1. Initiative Measure No. 1433 — Paid Sick Leave
Employer Requirements and Employee Rights
Washington State Transit Association (WSTA)
Burlington, Washington
November 3, 2017
Nick Burrow – Paid Sick Leave & Anti-Retaliation Specialist
(360)

2. Disclaimer
The intention of this presentation is to help provide the public with guidance to the application of the Washington (WA) State Paid Sick Leave law, taking effect January 1, This presentation is strictly for educational purposes and is not intended to substitute or replace professional legal counsel. The answers provided during this presentation are based on the facts provided and subject to change with the inclusion of other variables.

3. I-1433 History
On November 8, 2016, voters in WA State approved Initiative Measure No (I-1433).
I-1433 increased the WA State Minimum Wage in 2017 & subsequent years, required all tips & gratuities to be paid to employees, provides the Department with the authority to investigate retaliation claims and enforce such provisions, and introduces Paid Sick Leave.
The provisions of I-1433 and the Paid Sick Leave law were written into Chapter RCW – Minimum Wage Requirements and Labor Standards (formerly known as the “Minimum Wage Act”).

4. Paid Sick Leave Effective Date
The Paid Sick Leave law and all applicable rules go into effect on January 1, 2018.

5. Employers Required to Provide Paid Sick Leave
Almost all employers must provide Paid Sick Leave to their employees, unless the employer only has employees who are exempt from Chapter RCW.

6. Employees Eligible for Paid Sick Leave
Most employees will be eligible for Paid Sick Leave. However, some employees may not be eligible because their job duties make them exempt from Chapter RCW.
If a worker is exempt to the definition of “employee” as listed under Chapter RCW, then the worker would be exempt to the Paid Sick Leave law.
For more information on exemptions to the Paid Sick Leave law, please see ES.A.1 — Employment Standards Administrative Policy 1 — Minimum Wage Act Applicability and RCW (3)(a)-(p).

7. Employees Eligible for Paid Sick Leave
A common exemption is a worker who is a bona fide executive, administrative, professional, who is paid a salary.
Examples of what is not considered an exemption:
- Small businesses or employers with few employees
- An employee’s employment status (e.g., part-time, full-time, seasonal, temporary, etc.)
- Student workers
- Substitute teachers
- Collective Bargaining Agreements

8. Paid Sick Leave Accrual
Employees begin accruing Paid Sick Leave on January 1, 2018.
Employees must be provided at least one hour of Paid Sick Leave for every 40 “hours worked”.
Hours worked is defined as “all hours during which the employee is authorized or required by the employer to be on duty on the employer's premises or at a prescribed work place.”
Overtime (OT) hours are considered hours worked, and must be taken into account for Paid Sick Leave accrual purposes.

9. Paid Sick Leave Accrual
Employers are not required to allow employees to accrue Paid Sick Leave for hours paid when not working. Employees only accrue Paid Sick Leave for hours worked.
Example: Employers are not required to allow employees to accrue Paid Sick Leave during vacation, paid time off (PTO), or while using Paid Sick Leave.
There is no cap for the accrual of Paid Sick Leave. Employees must accrue Paid Sick Leave for all hours worked.

10. Use of Paid Sick Leave
An employee is eligible to use their accrued Paid Sick Leave on the 90th “calendar day” of their employment.
Employees who were hired before January 1, 2018, their previous calendar days of employment must be counted towards their eligibility to use Paid Sick Leave.
Example: An employee has 1 year of employment prior to January 1, When the Paid Sick Leave law takes effect, the employee may use their accrued Paid Sick Leave for an authorized purpose as soon as it becomes available.
Closure of the employee’s business and child’s school or place of care due to an “order of a public official for any health-related reason” does not include weather closures.

11. Use of Paid Sick Leave
An employee may use their accrued Paid Sick Leave for the following purposes:
To care for an employee’s self or a “family member” for the following reasons:
- mental or physical illness, injury, or health condition; to accommodate the employee's need for medical diagnosis, care, or treatment of a mental or physical illness, injury, or health condition; or an employee's need for preventive medical care.
2. An employee's place of business, or their child's school, or place of care has been closed by order of a public official for any health-related reason.
3. An employee who qualifies for leave under Chapter 49.76 RCW – Domestic Violence Leave Act.

