Paid Sick Leave Starts January 1

As an earlier blog (Paid Sick Leave and Initiative 1433) noted, starting January 1, 2018, all employers in the state, including all local government agencies, must provide paid sick leave for their employees. The basic requirements for the paid leave are set out by Initiative 1433; implementing rules are being drafted by the Department of Labor and Industries. Version 2 of the draft rules was released for review and comment on May 19, 2017. Hearings around the state were scheduled during August and the final rules are scheduled to be filed on October 17, 2017.

This blog article responds to some possible questions about the new paid sick leave requirements. The answers rely on the initiative language itself and the draft rules that existed on May 19. It is important to note, the draft rules will undoubtedly be changed after the Department of Labor and Industries completes its public hearings and its review of written comments. Assuming there are changes to the draft rules, there may be some changes to the answers set out below. I will update the information when the rules become final.

Must an agency provide paid sick leave for part-time or seasonal employees? Yes, in most instances. An employee is defined as any individual employed by an employer, with a few exceptions that might apply to a local government. For example, executive, administrative and professional employees are exempted, as are volunteers, independent contractors, and elected and appointed officials. Part-time and seasonal employees are not exempt.

Are small agencies exempt from the paid sick leave requirement? No. Although comments have been submitted suggesting an exemption for smaller jurisdictions, such as those with fewer than twenty employees, neither the initiative nor the draft regulations provide for such an exemption.

How is sick leave accrued? An employee earns one hour of sick leave for every 40 hours worked, beginning January 1, 2018. The time an employee is on vacation, paid time off, or on sick leave is not counted for accrual purposes.

When does an employee become eligible to take sick leave? An employee may take sick leave after the ninetieth calendar day following the date of employment. An employer’s policy can provide for earlier use. If an employee separates from service prior to the ninetieth day and is rehired within a year, the previous days of employment are considered when determining eligibility to take sick leave.

For what purposes may paid sick leave be used? An employee may use paid sick leave to care for their own health needs or those of a family member, if the employee’s work or child’s school has been closed for a health-related reasons, and for absences under the state’s Domestic Violence Leave Act.

Does sick leave carry over from one year to the next? Yes, although an employer can cap the amount of carryover to 40 hours. Hours earned the following year would be added to the total but the carryover to the following year would still be capped at 40 hours (unless the employer’s policy is more generous).

If an employee needs to take sick leave, what notice must be given? The regulations require “reasonable notice and an employer can use its notification policy so long as the policy does “not interfere with an employee’s lawful use of paid sick leave.” If the reason for sick leave is foreseeable, notice should be given as early as practicable, but the employer cannot require that the notice be given more than 14 calendar days in advance of the planned sick leave use.

May an employer require that an employee find a replacement worker before he or she can use paid sick leave? No.

Can an agency require an employee who has been on sick leave to verify the reason for the absence? Yes, if the absence is for more than three days, provided there is a written policy or union agreement outlining the requirement and that policy has been provided to all employees.  The verification requirement cannot result in “an unreasonable burden or expense on the employee.” If the employee believes that the verification will cause an unreasonable burden or expense, he or she must be allowed to submit a written justification explaining why compliance is not possible. If after review the employer agrees that the verification will create an unreasonable burden or expense, it must make a reasonable effort to identify alternatives, and those might include a personal written statement explaining the need for the use.

Since the sick leave is paid, what pay rate is used? The employee is paid his or her normal hourly compensation that would have been paid during the time of the leave. If the employee is nonexempt and is paid a salary, the rate is determined by dividing the annual salary by 52 to get the weekly salary and then dividing that amount by the employee’s normal scheduled hours of work. Special rules apply if the employee’s schedule fluctuates.

If an employee quits employment and is later rehired, is his or her balance of accumulated sick leave restored? Yes, provided the employee is rehired within 12 months of his or her separation. If the date of rehire is after one year, the employer need not reinstate any previously accrued and unused paid sick leave.

Our jurisdiction provides payment of a portion of accumulated and unused sick leave when an employee leaves; if the employee returns, must we restore the sick leave balance, even though the employee received a partial payout of the accumulated sick leave? Maybe. If the agency’s policy is to provide a payout upon separation, the employee and employer must mutually agree in writing to the terms of the reinstatement of the leave balance, if any.

Our agency provides paid time off (PTO) instead of sick leave.  Does a PTO plan satisfy the paid sick leave requirements? Yes, if the PTO meets or exceeds the new paid sick leave statutes and rules.

We have an employee who we suspect is improperly taking sick leave (is always “sick” on Fridays or Mondays); if we can prove inappropriate use of paid sick leave, must we still pay for the sick leave taken?  No. But if the employee disagrees, there must be a mutual agreement to resolve the issue. If no mutual agreement can be reached, the employee can file a complaint with the Department of Labor and Industries.

What type of notice is required to let employees know about the agency’s paid sick leave policy? Employers must provide employee with notification in written or electronic form of the entitlement to paid sick leave, the rate at which paid sick leave will accrue, the authorized purposes for use of paid sick leave, and that there will be no retaliation for the lawful use of sick leave. The employer must at least monthly notify its employees of the amount of their paid sick leave accrual, the use of sick leave since the last notice, and the balance of sick leave available for use.

What are the recordkeeping requirements? The employer must maintain records showing monthly accruals, the amount of unused paid sick leave available, reductions due to sick leave use or donation of sick leave through a shared leave plan, paid sick leave not carried over to the following year, and the date the employees began their employment.

Important Reminder

The answers to the questions set out above are based upon the draft rules that existed on May 19, 2017. There will almost certainly be changes before the final rules are filed on October 17. This blog will be revised when changes are made.

Questions? Comments?

If you have questions about paid sick leave or other local government issues, please use our Ask MRSC form or call us at (206) 625-1300 or (800) 933-6772. If you have comments about this blog post or other topics you would like us to write about, please email me at psullivan@mrsc.org.