I-1433 Rules Summary

I-1433 Rules Summary

Definitions

Clarifications have been made to the following:

  • Absences exceeding three days: Three consecutive days an employee is scheduled to work.
  • Health-related reasons: A serious public health concern that could result in bodily injury or exposure to an infectious agent, biological toxin, or hazardous material.
    • Does not include closures for inclement weather.
  • Normal hourly compensation: The hourly rate that an employee would have earned for the time the employee used paid sick and safe leave.
    • Does not include tips, gratuities, service charges, holiday, or other premium rates.
  • Workweek: A fixed and regularly recurring period of 168 hours, or seven consecutive 24-hour periods. It may begin on any day of the week and any hour of the day.
  • Year (related to paid sick leave): A fixed consecutive 12 month period established by an employer’s policy or collective bargaining agreement (CBA), and used in the ordinary course of the employer’s business for the purpose of calculating wages and benefits.
    • The default is calendar year.

Certificate for Workers with Disabilities

Who.  Employers who hire workers with disabilities may apply for a certificate to pay them a subminimum wage. “Worker with a disability” refers to an individual whose earning capacity is impaired by age or physical or mental deficiency or injury for the work s/he is to perform.

Application.  Application forms will be made available by the Department of Labor and Industries (L&I). The application must be signed by the employer and worker and will include: the nature of the disability, a description of the worker’s occupation, and the proposed wage. It must be shown that a subminimum wage is necessary to prevent the curtailment of the worker’s opportunities for employment and earning capacity.

Rate.  The sub-minimum wage rate cannot be less than 75 percent of the minimum wage (unless clearly justified) and a worker cannot be paid less than 1.5 times the regular overtime rate.

Authorization Notification.  Authorized certificates will be mailed to the employer and worker and are effective for the period designated by the Director of L&I. If an application is denied, the employer and worker will be given written notice.

 

Paid Sick Leave

Accrual.  Employees must accrue one hour of sick leave for every 40 hours work. However, employers are not required to allow employees to accrue paid sick leave for hours paid when not working (e.g. vacation time).

Carry Over.  Employees must also be allowed to carry over 40 hours of accrued, unused leave each year. It’s important to note that accrual in the subsequent year is in addition to the 40 hours. This means that an employee may have more than 40 hours of accrued leave recorded on their payroll forms, but does not mean an employer is required to allow an employee to take more than 40 hours of leave per year.

Usage.  An employee is entitled to use accrued, unused paid sick leave beginning on the 19th calendar day after their employment commences. Employers must allow employees to use leave in increments consistent with the employer’s payroll system and practices, not to exceed one hour. They must also make leave available for use in a manner consistent with the established payment interval or leave records system, not to exceed one month after accrual.

Variances & CBA Waiver.  If an employer can establish that compliance with the requirements is infeasible and do not have significant harmful effects to employees, the Department of Labor and Industries (L&I) may grant a variance for “good cause.” Conflicts with a collective bargaining agreement (CBA) would be considered “good cause.” To seek a variance, an employer or union must submit a written application to L&I. The decision by L&I must be made and provided in writing within 60 days of receipt of the application. If granted, an employer has 15 days to notify their employee of the variance.

Pay Rate.  For each hour of sick leave used, an employee must be paid their normal hourly compensation. If an employee’s normal hourly compensation rate varies (i.e. commission; piece rate; salary), the employer must calculate an employee’s normal compensation using a reasonable calculation based on the hourly rate that an employee would have earned if they were not on leave.

For example:

(1) If an employee is paid by commission, divide their total earnings by the total number of hours worked in the full pay periods during their prior 90 days of employment.

(2) For nonexempt employees paid a salary, divide their annual salary by 52 to determine their weekly salary, and then divide their weekly salary by the employee’s normal scheduled hours of work (e.g. 8 hours).

Payment of Benefits.  If employers do not require verification for absences exceeding three days, employers must pay sick leave to an employee on payday for the pay period in which the sick leave was used. If verification is required, sick leave must be paid to the employee on payday for the pay period during which the verification is provided by the employee to the employer.

Rehire Accrual Requirements.  If an employee separates from employment after 90 calendar days and is rehired by the same employer (regardless of business location) within 12 months, the employer must reinstate previously accrued, unused paid sick leave and notify the employee of the amount available for use. If the period of separation from employment extends into the next year (e.g. 2017 to 2018), the employer is not required to reinstate more than 40 hours. It’s important to note that an employer is not required to provide financial or other reimbursement for accrued, unused paid sick leave when an employee separates from employment.

Paid Time Off (PTO) Programs.  If an employer has a PTO program (i.e. a program that combines vacation, sick, and other forms of leave into one pool) that meets or exceeds the requirements of the State’s paid sick leave program, providing additional paid time off is not required.

Shared leave.  An employer may establish a shared paid sick leave program in which employees may choose to donate paid sick leave to co-workers. The program must be included in written policy.

Shift swapping.  An employer cannot require employees to search for or find a replacement worker to cover the hours during which an employee is using paid sick leave. However, if mutually agreed upon by the employer and employee(s) involved, an employee may work additional hours or shifts or trade shifts with another employee in lieu of using available paid sick leave.

Frontloading.  An employer may choose to frontload paid sick leave to an employee in advance of accrual.

Third-party administrators.  Employers may contract with a third-party administrator to administer the paid sick leave requirements.

Unauthorized Use.  If an employer can demonstrate that an employee’s use of paid sick leave was for an unauthorized purpose, the employer may withhold payment of paid sick leave for those hours, but may not deduct the hours from an employee’s accrued, unused paid sick leave hours. The employer must provide employees with written notice of withheld payments for unauthorized uses. The employee may file a complaint with the Department of Labor and Industries if they believe the use is authorize.

Employer Notification & Reporting Requirements. Employers must provide written or electronic notice to each employee of their rights to paid sick leave, the rate at which the employee will accrue paid sick leave, the authorized purposes for use, and that retaliation by the employer for the employee’s lawful use of paid sick leave is prohibited under chapter 49.46 RCW. At least once a month, Employers must also provide each employee with written or electronic notice of the amount of paid sick leave accrued and reduced, and any unused leave available. This information may be provided on regular payroll statements.

Retaliation.  An employer may not retaliate for an employee’s lawful use of paid sick leave under chapter 49.46 RCW.

Payroll Records Requirement

Employers must keep all applicable payroll records. Payroll record requirements remain the same, but now must also include:

  • Paid sick leave accruals each month, and any unused paid sick leave available;
  • Paid sick leave reductions, and;
  • The date a worker’s employment commenced.

Written Policy Samples

If an employer is required to have a written policy, the Department of Labor and Industries will provide sample policies on their website.

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Categories: Washington State