New paid sick leave requirements starting Jan 1 2018
Starting January 1, 2018, employers in Washington will be required to provide their employees with paid sick leave. Caro & Associates clients will see the new sick time accrual be added to their employees. Please contact us with any questions.
Paid sick leave must accrue at a minimum rate of one hour of paid sick leave for every 40 hours worked. This includes part-time and seasonal workers.
Paid sick leave must be paid to employees at their normal hourly compensation.
Employees are entitled to use accrued paid sick leave beginning on the 90th calendar day after the start of their employment.
Unused paid sick leave of 40 hours or less must be carried over to the following year.
Employers are allowed to provide employees with more generous carry over and accrual policies.
Employees may use paid sick leave:To care for themselves or a family member.
When the employees’ workplace or their child's school or place of care has been closed by a public official for any health-related reason.
For absences that qualify for leave under the state's Domestic Violence Leave Act.
Employers may allow employees to use paid sick leave for additional purposes.
Employers with employees who work in cities that have a minimum wage and paid sick leave ordinance (Seattle, Tacoma, and the City of SeaTac) will need to apply the standards of such ordinances that are more favorable to employees.
In November 2016, voters passed I-1433
- Increases the state minimum wage over the next several years;
- Ensures employees receive the tips and service charges due;
- Requires employers to provide paid sick leave to employees beginning January 1, 2018; and
- Protects employees from retaliation for the lawful use of any employee right set forth under the Minimum Wage Requirements and Labor Standards Act (chapter 49.46 RCW) , including paid sick leave.
I-1433 Covered Employees
Workers that are exempt from the definition of “employee” in the Minimum Wage Requirements and Labor Standards Act are also exempt from the new paid sick leave requirements.
Exmples of such workers include, but are not limited to: Any individual paid a certain salaried amount and employed in a bona fide executive, administrative, or professional capacity. Any individual whose duties require that he or she reside or sleep at the place of his or her employment.
Applies to employees in both agricultural and non-agricultural jobs, unless another exemption applies.
Although there are some exemptions, most workers must be paid at least the minimum wage for all "hours worked" as required by state law.
Agreements may not be entered into, individually or collectively, between an employee and an employer that result in the employee receiving less that what is due under the Minimum Wage Requirements and Labor Standards Act (Chatper 49.46 RCW), which includes minimum wage, overtime, and paid sick leave.
2018 Minimum Wage
Employers must pay employees age 16 and older at least $11.50 per hour.
Employers may pay employees under 16 of age 85% of the minimum wage ($9.78 per hour in 2018).
More information: http://www.lni.wa.gov/WorkplaceRights/Wages/Minimum/
Employers with workers who work in certain local jurisdictions may be subject to a higher minimum wage than the state rate. See information on local minimum wage rates at the links below.
Sea-Tac Minimum Wage (www.ci.seatac.wa.us).
Seattle Minimum Wage (www.seattle.gov).
Tacoma Minimum Wage (www.cityoftacoma.org).
Federal Minimum Wage (www.dol.gov).
Paying certain workers less than minimum wage. (Link)
Tips & Service Charges
Tips and service charges paid to an employee are in addition to, and may not count towards, the employee's hourly minimum wage.
Paid Sick Leave Accrual
Employees (including part-time, seasonal and temporary staff) accrue paid sick leave for ALL hours worked (including overtime).
Employees are eligible to use their accrued paid sick leave in the beginning of the 90th calendar day after the start of their employment.
An employee shall accrue at least one hour of paid sick leave for every 40 hours worked. For each hour of paid sick leave used, an employee shall be paid their normal hourly compensation.
- An employer may provide an employee with a more generous accrual rate than one hour paid sick leave every 40 hours worked.
- For employees who are employed on or before January 1, 2018, paid sick leave will accrue for all hours worked beginning on January 1, 2018.
- Employees hired after January 1, 2018, begin accruing paid sick leave upon the start of their employment.
Employees accrue paid sick leave for all hours worked. An employer may not cap an employee's accrual.
Accrued, unused pad sick leave balances of 40 hours or less must carry over to the following year.
- The default accrual year is January 1 - December 31, but an employer may adopt a different fixed consecutive twelve-month period by an employer policy or collective bargaining agreement.
An employer may elect to provide employees with a more generous carry over.
