Employment Law Blog

News, trends and analysis in employment law and HR

Oct 16, 2017

Washington Paid Sick Leave: Frequently Asked Questions

Leave Laws 

On September 21, 2017 Vigilant hosted a Washington Paid Sick Leave webinar. Find a list of FAQs from the webinar below.

LOCAL ORDINANCES

1. Question: We have locations throughout Washington, including Seattle and Tacoma. Does the Washington Paid Sick Leave law trump the Seattle Sick and Safe Time and Tacoma City ordinances?

Answer: No. You must still meet all of the minimum requirements of each city ordinance as well as the Washington’s Paid Sick Leave law’s minimum requirements.

2. Question: How do I figure out the differences between the local ordinances and state law?

Answer: Vigilant’s Legal Guide “Paid Sick Leave Laws: Washington and Local Ordinances” (6806) compares the key details of Washington’s law and regulations with Seattle and Tacoma ordinances and regulations. Your Vigilant attorney can also help you navigate the differences and draft compliant policies. If you have locations or employees working in other states, contact your Vigilant or other legal advisor to determine coverage, requirements, and policy language.

UNIONS

3. Question: Do we have to change the paid leaves in our Collective Bargaining Agreements (CBAs)?

Answer: Probably. The new law does not carve out an exception for CBAs. If the paid leave benefits granted in your CBA meet all of the minimum requirements of the law, then you will not have to change anything. If the paid leave policies in your CBA do not meet all of the minimum requirements of the law, you will need to give notice to the union of your intended actions and bargain any changes.

COVERED EMPLOYEES

4. Question: Do we now have to track exempt employees’ hours of work to make sure we grant the requisite number of paid sick leave hours?

Answer: No. The Washington Paid Sick Leave law only applies to non-exempt employees. You do not have to grant exempt employees paid sick leave. However, check your local ordinance(s) that may apply. For example, Seattle and Tacoma ordinances cover exempt workers.

5. Question: We don’t provide paid leave for our part-time workers. Are they covered by this law?

Answer: Yes, so long as they meet the definition of “employee” under the Minimum Wage Requirements and Labor Standards (RCW 49.46.010). The MWRLS excludes administrative, executive, and professional employees, as well as a few other groups, but not part time employees simply due to their part time status.

6. Question: Our company is based in Oregon, but we have sales reps that are Oregon residents working in Washington. Are they eligible for Washington sick leave?

Answer: Possibly. Washington paid sick leave covers all “employees” as defined by the Washington Minimum Wage Requirements and Labor Standards (WMWRLS). “Employees” in the WMWRLS excludes bona fide executive, administrative, professional, and outside salespersons. Thus, if your sales reps fall into one of these categories, then they are not eligible for Washington paid sick leave. If they are not exempt, you should accrue time and allow use while in Washington. If you are unsure of whether your employees are exempt under the WMWRLS, contact your legal advisor or Vigilant attorney.

7. Quesiton: Do I have to provide paid sick leave to those individuals I employ through a staffing agency?

Answer: Probably not. The staffing agency is most often responsible for liabilities and benefits, such as paid sick leave. However, the degree of your responsibility depends on the degree of control you have over the temp employee, the understanding with the temp worker, and, most importantly, the terms of your contract. If you use temp workers, contact the staffing agency to clarify responsibility.

PAID TIME OFF

8. Question: We already provide 40 hours of vacation. Do we have to offer an additional amount of paid sick leave?

Answer: Yes, if the vacation time is not allowed for sick leave. If you intend for the 40 hours to also be used for sick leave (a joint paid time off policy), you will need to add hours if the 40 hours of vacation is less than what an employee would earn under the 1-hour-per-40-hours-worked accrual method. If the employee would earn less, you do not need to add hours; however, you do need to make sure your vacation policy meets all other requirements of the regulations, including notification, uses of leave, increments of use, etc.

9. Question: If we provide a PTO bank of hours that employees can use for any reason (vacation, illness, emergencies, etc.) and an employee chooses to use all of her time for vacation, do we have to provide more paid sick leave?

