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Washington Paid Sick and Safe Leave Law & Family and Medical Leave Insurance Program

11/01/18

Author: ADP Admin/Wednesday, October 31, 2018/Categories: Washington

Overview: Since January 1, 2018, all Washington employers, regardless of size, have been required to provide their employees paid sick and safe leave (“PSSL”). Starting in 2020, Washington will be the fifth state in the nation to offer paid family and medical leave benefits to workers. As directed by the Legislature, premium payments begin on January 1, 2019 and benefits can be taken starting January 1, 2020. For a quick reference guide on the differences between PSSL and Paid Family and Medical Leave, click here.

Effective Date: January 1, 2018 Paid Sick Leave

January 1, 2019 Payroll Deductions for Family and Medical Leave Insurance Program
January 1, 2020 Benefits Available for Family and Medical Leave Insurance Program

Details:

Paid Sick Leave:
Washington has joined the growing list of jurisdictions requiring employers to provide paid sick leave to employees. Since January 1, 2018, all Washington employers, regardless of size, have been required to provide their employees PSSL.

Which Employees are Covered?
In general, every non-exempt employee engaged in employment “within the state of Washington” is entitled to PSSL. This includes part-time and seasonal workers.

How Much Leave?
Beginning on their first day of employment, employees accrue one hour of PSSL for every 40 hours actually worked. Employees may start using the accrued PSSL on the 90th day of employment. There is no cap on the number of PSSL hours employees may accrue or use in a benefit year. Employees also must be allowed to carry over up to 40 hours of unused leave to the following year.

What are Acceptable Uses of PSSL?
Employees may use their PSSL for the following reasons:
  • Their own or a family member’s mental or physical illness, injury, or health condition;
  • When their workplace or child’s school or daycare is closed by order of a public official for any “health-related reason,” as defined; and
  • Their own or a family member’s need for various services and care relating to domestic violence, sexual assault, or stalking.
Who is a “Family Member”?
The definition of a family member is broadly defined as:
  • A biological, adopted, foster, or step-child, regardless of age of dependency, including someone to whom the employee stands in loco parentis or is a de facto parent;
  • A biological, adoptive, foster, or step-parent, legal guardian of the employee or the employee’s spouse or registered domestic partner, or a person who stood in loco parentis to the employee as a minor;
  • A spouse or registered domestic partner;
  • A grandparent;
  • A grandchild; or
  • A sibling.
How Much Must Employers Pay?
For each hour of PSSL used, employers must pay the employee the greater of the hourly minimum wage or the employee’s “normal hourly compensation.” “Normal hourly compensation” is “the hourly rate that an employee would have earned for the time during which the employee used paid sick leave,” excluding tips, service charges, holiday pay, premium pay, and overtime rates, where applicable. This can be a difficult calculation, depending on the method of compensation for a particular employee, so employers should confer with counsel.

What Increments of Leave Can Employees Use?
Employers must permit employees to use PSSL in the same increment of time used to track compensation, but it should be no greater than one hour. For many employers, this means that employees will be able to use PSSL in one-minute increments.

Can Employers Require Advance Notice?
Employers may require employees to abide by a reasonable written policy for advance notice for using PSSL, provided that the policy does not interfere with the lawful use of leave. For a foreseeable absence, employers may require employees to provide up to 10 days’ advance notice or notice as early as practicable. For unforeseeable absences, employers may require notice as soon as possible before the start of the shift. If that is impracticable, the employer must permit another person to give notice on the employee’s behalf. Moreover, employers also must comply with the notice requirements of the Washington Domestic Violence Leave Act and other laws.

Can Employers Require Verification of Appropriate Use?
Employers may require verification that PSSL is used for an authorized purpose only for absences of more than three work days, as long as the employer complies with numerous requirements. Further, an employer must participate in a detailed process if the employee objects that verification would cause an unreasonable burden or expense.

