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Final Regulations Issued for Washington’s Paid Sick Leave Law, effective January 1, 2018

Published on October 27, 2017

The Department of Labor and Industries recently issued its final regulations on employer obligations under Washington’s statewide paid sick leave law, I-1433. A second set of regulations about the Department’s enforcement procedures is still in draft form, and is anticipated to be finalized in December 2017.

Below is an overview of important points employers should know about Washington’s paid sick leave law. Employers should review their leave policies to ensure compliance before the law goes into effect on January 1, 2018.

Overview of Washington Paid Sick Leave for Employers

  • Who is covered: The law applies to all employers regardless of size. Paid sick leave accrual is required for all non-exempt employees, whether full-time, part-time, or temporary.
  • Covered Absences: Paid sick leave may be used for illness, injury, or preventative care of the employee or the employee’s family members, and for absences relating to domestic violence, sexual assault, or stalking.
  • Accrual: Employees accrue one hour of paid sick leave for every 40 hours worked. Employees do not accrue hours when not working, such as when using paid time off. At least 40 hours of unused leave must carry over to the next year. Employers may frontload paid leave for the year if they do so under a written policy.
  • Use: Employees can use paid sick leave in the smallest time increment that the employer uses when paying wages. These increments must not be greater than an hour unless the employer applies for and receives a variance from the Department of Labor and Industries. Employees accrue paid sick leave beginning immediately, but employers can require them to wait to use it until after 90 days of employment.
  • Rate of Pay: Sick leave must be paid at the greater of (1) minimum wage, or (2) the employee’s “normal hourly compensation.” Normal hourly compensation means the hourly rate the employee would have earned for the time during which the employee used the paid leave, using a “reasonable” calculation.
    • Paid sick time need not be at an overtime rate, even if the hours worked would have been overtime.
    • “Normal hourly compensation” does not include tips, gratuities, and holiday pay, but it does include different rates for different shifts. For example, if an employee takes paid sick leave for a night shift, the employee’s paid sick time is at the night shift rate, even if the employee earns less when working the day shift.
    • For commissioned employees, one reasonable way to calculate “normal hourly compensation” is to average earnings and hours worked for the past 90 days. Other reasonable calculation methods may be permitted.
  • Advance Notice of Leave: Employers may require employees to give ten days’ advance notice for foreseeable uses of paid sick leave, if they have a written policy so stating.
  • Verification: Employers may require verification for absences exceeding three consecutive days, if they have a written policy so stating. The employee cannot be required to provide verification if doing so creates an unreasonable burden.
  • PTO Policies: Paid Time Off “(PTO”) policies that combine paid sick leave with other types of leave, such as vacation, are permissible if they meet all the requirements of the paid sick leave law. If an employee uses all accrued PTO time for purposes other than sick leave, the employer need not provide additional sick leave.
  • Notice: For employees hired after January 1, 2018, employers must provide notice in writing about the paid sick leave law at the time of hire. For employees hired earlier, notice must be provided by March 1, 2018. The Department of Labor and Industries will develop a sample notification policy. At least monthly, employers must provide written notice of the amount of paid sick leave accrued, used, and available for use.
  • Retaliation: Employers may not retaliate against employees for using paid sick leave, which includes not disciplining employees for any absences caused by using paid sick leave.

If you have questions about Washington paid sick leave or would like help reviewing your policy for compliance, please contact any member of Ryan Swanson’s Employment, Labor, and Employee Benefits group.

Shannon Lawless is an attorney in Ryan Swanson’s Employment, Rights & Benefits Group and can be reached at [email protected].

This message has been created by the Employment Rights, Benefits & Labor Group at Ryan, Swanson & Cleveland, PLLC to advise of recent developments in the law. Because each situation is different, this information is intended for general information purposes only and is not intended to provide legal advice on any specific facts and circumstances. Ryan, Swanson & Cleveland, PLLC is a full-service law firm located in Seattle, Washington.

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