Answer: Maybe. You must provide at least the amount of paid sick leave the employee would accrue each year per the new law (one hour of leave for every 40 hours worked). So if you only provide 40 PTO hours, but the employee would accrue 48 paid sick leave hours per the new law, then you would have to provide 8 hours more paid sick leave. However, if you provide 40 PTO hours and the employee would only accrue 40 paid leave hours per the new law, then you would not have to provide any additional paid sick leave.

10. Question: Can we apply different rules for leave taken for sick and vacation under our PTO policy?

Answer: Not if your PTO is a pooled bank of leave. In its Concise Explanatory Statement released with the final rules, the Department of Labor and Industries notes that sick leave rights and requirements apply to the entire PTO policy if you are not distinguishing and tracking the types of leave. In other words, if your PTO bank is separate from the sick leave bank or if your PTO bank includes a designated sick leave subset with its own accrual and use tracking, then you can apply different rules to the hours not designated as sick leave. For advice on whether or how to use this option, contact your legal advisor or Vigilant attorney.

11. Question: If our paid sick leave policy is more generous than what is required, can we count the additional leave used as an occurrence under our attendance policy without it being deemed retaliation?

Answer: Possibly. The Department of Labor & Industries, in its Concise Explanatory Statement, emphatically states, “Establishment of an occurrence system which counts any use of accrued, paid sick leave as an absence for which disciplinary action is taken by the employer would violate the [paid sick leave] statute.” However, the Department also notes that accruals in excess of the minimum required are not subject to the paid sick leave rules only if this leave is separately tracked and employees are told that the additional accruals are not subject to paid sick leave rules. If you want to count the sick absences after protected sick leave is exhausted as occurrences, ensure that you would be able to show, if challenged by the employee or Department, that you are tracking the sick leave in excess of the minimum required, your policy informs employees of the occurrence requirements on leave in excess of the minimum, and your attendance policy in no way interferes with or disciplines the employee for using the protected portion of paid sick leave.

FRONTLOADING & ACCRUAL

12. Question: If I frontload too much, can I offset from future amounts? For example, if I put too much in the first half of the year, can I deduct that amount from what I frontload in the second half of the year?

Answer: Possibly. If you frontload too much and the employee uses that amount, you cannot require monetary reimbursement from what they used. However, the rule does not prohibit an adjustment to subsequent frontloaded amounts as long as at the end of the leave year that the total amount given was at least 1 hour for every 40 hours worked. If the total frontloaded amount falls short of the amount the employee was entitled to accrue, then you will need to make the additional amount available for use no later than 30 days after discovering the difference.

13. Question: For non-exempt employees, how do I accurately frontload when several have frequent and variable overtime?

Answer: The rules require a “reasonable calculation” of what the employee would be projected to accrue during the period of time covered by the frontloaded leave. If you anticipate a similar workload for your non-exempt employees in the coming year, you can take the total hours worked from the prior year, including overtime, and apply the 1-per-40 accrual rate to calculate anticipated sick leave hours in the next year. You can also calculate based on shorter periods of time (e.g., calculate based on hours worked in a four month period of the prior year) and frontload for a shorter period of time in the coming year (e.g, a four month period), but doing so lessens the administrative convenience of frontloading leave. If the overtime is too variable to reasonably calculate, you should consider using the accrual method.

14. Question: If we decide to frontload, how often should we go back and check the frontloaded amount to make sure it’s enough?

Answer: How often you check depends on the confidence you have in your frontloaded calculation. For example, if you frontload for a year but have a surge of work with a lot of overtime in the first quarter, you may want to check the frontloaded calculations mid-year. If you frontload for shorter periods, you need to check near the end of each frontloaded period to “ensure” that the employee is given all sick leave he or she would have accrued during the frontloaded period. You are also required to provide written or electronic notice to each employee by the end of the frontloaded period notifying the employee he or she received all of the paid sick leave to which the employee was entitled at the required accrual rate (1 hour of leave per 40 hours worked). If the frontloaded amount falls short of what the employee should have earned, then you will need to reconcile the amount no later than 30 days after finding the discrepancy. And if the employee already used sick leave that was frontloaded in excess of what he or she would have earned, you cannot seek reimbursement.

15. Question: Can we use different leave options for different categories of employees? For example, could we frontload leave for office employees and use the accrual method for our production employees?

Answer: Yes. You may have different groups of employees with different methods of granting leave. Because your office staff may not work much, if any, overtime, the number of hours of paid sick leave is known and easily frontloaded. For your production employees who work a variety of different amounts of overtime, it might be easier and more accurate to use an accrual method for earning leave. Ensure that you are basing your decision on documented, legitimate business reasons--similar to the reasons listed above--to avoid a perception of unfairness or discrimination claim.

LEAVE YEAR

16. Question: The law allows us to have different leave years for different employee groups. When would that make sense?

Answer: Different leave years may be appropriate in a unionized environment. Oftentimes, represented employees receive their leave benefits on their anniversary date and non-represented employees receive their leave benefits based upon a calendar year. An employer may also want to have different leave years to coincide with work schedules and seasonal sicknesses to avoid key crews or shifts being absent at the same time. Ultimately you can make the determination based on business needs so long as it’s not discriminatory.

17. Question: If the company wants to have staggered leave years, what happens in the time between January 1st and the start of the leave year?

Answer: Accrual starts on January 1, 2018, regardless of your designated leave year. Thus, the time between January 1st and the start of the leave year will be in essence its own leave year, and any hours accrued, up to 40, would carry over into the new leave year. For example, if an employee’s anniversary date is June 12, the first leave year will be January 1st through June 11th. If the employee accrues 28 hours (and uses none), then on June 12th the employee will begin with 28 hours in his leave bank and accrue additional hours during the next full leave year. If you are frontloading, then you will frontload the expected hours for use from January 1st through June 11th. Assuming the 28 hours were accurately frontloaded (the frontloaded amount equals what the employee would have accrued under the 1-per-40-hour accrual method), the employee will begin the June 12th leave year with 28 hours plus the next frontloaded amount.

USAGE

18. Question: We pay people monthly for hours worked the previous month. When do we have to make the accrued paid leave available?

Answer: The leave must be accessible to the employee (i.e., in the leave bank and available for use) within 30 days after accrual. If paying monthly, each pay stub will include the accrued, used, and available leave based on hours worked that month.

19. Question: We currently frontload our vacation. If we change our vacation time to a paid time off (PTO) policy, can we still require employees to take the leave in full day increments?

Answer: No. You must allow leave usage in the same increments used by your payroll system. For instance, if you round time worked to the nearest quarter hour, then you must pay in quarter-hour (15 minute) increments. If you pay in other than 15–minute increments, you can require use of leave in those same increments provided it does not exceed one hour. The rule allows you to apply to the Department of Labor and Industries for a variance. However, it is a rigorous, documentation-heavy process. Consult with your legal advisor or Vigilant attorney for more detail.

20. Question: We have an automated system that tracks by the minute. Do we have to allow use of foreseeable leave (e.g., doctor’s appointment) by the minute or can we require them to take leave by the hour?

Answer: You can apply paid leave if the use is for an authorized purpose, but you cannot force an employee to use sick leave if he or she doesn’t want to. In its Concise Explanatory Statement, the Department states, “The initiative does not permit employers to require employees to use accrued paid sick leave.” This is in answer to an employer asking whether it can send someone home who requested leave and subsequently showed up to work. The Department says it will consider these situations on a case-by-case basis, but the answer shows that the Department will likely favor the employee unless the employer has a solid business related reason for sending the employee home (e.g., “He showed up to work with a fever.”). However, if the employee is absent for a purpose authorized under the sick leave statute (e.g., “I’m taking my son to the doctor”), an employer may pay and deduct from the employee’s sick leave balance even if not directly requested by the employee. If the employee protests the use of paid sick leave, consult your legal advisor or Vigilant attorney.

21. Question: Can we require employees to use accrued sick leave or only if they request it?

Answer: You can apply paid leave if the use is for an authorized purpose, but you cannot force an employee to use sick leave if he or she doesn’t want to. In its Concise Explanatory Statement, the Department states, “The initiative does not permit employers to require employees to use accrued paid sick leave.” This is in answer to an employer asking whether it can send someone home who requested leave and subsequently showed up to work. The Department says it will consider these situations on a case-by-case basis, but the answer shows that the Department will likely favor the employee unless the employer has a solid business related reason for sending the employee home (e.g., “He showed up to work with a fever.”). However, if the employee is absent for a purpose authorized under the sick leave statute (e.g., “I’m taking my son to the doctor”), an employer may pay and deduct from the employee’s sick leave balance even if not directly requested by the employee. If the employee protests the use of paid sick leave, consult your legal advisor or Vigilant attorney.

22. Question: If we have an employee out of work due to an on the job injury and receiving time loss, do we still have the right to not allow the use of paid sick leave as we did prior to the passage of this law?

Answer: No. You must allow an employee use of any accrued but unused paid sick leave for the employee’s own illness. As currently drafted, the rule does not allow an employer to prevent the employee from receiving both time loss and paid sick leave (i.e., “double-dipping”). In its Concise Explanatory Statement, the Department stated that additional guidance on use of paid sick leave when a workers’ compensation claim exists will be included in a forthcoming administrative policy.

VERIFICATION

23. Question: Can I make my employee get a doctor’s note for being gone three days if he says he can’t afford to go to the doctor?

Answer: First, you cannot require a doctor’s note until your employee is gone for more than three days. If your employee has been absent during three consecutive days he was required to be at work, you can require a doctor’s note on the fourth day with an absence. If on the fourth day, the employee claims, verbally or in writing, that a doctor’s note would be an unreasonable burden or expense, within 10 days you have to identify alternatives, including accepting the employee’s statement in lieu of the doctor’s note or paying for some or all of the medical costs. If you disagree with the employee about whether getting a doctor’s note is an unreasonable burden or expense, you can hold payment of the leave and seek resolution from the Department.

24. Question: Can I ask for a doctor’s note if my employee shows up late four days in a row and says it’s because she’s taking care of her daughter who has the flu?

Answer: Yes. You can require verification for any absence exceeding three days. The absence is for any portion of the day, for three consecutive required days. Thus, if your employee is scheduled to work Monday through Friday and is 45 minutes late each day, you can request a note from her daughter’s doctor on Thursday. The note need only verify the daughter’s sickness, not give you details of the medical condition.

25. Question: Can I require verification through the FMLA process? What if the employee says the FMLA notification is an unreasonable expense?

Answer: Yes. The rules do not pre-empt medical inquiries made through certification requirements in any other local, state or federal laws. Thus, if sick leave will also be used for FMLA, then you can require verification that complies with FMLA. FMLA does not have an unreasonable expense exception to its certification procedures.

RATE OF PAY

26. Question: How is the pay rate calculated when the employee is paid at different rates depending on the work performed or the shift worked?

Answer: Generally, the employer must use a reasonable calculation based on the hourly rate an employee would have earned for the time during which the employee used paid sick leave. The rule provides several examples of how to calculate in different pay scenarios (commission-based employees, piece rate employees, nonexempt employees paid a salary, employees with fluctuating pay, and shifts of indeterminate length). For example, for a commission-based employee, divide total earnings by total hours worked in the full pay periods occurring in the last 90 days. Once you decide on a method to make the calculation, you need to use the same method for similarly situated employees.

27. Question: We currently count some of the time the employee does not actually work towards the overtime calculation. For example, if the employee does not work a holiday but gets paid for the holiday and then works 40 hours, the employee would receive overtime for the last 8 hours worked. Do we have to change this practice when an employee takes paid sick leave?

Answer: No. The time the employee is out on paid sick does not have to count as hours worked for purposes of calculating overtime. You should review your overtime policy and make it clear what time does or does not count towards the calculation of overtime. Your paid sick leave policy must also make it clear what time does or does not count towards the accrual of sick leave. You could allow the use of paid sick leave to count towards the calculation of overtime yet not count towards the accrual of more paid sick leave.

28. Question: If an employee accrues sick leave hours while receiving a shift differential but then takes sick time when he is no longer receiving/working a shift differential, do we pay the sick leave amount he is earning now or at the previous differential rate?

Answer: Leave is paid at the employee’s current pay rate. Sick leave does not accrue at a specific rate of pay. Instead, the employee is paid at the rate he would have earned had he worked and not taken the leave.

CARRYOVER

29. Question: We use seasonal labor that works three or four months of the year. What happens to their sick leave balances at the end of the season?

Answer: If you are no longer authorizing or requiring an employee to be on duty at your worksite—whether you terminate or allow the seasonal employee to remain on the payroll as inactive/laid off—the employee would be considered “separated” from employment under the rule. Thus, if you rehire or re-engage the employee within 12 months at the same or different location, you must reinstate any accrued, unused paid leave from the time of separation. If you cashed out accrued, unused leave, you do not need to reinstate any leave, but you do need apply any time worked in the last season to the 90-day eligibility threshold. For example, if you have a seasonal processing employee that starts work in June and ends work in August with 80 total days of work and was paid out 2 hours of paid sick leave at the end of the season, then you would revive the 80 days upon re-employment the next June, so that the employee would only need to work 10 more days to be eligible to use any accrued leave moving forward, although accrual would be starting at 0 in the new season.

30.Question: Does unused sick leave accumulate year after year? For example, in three years could an employee have up to 120 sick leave hours carried over, assuming he or she didn’t use them all?

Answer: No, carryover can be capped at 40 hours. An employee has no limit on the amount of hours that will accrue, but at the end of the leave year, only 40 hours must be carried over into the next leave year. If the employee gains another 40 hours in the next year and doesn’t use any sick leave, he or she would still only carry over 40 hours into the next leave year, assuming your company policy doesn’t allow for more generous carryover.

RECORD-KEEPING & REPORTING

31. Question: If I frontload, do I have to report to employees how much they have to use on their pay stubs?

Answer: It depends on the frequency of your pay stubs. The rule requires you to provide at least monthly notification (written or electronic) to the employee of the paid sick leave available for use. The rule also requires you to notify the employee at the end of the frontloaded period that confirms that the amount of frontloaded leave was at least equal to what he or she would have accrued.

32. Question: Our payroll and leave tracking system is entirely electronic. If the employee has online, on-demand access to all their sick leave information, do we also have to provide a monthly report to each employee?

Answer: The rule states that at least monthly employers “must provide each employee with written or electronic notification” that includes amount of leave accrued, used since the last notification, and any unused leave available (frontloading employers only have to notify monthly of leave available). The rule further states that the notification requirements are met by providing this information in “regular payroll statements.” Thus, if your online system provides at least monthly payroll statements and your employees are aware of the information contained online, then you do not need to send separate notifications to employees. Make sure that your sick leave policy and relevant handbook provisions contain information on how notice will be routinely provided on your online system.

33. Question: What record-keeping tools are available for employers?

Answer: There are multiple third party administrators and software platforms available to track and report accrual, use, and amount remaining. The best place to start is by talking with your payroll and/or HRIS vendor. Also note that while the rule allows third-party administrators, your company remains liable for the accurate administration of the rule. Thus, carefully review responsibilities and liabilities in the contract with your vendor(s) and make sure they can address all of your unique business needs (e.g., seasonal labor, varying leave years, etc.).

CASH OUT

34. Question: We currently allow employees to cash out PTO at any point during their leave year. Can we still allow that?

Answer: No. You can allow employees to cash out, but only (1) at the end of their leave year and (2) for the unused hours which exceed the 40-hour carryover requirement. You may also fully cash out the employee at separation if you have a written agreement with the departing employee about the terms of cash out. In its Concise Explanatory Statement, the Department stated, “The department will be working with employee and employer representatives to determine if additional circumstances exist where cash outs may be permissible.” Remember, if you allow cash out at either of these times it must be done voluntarily, agreed to in writing, and paid at the employee’s regular rate.       