What Other Features are There?
Other features of the PSSL include options for frontloading, paid time off (PTO), sharing programs, and shift swapping. In addition, employers are not required to reimburse employees for unused PSSL at the end of employment. However, if employers choose to, any terms must be in a mutually agreed writing. Further, employers must reinstate unused PSSL to an employee rehired at any of their locations within 12 months, unless the unused time previously was reimbursed. The law also has a variety of reporting and employee notification requirements. Moreover, while the PSSL does not provide a waiver or exception for collective bargaining agreements, the existence of such an agreement may be a basis for obtaining a variance from the increment-of-use requirement.

What about Municipal Laws?
Employers with operations in multiple cities in Washington must comply with local ordinances in addition to the Washington PSSL. For instance, Seattle and Tacoma employers have to navigate the interplay between state and local laws in order to determine the correct course.

Family and Medical Leave Insurance Program:

Washington joined a handful of other states (California, New Jersey, Rhode Island, and New York) to have enacted paid family leave law. The law creates an insurance fund that employers and employees both pay into, with a 0.4 percent payroll tax. Payroll deductions will begin on January 1, 2019, and benefits will become available to employees on January 1, 2020.

Affected Employers
The law applies to all private and most public employers in Washington. Employers with fewer than 50 employees working in Washington need not pay the employer portion of the premiums. Employers with up to 150 employees may apply for grants to offset wage costs while an employee is on leave. Employers can opt out of the state-run program if they have a comparable plan and pay a $250 fee to the Employment Security Department. Employers may request a waiver of the premium requirement for employees who are:
  • physically based outside of Washington,
  • employed in Washington on a limited or temporary work schedule, and
  • not expected to work in Washington for at least 820 hours during a “qualifying period.”
“Qualifying period” means the first four out of the last five completed calendar quarters or, if eligibility is not established, the last four completed quarters immediately before the employee applies for leave.

Affected Employees
The law applies to all employees working in Washington, except for those of the federal government. An employee is eligible if he or she worked at least 820 hours during a “qualifying period.” For now, unionized workforces with a collective bargaining agreement are excepted from the law. However, the law will apply to unionized workforces when the existing CBA expires or when it is reopened or renegotiated by the parties.

Leave Specifics
Leave—Each year, employees are entitled to:
  • 12 weeks of family or medical leave; or
  • 14 weeks of medical leave if the employee experiences a pregnancy-related serious health condition that results in incapacity; or
  • 16 weeks of combined family and medical leave; or
  • 18 weeks of combined family and medical leave if the employee experiences a pregnancy-related serious health condition that results in incapacity.

Waiting period—There is a seven-day waiting period for benefits. However, there is no waiting period if an employee takes leave for the birth or placement of a child.

Funding—Employers and employees both pay into the paid leave program through payroll deductions. The total premium is 0.4 percent of an employee’s wages, to which the employer and employee must contribute.

Benefits—The benefit amount varies, depending on whether the employee earns more or less than the state’s average weekly wage. Job protection—When employees return from leave, they are entitled to be returned to the same or an equivalent job. They also are entitled to have available the same employment benefits that they accrued before taking the leave.

Bases for leave—Like the federal Family and Medical Leave Act, the bases for leave under the new state law include:
  • a serious health condition of an employee or a member of his or her family;
  • the birth, adoption, or foster placement of a child;
  • a qualifying military emergency; and
  • when employees learn that their military spouses are called to active duty.
Action Required:

Employers with employees in the state of Washington should review their policies, forms, practices, and supervisor training to ensure compliance. The updated Sick Leave Toolkit will be available on FormSource in the Leave and Return to Work section or in your Forms Library, as applicable. The Toolkit currently includes information about the law that has been made available to date.

As always, please be sure to contact your HR Business Partner if you have any questions.

*Produced in cooperation with Jackson Lewis P.C.

This content provides practical information concerning the subject matter covered and is provided with the understanding that ADP is not rendering legal advice.

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Tags: Compliance Corner11/01/18state update

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