Eye on Hospitality: Get Ready for Paid Sick Leave

Eye on Hospitality: Get Ready for Paid Sick Leave

By Paul Schlienz

Paid sick leave is coming to Washington state, effective Jan. 1, 2018, and it is essential that all employers get prepared. While the state Department of Labor and Industries will issue the rules on paid sick leave in late 2017, here a few of the highlights of the new law.

  • All non-exempt employees, as defined under the Washington Minimum Wage Act, are entitled to accrue paid sick leave starting Jan. 1. These employees include all full-time, part-time, seasonal, temporary, on call/substitute workers and minors. There is no minimum number of required employees or an exception for small-businesses.
  • All eligible employees must accrue, at minimum, one hour of paid sick leave for every 40 hours worked. Also, this is not 40 hours in a week or pay period, it is every 40 hours worked. There is no cap on accrual, however, an employee may only carry over 40 hours of sick leave per year. Unlike various local laws, there is no cap on usage.
  • Employees may use their accrued sick leave for absences related to: An employee’s or a family member’s mental or physical illness, injury or health condition; need for medical diagnosis, care or treatment or preventative medical care; when a workplace or an employee’s child’s school or daycare has been closed by order of a public official for any health-related reason; or when leave is needed as defined under the state’s domestic violence leave laws.

  • Employees may generally be eligible to start using leave beginning on their 90th day of employment. For existing employees as of Jan. 1, 2018, they may be eligible to use paid sick leave once they accrue the time – i.e., after the first 40 hours worked – assuming they have worked 90 days.
  • All employers must allow paid sick leave in increments of one hour. If an employer’s payroll system tracks increments of work in less than one hour increments, leave must be offered in increments consistent with the payroll system.
  • Employers must allow employees to use paid sick leave in one hour increments, or increments that are consistent with the employer’s payroll system and practices. The increments of leave that will be allowed are one hour.
  • Alternately, if employers track compensation in increments of less than an hour, then they must use the same increment for leave. One exception to this rule is if payroll tracks increments of work for compensation purposes in 15-minute increments. In those cases, leave will be able to be used in 15-minute increments.
  • Additionally, employers will be able to seek a variance for “good cause.” “Good causes” include cases where it’s not feasible to comply with the use increment. Cases where variance will not cause significant harmful effect on health, safety, welfare of employees can be viewed as “good causes.” Cost-benefit analysis may be a factor supporting good cause.
  • In paying paid sick leave, employers must pay the “normal hourly compensation” for each hour of paid sick leave used by the next pay day. For any employees this means the hourly rate employees would have earned for the time they were on leave, excluding tips, service charges or overtime rates.
  • For employees who are scheduled to work a shift of indeterminate length (e.g., a shift that is defined by business needs rather than a specific number of hours), the rate of pay may be calculated by multiplying the employee’s normal hourly compensation by the total hours worked by a replacement employee in the same shift, or similarly situated employees who worked that same or similar shift.
  • An employer may not require, as a condition of an employee using paid sick leave, that the employee search for or find a replacement worker to cover the hours during which the employee is using paid sick leave. Upon mutual agreement by the employer and the employee(s) involved, an employee may work additional hours or shifts, or trade shifts, with another with another employee, in lieu of using available paid sick leave for missed hours or shifts that qualify for the use of paid sick leave.
  • At beginning of employment, after Jan. 1, 2018, or by March 1, 2018, for existing employees, employers must notify each employee in writing of their right to paid sick leave, the rate of accrual, permissible uses, that retaliation is prohibited, details on if verification is required for absences over three days, and if notice is required for use of leave, frontloading, etc. At least monthly, employers must provide an accounting of accrued sick leave, used sick leave and available sick leave through regular payroll or otherwise.

This article is an overview of some of the highlights of the new paid leave law.  It is important to note that local laws supercede the state law when more generous to the employee.

ADDITIONAL RESOURCES

L&I’s draft sample policies.

A video, featuring Catharine Morisset, Fisher Phillips employment and litigation partner, and Margaret Burnham, employment litigation attorney, on details of the new law. Please note that the content in this article is heavily based on a recent webinar on paid sick leave presented by Jackson Lewis’s Sherry L. Talton and Bryan P. O’Connor.

Seattle’s Office of Labor Standards will be holding webinars on updates to the city’s paid sick and safe time and how it fits with state requirements. Learn more here.

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