Beginning on the 90th calendar day after the start of employment, employers must make accrued paid sick leave available for employees for use in a manner consistent with the employer's established payment interval or leave records management system, not to exceed one month after the day of accrual.
Unless subject to a variance, employers must allow employees to use paid sick leave in increments consistent with the employer's payroll system and practices, not to exceed one hour.
- Example: If an employer's payroll system and practice is to track increments of work in 15 minute increments, then an employer must allow employees to use paid sick leave in 15-minute increments.
An employer may require employees to give reasonable notice of an absence from work for the use of paid sick leave for an authorized purpose.
Foreseeable (i.e. doctor's appointment) - At least 10 days, or as early as practicable, in advance of the use of paid sick leave (employer can require less advance notice).
Unforeseeable (emergency) - As soon as possible before the required start of the employee's shift, unless it it not practicable to do so.
Employers are required to: have a written policy or collective bargaining agreement in place prior to requiring reasonable notice; notify all employees of such policy; and make the policy readily available to all employees.
Verification for Absences Exceeding Three Days
For absences exceeding three (3) days, an employer may require verification that an employee's use of paid sick leave is for an authorized purpose.
Verification may not result in an unreasonable burden or expense on the employee.
Employers are required to: have a written policy or collective bargaining agreement in place prior to requiring verification; notify all employees of such policy; and make the policy readily available to all employees.
Rate of Pay
For each hour of paid sick leave used, an employee must be paid their normal hourly compensation.
An employer must calculate an employee's normal hourly compensation using a reasonable calculation based on the hourly rate that an employee would have earned for the time during which the employee used paid sick leave.
An employer must apply a consistent methodology when calculating the normal hourly compensation to similarly-situated employees.
Paid Sick Leave - Rate of Pay
Example of reasonable calculation of normal hourly compensation for an employee paid partially or wholly on a piece rate basis:
- Dividing the total earnings by the total hours worked in the most recent workweek in which the employee performed identical or substantially similar work to the work they would have performed had they not used paid sick leave.
Example of a reasonable calculation for an employee whose hourly rate of pay fluctuates:
- If the employer can identify the hourly rates of pay for which the employee was scheduled to work, a calculation equal to the scheduled hourly rates of pay the employee would have earned during the period in which paid sick leave is used.
- If the employer cannot identify the hourly rates of pay for which the employee would have earned if the employee worked, a calculation based on the employee's average hourly rate of pay in the current or preceding thirty (30) days, whichever is greater.
Paid Sick Leave - Payment of Overtime
For employees who use paid sick leave for hours that would have been overtime hours if worked, employers are not required to apply overtime rates to an employee's normal hourly compensation. Overtime (at least 1.5 x the employee's regular hourly rate) pay is required only for hours worked above 40 in a seven-day workweek.
Payment of Paid Sick Leave
Unless verification for absences exceeding three days is required by an employer, the employer must pay paid sick leave to an employee no later than the payday for the pay period in which the paid sick leave was used by the employee.
If verification is required by the employer, paid sick leave must be paid to the employee no later than the payday for the pay period during which verification is provided to the employer by the employee.
Separation & Reinstatement
If an employee separates from employment, an employer is not required to provide financial or other reimbursement to the employee for accrued, unused paid sick leave balances available at the time of separation.
If an employer chooses to reimburse an employee for any portion of their accrued, unused paid sick leave at the time the employee separates from employment, any such terms for reimbursement must be mutually agreed upon in writing by both the employer and the employee, unless the right to such reimbursement is set forth elsewhere in state law or through collective bargaining agreement.
If an employee is rehired by the same employer within 12 months of separation, the employer must reinstate the employee's previously accrued, unused paid sick leave.
An employer is not required to reinstate any hours of paid sick leave previously provided to the employee through financial or other reimbursement at the time of separation, as long as the value of the paid sick leave was paid at a rate that was at least equal to the employee's normal hourly compensation.
Upon rehire, an employer must provide notification to the employee of the amount of accrued, unused paid sick leave available for use by the employee.
Paid Time Off (PTO) Programs
Paid time off (PTO) provided to employees by an employer's PTO program (e.g., a program that combines vacation leave, sick leave, or other forms of leave into one pool), satisfies the requirement to provide paid sick leave if the PTO program meets or exceeds the provisions of the paid sick leave law, and all applicable rules.
If an employee chooses to use their PTO leave for purposes other than those authorized by the paid sick leave law, and the need for use of paid sick leave later arises when no PTO leave is available, the employer is not required to provide any additional PTO leave to the employee.
An employer may establish a shared paid sick leave program where an employee may choose to donate paid sick leave to a co-worker.
Employers are required to: have a written policy or collective bargaining agreement in place prior to allowing an employee to donate or use shared paid sick leave; notify all employees of such policy; and make the policy readily available to all employees.
Upon mutual agreement by the employer and employee(s) involved, an employee may work additional hours or shifts, or trade shifts with another employee, in lieu of using available paid sick leave for missed hours or shifts that qualify for the use of paid sick leave.
An employer may not require that an employee search for or find a replacement worker to cover the hours during which the employee is using paid sick leave.
An employer may, but is not required to, frontload paid sick leave to an employee in advance of accrual.
If an employer frontloads paid sick leave, the employer must ensure that such frontloaded paid sick leave complies with the paid sick leave requirements, and all applicable rules.
Employers are required to: have a written policy or collective bargaining agreement in place prior to frontloading an emloyee paid sick leave; notify all employees of such policy; and make the policy readily available to all employees.
Employee Use of Paid Sick Leave for Unauthorized Purposes
If an employer can demonstrate that an employee's use of paid sick leave was for an unauthorized purpose, the employer may withhold payment of paid sick leave for such hours, but may NOT subsequently deduct those hours from an employee's paid sick leave balance.
If an employer withholds payment for the unauthorized use of paid sick leave, the employer must provide notification to the employee.
If an employer withholds payment for the unauthorized use of paid sick leave, and an employee maintains that the use was for an authorized purpose, the employee may file a complaint with L&I.
Employer Notification and Reporting
Employers must notify each employee of :
- Their entitlement to paid sick leave;
- The rate at which the employee will accrue paid sick leave;
- The authorized purposes for which paid sick leave may be used; and
- The retaliation by the employer for the employee's lawful use of paid sick leave and other rights provided under the Minimum Wage Requirements and Labor Standards Act, and all applicable rules, is prohibited.
Employers must provide such notification in written or electronic form, and must make this information readily available to all employees.
Updated Recordkeeping Requirements
Employers are required to keep and preserve payroll or other records containing the following information with respect to each employee covered by the Minimum Wage Requirements and Labor Standards Act:
- Paid sick leave accruals each month;
- Any unused paid sick leave available;
- Paid sick leave reductions each month (i.e., paid sick leave used, donated, or not carried over to the following year); and
- Date of commencement of the employee's employment.
Employee Rights Highlights
Entitled to use accrued paid sick leave beginning on the 90th calendar day after start of their employment.
Use paid sick leave without being required to find a replacement for their shift.
Carry over to the following year of accrued, unused paid sick leave balances of 40 hours or less.
Have accrued, unused paid sick leave reinstated if rehired by the same employer within 12 months of separation.
Paid Sick Leave - Employer Rights
Provide more generous paid sick leave policies, including a more generous accrual rate and purposes for use.
An employer may, but is not required to, frontload paid sick leave to an employee in advance of accrual. Such frontloading must meet or exceed the requirements for paid sick leave, and all applicable rules.
Employers may contract with a third-party administrator (TPA) in order to administer the paid sick leave requirements under the law, and all applicable rules. Employers are not relieved of their obligations under the paid sick leave law should they opt to contract with a TPA.
Employers May Not:
Interfere with, restrain, or deny the exercise of any employee right provided under or in connection with the Minimum Wage Requirements and Labor Standards Act.
Adopt or enforce any policy that counts the use of paid sick leave for an authorized purpose as an absence that may lead to or result in discipline against an employee.
Retaliate or discriminate against, or discipline an employee who uses accrued paid sick leave for authorized purposes.
Additional Website Resources:
L&I Employer Resource Center
I-1433 Employee Rights and Employer Obligations Rules that were filed to the Office of the Code Reviser on Oct. 17th:
Reminder that the Enforcement Rules just finished up the public hearings and the rules are in the process of being updated accordingly and are subject to be submitted to the Office of the Code Reviser on December 17th. (still pending)
Sample Paid Sick Leave Policies - still in draft format - pending final
Your Rights As A Worker Poster - L&I Required Poster
Sign up for Upcoming Webinars on Initiative I-1433