I-1433 FAQ

I-1433 FAQ https://wahospitality.org/wp-content/uploads/2017/12/shutterstock_420798184.jpg

I-1433: PAID SICK LEAVE
FREQUENTLY ASKED QUESTIONS

These frequently asked questions are a starting point to help answer some of your basic questions. If you have any additional, more in-depth questions, please consult an employment attorney.

1. How do I even do this?

  • With the Washington Hospitality Association’s Paid Sick Leave Toolkit, you are starting in the right place. The links provided in the toolkit offer a good place to start.
  • For further consultation, policy design or review, and detailed questions please contact an employment lawyer.

2. Is Paid Sick Leave different than vacation leave?

  • Yes. Paid sick leave is different than vacation or personal time off.
  • Caveat: An employer may choose to have “one bucket” of paid time off and combine paid sick leave with vacation; however, such a policy still must comply with the paid sick leave law and all of its rules, such as an accrual rate of at least 1 hour of paid sick leave for every 40 hours worked, allowing at least 40 hours to be carried over, and no annual cap on use or accrual.
  • For additional questions about combining leave, contact an employment lawyer or the Advisory Network for more detailed information.

3. Does the new paid sick leave law apply to all sizes of businesses?

  • Yes. Paid sick leave applies to all businesses operating in Washington regardless of size or the number of employees.

4. Are there any exemptions based on gross annual revenue or employee count?

  • No. There are no exemptions for any businesses under I-1433.

5. Is it just for businesses with more than 50 employees?

  • No.

6. Do I need to offer paid sick leave to my salaried employees?

  • That depends. You must offer paid sick leave to your salaried employees at a rate of at least 1 hour for every 40 hours worked unless they are specifically exempt from the new law. Types of workers who are exempt from paid sick leave under the law include:
    • Any individual employed in a bona fide executive, administrative, or professional capacity, or employed as an outside salesperson. (In other words, if the employee meets one of these fact specific legal tests for Washington’s overtime pay exemption.)
    • Any individual employed as a hand harvest laborer and paid on a piece rate basis in an operation which has been and is recognized as paid on a piece rate basis, who commutes from their private residence to the farm where they are employed, and who has been employed in agriculture less than 13 weeks during the preceding calendar year.
    • Any individual employed in casual labor in or about a private home, unless performed in the course of the employer’s trade, business, or profession
    • Additional definitions of the exemptions may be found here (RCW 49.46.010)

7. When must I let employees use their accrued paid sick or safe leave?

  • The waiting period can be no more than 90 days of continuous employment. This includes employees who may have started work before Jan. 1, 2018. Employers may adopt a shorter waiting period if they choose.
  • Paid Sick and Safe Leave accrual must begin on Jan. 1, 2018, or the date of hire for all eligible employees at the rate of 1 hour for every 40 hours worked.

8. Would employees who have already been in employment for 90 days prior to Jan. 1, 2018 have to wait 90 days to use their paid sick leave?

  • No. If an employee has been employed for more than 90 days prior to Jan. 1, 2018, they may use paid sick leave as soon as they have accrued it.

9. What if an employee wants to use leave before they have accrued enough time to cover their entire shift?

  • An employee is only entitled to use paid sick leave for the length of their scheduled shift, and only up to the amount of paid leave already accrued.
  • Example: Employee A has worked for a restaurant since August 2017 (i.e., for more than 90 days). The first week of January 2018, she works 40 hours and thus accrue 1 hour of paid sick leave. The next week, Employee A gets sick and calls out for her 8-hour shift. The employer would pay Employee A for the one hour of paid sick leave she has accrued, and the other 7 hours of the shift would be unpaid.
  • An employer could choose to allow employees to go negative in their paid sick leave bank, however, this can raise other legal issues. For example, Washington has rules regarding paycheck deductions for a negative PTO balance that might be triggered.

10. How must employers track paid sick and safe leave?

  • Employers must allow paid sick leave to be used in whatever increment they track time worked on payroll system, not to exceed one hour.
  • Example 1: If an employer’s normal practice is to track increments of work for the purposes of compensation in fifteen-minute increments, then an employer must allow employees to use paid sick leave in fifteen-minute increments.
  • Example 2: If an employer tracks payroll by the minute, and an employee is 20 minutes late for covered sick leave reasons, they may use 20 minutes paid sick leave if available.
  • Caveat: There are also wage-hour rules about how much you can round up or down time worked. If you have additional questions about your rounding practices, contact an employment lawyer for clarification.

11. Can I frontload?

  • Yes, but an employer can only frontload in advance of the accrual, and the amount must be equivalent to what the employee otherwise would have accrued at the rate of 1 hour for every 40 hours worked. The policy must also meet all of the law’s other requirements. We suggest you work with an employment lawyer if you want to adopt a frontloading policy.

12. What happens to the accrued time when an employee quits or gets terminated?

  • Employers must state what will happen to unused leave at separation of employment in their written policy. If you do not include these provisions in your policy, the default is that you must pay out the paid sick leave when the employee leaves employment.

