State law now requires all Washington employers to provide paid sick and safe leave for all non-exempt employees. This new entitlement was passed by voter initiative in 2016 and is codified at RCW 49.46.200-.210, making it part of Washington’s Minimum Wage Act. The law took effect on January 1, 2018.
Unlike many other employee protections, this law does not exclude employees covered by a collective bargaining agreement. Unionized employees are accordingly entitled to the same paid sick leave as their non-unionized counterparts, and the employer – not the union – is responsible to provide these entitlements.
While the law is relatively short, the Washington State Department of Labor & Industries has issued a series of regulations and sample policies. As a general overview, the combined law and regulations provide the following.
• Accrual: Employees accrue at least one hour of paid leave for every 40 hours worked. There is no cap on accrual, and employees must accrue paid leave for all hours worked.
• Usage: Employees can begin using their accrued paid leave on the 90th calendar day after the start of their employment.
Once eligible, employees may use leave for:
› Mental/physical illness, injury, or health condition of the employee or an employee’s family member (including preventative medical care and treatment);
› Closure of an employee’s place of business or the school/ place of care for an employee’s child when that closure is ordered by a public official for any health-related reason;
› Absences that qualify for leave under Washington’s Domestic Violence Leave Act.
• Cap & Carryover: There is no cap on the amount of accrued paid leave an employee can use. Any accrued and unused leave available to an employee must be carried over to the following year, but the amount carried over can be limited to 40 hours. Leave accrued in the following year is in addition to the hours carried over.
• Payment: Employees shall be paid their normal hourly compensation when taking paid leave.
• Notification: Employers must notify employees that they are entitled to paid leave, the rate at which paid leave will be paid, the authorized purposes for using paid leave, and a reminder that retaliation is prohibited against employees using paid leave. For existing employees, notice must be provided no later than March 1, 2018. For new employees, notice must be given when hired. Employers must also provide ongoing (at least monthly) notification of an employee’s accrued leave, amount used since the last notice, and the total amount of paid leave available to the employee.
• Reinstatement: If an employee is rehired by the same employer within 12 months, the employee’s unused paid sick leave must be reinstated. While not required, an employer can avoid the reinstatement obligation if it pays out unused leave at separation.
The law gives employers some options in creating their own paid
leave practices, but in most cases, the law requires employers
to publish its particular policy so that it is easily accessible to
employees. For example, employers may require employees to
give reasonable notice for planned and unplanned absences but
only if the employer publishes a written policy or collective
bargaining agreement outlining the notice requirements. The
same option applies to employers that want an employee to
verify any absences exceeding three consecutive days. The
law gives employers choices in other aspects like frontloading
leave, universal PTO policies, shared leave programs, and third
party administrators.
Cities like Seattle, Tacoma, and SeaTac already have paid sick and safe leave laws in effect. These laws still apply, so employers located in these cities or who employ workers within these cities will have to compare both local and state law and apply the portion of the law that is more favorable to the employee. In Seattle, for example, employees who work for large employers (250+ employees) accrue paid leave at the higher rate of one hour for every 30 hours worked.
Washington’s new law is a good reminder that employment law and regulations rapidly change in Washington. Employers are wise to frequently review and update their employee policies and manuals to avoid regulatory investigations or employee litigation.
Karen Galipeau Forner is the founder and managing member of K-Solutions Law in Bellevue, Washington. Karen represents employers in the areas of workplace safety, workers’ compensation, administrative appeals, and employment law. She is a frequent presenter at continuing legal education seminars and to employer groups. Karen has over 25 years’ experience defending and resolving a wide range of workers’ compensation, WISHA, and employment law matters. Prior to starting K-Solutions Law, Karen worked as senior attorney at a law firm in Seattle and for the Washington State Attorney General’s Office. She was the Program Advisor for the Industrial Insurance and Washington Industrial Safety and Health Act (WISHA) Discrimination Programs for more than 10 years and the Program Advisor for the Workers’ Compensation Sren also litigated complex WISHA, Industrial Insurance, Third Party, and Crime Victims Compensation Act cases. She recently served on the Washington State Bar Association Character and Fitness Board.