12. Use of Paid Sick Leave Family member is defined as:
1. A child including:
- a biological, adopted, or foster child, stepchild, or a child to whom the employee stands in loco parentis, is a legal guardian, or is a de facto parent, regardless of age or dependency status.
2. A parent including:
- a biological, adoptive, de facto, or foster parent, stepparent, or legal guardian of an employee or the employee's spouse or registered domestic partner, or a person who stood in loco parentis when the employee was a minor child.
3. A spouse
4. A registered domestic partner
5. A grandparent
6. A grandchild
7. A sibling

13. Use of Paid Sick Leave
Employers must allow employees to use Paid Sick Leave in increments consistent with the employer’s payroll system and practices, but not to exceed one hour.
Example: If an employer’s normal practice is to track increments of work for the purposes of compensation in 15-minute increments, then an employer must allow employees to use Paid Sick Leave in 15-minute increments.
There is no cap for the use of Paid Sick Leave. If an employee has accrued Paid Sick Leave hours, and is using Paid Sick Leave for an authorized purpose, then the employee must be allowed to use such Paid Sick Leave.

14. Paid Sick Leave Carryover
Employers must allow employees to carryover 40 hours of unused, accrued Paid Sick Leave into the following year.
Accrual of Paid Sick Leave in the following year is in addition to the carried over Paid Sick Leave hours from the previous year.
An employer may define year for calculating wages and benefits for carryover purposes.

15. Paid Sick Leave Carryover
Example:
An employee accrues and does not use 52 hours of Paid Sick Leave in The employer caps the employee’s carryover of unused, accrued Paid Sick Leave at 40 hours. The employee begins 2019 with 40 hours of Paid Sick Leave. During 2019, the employee accrues 52 hours of Paid Sick Leave in addition to the unused Paid Sick Leave carried over from If the employee does not use any Paid Sick Leave in 2019, then at the end of 2019 the employee will have a balance of Paid Sick Leave of 92 hours. The employer can choose to cap the employee’s carryover of unused, accrued Paid Sick Leave at 40 hours at the end of If the employer choses to do so, the employee begins 2020 with 40 hours of Paid Sick Leave.

16. Rate of Pay for the Use of Paid Sick Leave
Employers must provide employees using Paid Sick Leave with their “normal hourly compensation” for each hour of Paid Sick Leave used.
Normal Hourly Compensation is defined as “the hourly rate that an employee would have earned for the time during which the employee used Paid Sick Leave.”
For employees who use Paid Sick Leave for hours that would have been OT hours if worked, employers are not required to apply OT standards to the employee’s normal hourly compensation. In addition, normal hourly compensation does not include tips, gratuities, service charges, holiday pay, or other premium rates, unless the employer or a Collective Bargaining Agreement allows for it.

17. Rate of Pay for the Use of Paid Sick Leave
For employees using Paid Sick Leave that are paid other than an hourly rate, employers must calculate and provide the employee’s hourly rate that they would have earned for the time they used Paid Sick Leave.
An employer must apply a consistent methodology when calculating the normal hourly compensation of similarly-situated employees.
The Department offers examples for calculating the rate of pay for employees using Paid Sick Leave that are paid other than an hourly rate under WAC (2)(a)-(d).

18. Rate of Pay for the Use of Paid Sick Leave
Example:
“For a nonexempt employee paid a salary, dividing the annual salary by fifty-two to determine the weekly salary, and then dividing the weekly salary by the employee's normal scheduled hours of work”— WAC

19. Rate of Pay for the Use of Paid Sick Leave
Example:
“For an employee whose hourly rate of pay fluctuates:
- Where 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;
- Where 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 days, whichever yields the higher hourly rate.” — WAC (d)(i)-(ii)

20. Notification to Employers for Use of Paid Sick Leave
An employer may require an employee to provide notification for the authorized use of Paid Sick Leave, so long as the employer’s notification policy does not interfere with the employee’s lawful use of Paid Sick Leave.
If an employer requires an employee to provide notification for the authorized use of Paid Sick Leave and the employee’s use of Paid Sick Leave is foreseeable, the employee must provide notice at least 10 days in advance, unless the employer allows for a lesser requirement.

21. Notification to Employers for Use of Paid Sick Leave
If an employer requires an employee to provide notification for the authorized use of Paid Sick Leave, and the employee’s use of Paid Sick Leave is unforeseeable, the employee must provide notice to their employer as soon as possible before the required start of their shift, unless the employee is unable to do so.
Example: An employee is injured the night before a scheduled shift in a car accident. The employee is hospitalized as a result. Due to this reason, the employee is unable to provide notification to their employer that they are using their accrued Paid Sick Leave.
In the event that the employee is unable to provide notice to their employer, a person on the employee's behalf may provide notice to the employer.

