similar paid sick leave for their clients in other states. Some of the major accounting software programs have the ability to track and print paid sick leave accrual and use. You should contact your accountant, bookkeeper, and/or accounting software provider for further information.

8.  Can I require that employees take paid sick leave in half day or full day increments?

Although the regulations provide a process for obtaining a variance based on a showing of good cause, you must allow employees to use paid sick leave in increments consistent with your payroll system and practices, not to exceed one hour. But note, if you track time for compensation purposes in smaller increments, you must allow employees to use paid sick leave in those smaller increments.

9.  Do you have a sample paid sick leave policy that I could use?
We can provide a paid sick leave policy, including the consultation needed to tailor the policy to your business for a flat fee. Please contact us if you are interested in such a policy.

10.  If I have other questions not addressed in the FAQ, where can I go?
There are many resources available to obtain information about Paid Sick Leave. Refer to the Resource Information below: