New Paid Sick Leave
On January 1, 2018, Washington’s paid sick leave law went into effect. The paid sick leave law requires employers to notify, in written or electronic form, 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
● That 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.
The paid sick leave law applies to all employers and all nonexempt employees. This means employers of all sizes will need to keep track of hours worked and provide paid sick leave to part-time, full-time, on-call, seasonal, and temporary employees.
Employees who have been working for their employer at least 90 calendar days prior to January 1, 2018 are immediately eligible to use accrued paid sick leave. Employees who had their first day of work less than 90 calendar days prior to January 1, 2018 began accruing paid sick leave, but they will not be eligible to use their paid sick leave until they hit the 90 days of employment mark.
Accrual and Rate of Pay
Washington’s paid sick leave requires employers to provide one hour of paid sick leave for every 40 hours worked by an employee. An employee using their paid sick leave must be paid the greater of the minimum hourly wage rate or their normal hourly compensation. This seems straightforward, but not so for employers with commission, piece rate, or combination employees. Employers need to come up with a reasonable calculation to determine an hourly rate that an employee would have earned for the time during which the employee uses paid sick leave. For commission or piece rate employees, the rate of pay will vary depending on when the paid sick leave is taken by an employee.
Employers may provide a generous list of acceptable reasons for use of accrued paid sick leave, but at the minimum employers must allow their employees to use it:
● To care for themselves or a family member, including preventative medical care;
● When an employee’s place of business, their child’s school, or place of care has been closed by order of a public official for any health-related reason; and
● For leave that falls under the Domestic Violence Leave Act.
Who is considered a family member? A family member is a child, parent, spouse, registered domestic partner, grandparent, grandchild, or a sibling. However, employers may choose a broader definition of family members to include aunts, uncles, cousins, and other individuals that were left out of Washington’s definition of a family member.
Employers may not retaliate or discriminate against, or discipline an employee who uses accrued paid sick leave for authorized purposes. It is considered retaliation if an employer adopts or enforces any policy that counts the use of paid sick leave, for an authorized purpose, as an absence that may lead to or result in the firing of or disciplinary action against an employee.
Can I require my employee to provide notice for foreseeable or unforeseeable reasons for using paid sick leave? Yes, but employers are required to have a written policy or collective bargaining agreement in place prior to requiring reasonable notice.
Can I require proof from my employee that they are using paid sick leave for an authorized purpose? No, if the employee is absent for three or less than three work days. For absences exceeding three days, an employer may require verification as long as there is a written policy or collective bargaining agreement in place prior to requiring proof, notifying all employees of your policy, and making the policy readily available to all employees. The request for proof cannot put an unreasonable burden or expense on the employee.
What is the hourly rate if an employee takes a paid sick leave for hours that would have been overtime hours if worked? The hourly rate is the employee’s normal hourly compensation. Overtime pay is required only for hours actually worked.
If we already provide paid time off, do we have to provide additional paid sick leave on top of the paid time off? As long as the paid time off program meets or exceeds the provisions of the paid sick leave law, then you do not need to provide additional paid sick leave.
– Esther Hyun
This article and blog are intended to inform the reader of general legal principles applicable to the subject area. They are not intended to provide legal advice regarding specific problems or circumstances. Readers should consult with competent counsel with regard to specific situations.