13. Can I pay out my employee’s paid sick leave every pay period instead of letting it accrue and build up?

  • No. The only pay out that is allowed is (1) if you choose to (or may be required to under SeaTac’s law) pay out unused accrued hours at the end of the year that exceed the minimum 40 hour carry over, or (2) you choose to pay out unused accrued hours at separation of employment.

14. What do I do if I rehire an employee within 12 months? How does paid sick leave work?

  • If you rehire an employee within 12 months and did not cash out his paid sick leave balance at the time of termination, you must reinstate the amount of paid sick leave he had accrued before he left. The leave may be used immediately if he had been previously employed for at least 90 days.
  • Example: Employee B was hired in January 2018. She worked full-time and accrued 20 hours of paid sick leave by the time she left employment in June. Employee B was not cashed out of her paid sick leave balance when she left. Employee B was rehired in February 2019 and her previously accrued 20 hours of paid sick leave is reinstated. The paid sick leave is available to use right away because Employee B has already been employed for over 90 days.

15. For tipped employees, do tips count towards the rate of paid time off?

  • No. For each hour of paid sick leave used, an employee must be paid the greater of the applicable minimum hourly wage or their “normal hourly compensation.” An employer must calculate an employee’s normal hourly compensation using a reasonable calculation based on the hourly rate that an employee would have earned for the time during which the employee used paid sick leave. However, tips are not included.
  • For employees who are paid other than hourly, such as piece rate or commissioned, the calculations are more complex. For example, for an employee paid partially or wholly on a commission basis, it would be acceptable to divide their total earnings by the total hours worked in the full pay periods in the prior 90 days of employment to arrive at their “normal hourly compensation.”

16. Can an employer request a doctor’s note to prove illness?

  • Yes, but an employer must have a written policy stating so. The employer also cannot require a doctor’s note unless an employee has missed 3 consecutive scheduled days of work.
  • An employer-required verification also may not result in an unreasonable burden or expense on the employee.
  • There are different rules for survivors of sexual assault or domestic violence.
  • Example: Employee C is scheduled to work Monday, Wednesday, and Friday. If Employee C calls out sick for their Monday, Wednesday, and Friday shifts, the employer may not require verification of the illness until Employee C calls out the following Monday.

17. Is there a cap on annual accrual or annual use?

  • No. There is no cap on annual accrual. There is also no cap on the annual use of accrued hours
  • The minimum amount of leave that may be carried over per year is up to 40 hours.
  • Seattle has also recently removed the cap on accrual and use to comply with state law.

18. With the Spokane Sick and Safe sunsetting, do employers have to roll over hours from last year with new law?

  • Everyone must follow old the Spokane law until Dec. 31.
  • Yes – Employers must roll over the hours earned from Dec. 31.
  • Employers must follow any current policy.
  • Hours rolled over under the Spokane law cannot be used to meet a frontloading policy under the new Washington law. These are counted as extra hours.

19. Seattle, Tacoma and SeaTac have more generous paid sick leave policies. Which do I need to follow?

  • If the local jurisdiction has a more generous paid sick leave policy than the state policy, you must follow the local paid sick leave policy if it is more generous than the state policy.
  • For more information about Seattle, click here.
  • For more information about Tacoma, click here.
  • For more information about SeaTac, click here.

20. Can an employer delay a paycheck when paid sick leave is used?

  • No. An employer must pay sick leave during the same pay period of when the paid sick leave is used.

21. Does an employee need to request that they want to use their accrued hours either verbally or in writing?

  • No. It is sufficient for an employee to call out sick.
  • Employers also cannot require employees to find a replacement for their shift or to swap shifts.
  • Example: If Employee D calls out sick on Thursday, and has paid sick leave available, the employer should pay the employee any available paid sick leave hours in their paycheck for equivalent to the scheduled shift period and deduct that amount from their paid sick leave bank.

22. Do we have examples of record keeping?

  • No. Under the law, all employers must keep and preserve the required payroll records in addition to:
    • Paid sick leave accruals each month, and any unused paid sick leave available for use by an employee;
    • Paid sick leave reductions each month including, but not limited to: paid sick leave used by an employee; paid sick leave donated to a co-worker through a shared leave program; and, paid sick leave carried over to the following year.
    • The date of commencement of the employee’s employment.
  • For additional information about record keeping, contact your bookkeeper or accountant.

23. If I have a more generous paid sick and safe leave accrual do I need to do anything?

  • Yes. The law includes additional employee notification requirements.
  • Although accrual of paid sick leave begins Jan. 1, 2018 and states that a formal policy must be given to employees by March 1, 2018, it does not mean you can or should wait to implement and notify your employees of the paid sick leave policies. It is better to provide your employees with your paid sick leave policy as soon as possible.

To visit the I-1433 Paid Sick Leave Toolkit, click here.

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