35. Question: If we cash out accrued but unused paid sick leave at separation, can we do so at a lower rate than the employee’s regular rate of pay?

Answer: No. Any cash out of leave must be at the employee’s regular rate of pay or higher. You must also keep any records associated with the cash out, including the employee’s rate of pay, the number of hours cashed out, and the date of the cash out.

36. Question: If we cash out at termination, what happens at rehire?

Answer: If you rehire the employee at the same or different location within 12 months, you are not required to reinstate any hours of paid sick leave that were paid out so long as the amount cashed out was accurate and paid at the regular rate of pay. The rehired employee will begin immediately accruing paid sick leave. If the employee reached 90 calendar days of employment prior to separation, then he or she will be eligible to use leave immediately. If the employee did not reach 90 calendar days of employment prior to separation, then the remainder of 90 days must pass before being eligible to use leave, unless your policy allows for use prior to 90 days.

UNAUTHORIZED USE

37. Question: Our employee used 8 hours of leave for Washington Paid Sick Leave qualifying reason. Two weeks later, after the employee was already paid for that time, we found out via a Facebook post the employee was actually on vacation. What can we do?

Answer: You can and should go back and discipline the employee in a manner that’s consistent with how you handle other situations of dishonesty, but you may not deduct the eight hours from the employee’s accrued, unused sick leave hours. Because you already paid the sick leave, you also cannot recoup the amount from ongoing pay or the final paycheck unless you can justify a deduction under WAC 296-26-025 or 028. (Talk to your legal advisor or Vigilant attorney before you attempt a deduction under these regulations.) If you discover the dishonesty before paying sick leave, you may withhold the amount if you can demonstrate that the use was unauthorized, but be sure to keep documentation of the unauthorized use (e.g., copy of the request and the Facebook post) in case the employee challenges your discipline or deduction.

38. Question: Do you have any ideas on how to limit abuse of paid sick leave by employees, like pretending to be sick around the holidays?

Answer: The most effective way to curb abuse of sick leave is to have a work environment in which people feel engaged and valued, as well as supervisors that are connected and communicating with their direct reports. Other tools include staggering leave years for different groups of employees so that the end of the leave year does not occur around the time of a major holiday (e.g. Christmas) or cashing out leave over 40 hours. You can also require verification of leave if the employee is absent for more than three days. Call your Vigilant attorney for help brainstorming solutions specific to your challenges.

39. Question: What recourse do we have if we suspect that an employee is lying about being sick because the employee only uses sick leave on Fridays and Mondays?

Answer: Your first recourse is to confirm that the employee has accrued leave available to use for sick leave purposes (assuming you are accruing, not frontloading, leave). Second, ensure the employee follows your notification procedures. Failure to do so can result in discipline. Finally, while you cannot retaliate for use of leave for an authorized purpose, you can have honest, open dialogue about the time being missed and the impact on the team and/or crew. Employees that abuse sick leave usually have other performance issues that can and should be addressed outside of sick leave use.

RETALIATION

40. Question: We can’t afford to have our workers gone during the busy season, especially our seasonal workforce. Can we tell people that absences are only allowed except for extreme circumstances?

Answer: No. You can be clear about company needs and individual performance expectations (being on time and available to work), but you cannot deny, discourage or punish someone for the lawful use of sick leave. You can manage sick leave use by educating employees on the proper use of paid sick leave, only allow use of accrued amounts (first time seasonal employees will not accrue until the 91st day of employment), and require verification if more than three days are missed of work.

41. Question: Can we use an attendance bonus to encourage people not to use sick leave?

Answer: Yes, you can have an attendance or production bonus to incentivize workers, but you cannot count an employee’s use of Washington paid sick leave as an occurrence or absence that will affect the bonus. If being gone for any purpose authorized by the paid sick leave law would cause an employee not to use the leave for fear of losing or impacting the bonus, then this would be considered retaliation under the regulations.

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