22. Notification to Employers for Use of Paid Sick Leave
If an employer requires an employee to provide notification for the authorized use of Paid Sick Leave under Chapter 49.76 RCW – Domestic Violence Leave Act, the employer’s notice requirements must comply with the provisions outlined in WAC

23. Verification for Use of Paid Sick Leave for Absences Exceeding Three Days
"Absences exceeding three days" means absences exceeding three consecutive days an employee is required to work.
If an employer requires verification from an employee for the use of Paid Sick Leave exceeding three days, an employer's requirements for verification may not result in an unreasonable burden or expense on the employee.
If an employer requires an employee to provide verification from a health care provider, such requirements may not exceed privacy or verification requirements otherwise established by law.

24. 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 for the Paid Sick Leave used, but may not deduct those hours from an employee's legitimately accrued, unused Paid Sick Leave.
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 of Paid Sick Leave was for an authorized purpose, the employee may file a complaint with the Department.

25. Frontloading Paid Sick Leave
Employers who choose to frontload Paid Sick Leave to their employees, must ensure that the frontloaded Paid Sick Leave meets or exceeds all requirements of the law and all applicable rules.
If an employer frontloads Paid Sick Leave to their employees, they must ensure that the frontloaded Paid Sick Leave covers the hours of Paid Sick Leave that their employees are projected to accrue.
If an employer frontloads Paid Sick Leave and it is less than the amount an employee was entitled to accrue, the employer must correct the difference no later than 30 days after identifying the discrepancy.

26. Frontloading Paid Sick Leave
If an employee uses more frontloaded Paid Sick Leave than what they would have accrued, the employer is not allowed to seek reimbursement from the employee during the course of ongoing employment.
If an employee uses more frontloaded Paid Sick Leave than what they would have accrued and there is a separation of employment, an employer may deduct from the employee's final wages if a policy or agreement was established prior allowing for such a deduction.

27. Providing Paid Sick Leave in the Form of PTO
If an employer chooses to provide Paid Sick Leave in the form of a Paid Time Off (PTO) program or policy, the program or policy needs to meet or exceed all requirements of the law and all applicable rules.
If an employer chooses to provide Paid Sick Leave in the form of a PTO program or policy, they are not required to provide additional PTO in the event that an employee uses all of their PTO bank, regardless if the employee used it all for purposes not designated by the law.
Example: An employee uses all of their PTO bank to go on vacation to Hawaii. When the employee returns to work, they claim that they are sick and request more PTO to cover the time they plan to miss. If the employer has met their obligations of providing PTO according to the law and all applicable rules, the employer is not required to provide additional PTO to the employee.

28. Separation of Employment & Rehiring Within 12 Months
An employer is not required to provide employees with financial or any other type of reimbursement for unused, accrued Paid Sick Leave in the event of a separation of employment.
If an employee is rehired within 12 months of separation, at the same or different business location of the employer, the employer must reinstate any unused accrued Paid Sick Leave from the previous period of employment.
If an employee is rehired within 12 months of separation, at the same or different business location of the employer, the previous calendar days of employment must be counted for purposes of determining the employee’s eligibility to use Paid Sick Leave.

29. Employer Notification to Employees
Employers must notify each employee when the law takes effect or by the day of hiring:
1. of their entitlement to Paid Sick Leave
2. the rate at which the employee will accrue Paid Sick Leave
3. the authorized purposes under which Paid Sick Leave may be used
4. that retaliation by the employer is unlawful
Employers must provide each employee every month with a written or electronic notification detailing the amount of Paid Sick Leave accrued and the Paid Sick Leave reductions since the last notification and any unused Paid Sick Leave available for use by the employee.
The poster titled “Your Rights as a Worker in Washington State” will need to be positioned in a readily accessible location, within plain sight, at each workplace.

30. Cities with Existing Paid Sick Leave Ordinances
Employers with employees who work in cities that already have a Paid Sick Leave law in place (e.g., Seattle, Tacoma, SeaTac, Spokane) will need to apply the minimum standards which are more favorable to employees.

31. Retaliation
It is unlawful for an employer to interfere with, restrain, or deny the exercise of any employee right provided under or in connection with chapter RCW.
It is unlawful for an employer to adopt or enforce any policy that counts the use of Paid Sick Leave for an authorized purposed under RCW as an absence that may lead to or result in discipline by the employer against the employee.
It is unlawful for an employer to take any adverse action against an employee because the employee has exercised their rights provided under chapter RCW.

32. Retaliation Examples:
Denying use of, or delaying payment for, Paid Sick Leave, minimum wages, OT wages, all tips and gratuities, and all service charges, except those service charges itemized as not being payable to the employee or employees servicing the customer;
Terminating, suspending, demoting, or denying a promotion;
Threatening to take, or taking action, based upon the immigration status of an employee or an employee's family member.

33. Thank you!
Contact Information:
Nick Burrow – Paid Sick Leave Specialist
(360)