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How Seattle Employers Can Prepare for Mandatory Paid Sick and Safe Leave

Sick LeaveAs we recently reported, on September 12 the Seattle City Council passed an ordinance that mandates paid sick time for workers in jobs within the Seattle city limits.  City Council press releases explained that the bill “is about ensuring healthier workplaces by preventing the spread of disease.” But in practice this new law will cover a much broader terrain, mandating paid sick leave not only when an employee is sick, but also when a family member is ill or when a worker or family member needs “safe time” due to domestic violence, assault, stalking or other threatening circumstances. Family members themselves can be defined as spouses, domestic partners, children, parents, parents-in-law and grandparents. Because of the scope of this ordinance, the Greater Seattle Chamber of Commerce has called it a “a complex, bureaucratic and prescriptive mandate” for city employers.

Employers can determine if their existing sick leave practices will comply with the new ordinance by answering the following:

  • Does your company have a “use it or lose it” sick or paid time off (“PTO”) policy?
  • Does your company have a no-fault attendance policy that counts time off for an employee’s sickness?
  • Does your company impose a waiting period before a newly hired employee begins to accrue paid time off?
  • When an employee calls in sick regularly on Fridays and Mondays, does your company ask for a doctor’s note verifying the employee’s diagnosis?

If you responded “yes” to any of the above questions, your company policies will violate the Seattle Sick and Safe Leave Act when it goes into effect on September 1, 2012.

Employers are advised to consult with an attorney to learn more about how the ordinance will impact their policies and practices. Businesses should be aware that the ordinance may be interpreted as conflicting with several aspects of the Family and Medical Leave Act and ERISA. Please read the following summary for highlights some of the new Sick Leave Ordinance’s requirements.

1.     When does the Paid Sick Leave ordinance begin?

The ordinance will become effective on September 1, 2012.

2.     Which businesses are required to comply?

The ordinance will apply to any business with five or more employees in a given location. Companies that have been in operation for less than two years will be exempt. To determine the official number of employees under the new regulations, employers must include full-time, part-time and temporary workers. However, work-study students and temporary employees provided by a temp agency are not included.

3.     Which employees are covered by the law?

Employees are covered by the ordinance if they carry out work in the City of Seattle and are employed by a business with five or more employees. Workers who only sometimes perform jobs in Seattle may also be covered if they work more than 240 hours in the city limits within a consecutive 12 month period.

4.     Can an employer with existing coverage for their workers opt out of the requirements of the ordinance?  

While this is technically a possibility, employers seeking a waiver should consult an employment attorney before moving forward with the collective bargaining process.

5.     When will paid sick time and safe time begin to accrue?

For workers employed on the effective date, leave will start accruing on September 1, 2012. Accrual rates will not apply to time worked prior to the ordinance taking effect. Those employees hired after September 1, 2012 will begin to accrue paid leave when their employment begins.

6.     Is there a waiting period before an employee can use paid safe and sick time?

Yes. The ordinance require a 180-day waiting period. An employee may use paid leave beginning on the 180th calendar day after their employment begins, regardless of the number of hours worked.

7.     When can covered employees use paid sick time?  

  • For mental or physical illness, injury or health condition suffered by the employee.
  • For accommodating a medical diagnosis or treatment of the above.
  • For preventive care
  • For accommodating an employee who must provide care to a family member with a mental or physical illness, injury or health condition.
  • For allowing the employee to provide care to a family member who needs medical diagnosis or treatment of the above.
  • For allowing the employee to provide care to a family member who needs preventive medical care.

 

8.     Who is considered a “family member” under the sick time ordinance?

The definition of “family member” is borrowed from the Washington Family Care Act, RCW 49.12.265 and 49.12.903. These provisions typically define a family members to include a child, spouse, domestic partner, parent, parent-in-law or grandparent. Under the ordinance, “domestic partner” also includes partnerships registered with either the City of Seattle or State of Washington.

9.     When can a covered employee use available paid safe time?

  • When the employee’s place of business has been closed by order of a public official to limit exposure to an infectious agent, biological toxin or hazardous material;
  • To accommodate the employee’s need to care for a child whose school or place of care has been closed by order of a public official for such a reason;
  • To enable the employee to seek legal or law enforcement assistance or remedies to ensure the health and safety of the employee or the employee’s family members including, but not limited to, preparing for, or participating in, any civil or criminal legal proceeding related to or derived from domestic violence, sexual assault or stalking;
  • To enable the employee to seek treatment by a health care provider for physical or mental injuries caused by domestic violence, sexual assault or stalking, or to attend to health care treatment for a victim who is the employee’s family member;
  • To enable the employee to obtain, or to assist a family member in obtaining, mental health counseling related to an incident of domestic violence, sexual assault or stalking, in which the employee or the employee’s family member was a victim of domestic violence, sexual assault or stalking; or
  • To enable the employee to participate in safety planning, temporarily or permanently relocate, or take other actions to increase the safety of the employee or employee’s family members from future domestic violence, sexual assault or stalking.

 

11.   How much paid time must an employer make available to Seattle employees?  

The accrual rate for paid sick and safe time is calculated based on the number of full time equivalent (“FTE”) employees during the preceding calendar year for any and all weeks in which at least one employee worked for compensation. The method for calculating FTE’s is explained in full detail in the ordinance. Businesses fall into three tiers for leave accrual purposes, which are determined by the average number of full time employees who perform services in a calendar week.

12.   Can employers require medical verification of the employee’s need for sick time?

Only in certain cases.  Businesses may ask a worker to provide documentation from a health care provider only if the employee uses sick time for their own illness in excess of three consecutive days. “An employer may not require that the documentation explain the nature of the illness.” Furthermore, employers that do not offer employee health insurance must pay one-half of any expenses incurred in obtaining medical documentation.

16.   What can businesses do now to prepare for the Seattle Sick and Safe Leave ordinance?

  • If your business employs five or more workers, and any full-time employees who work in Seattle, you will be required to provide a written policy allowing paid sick and safe time. Start now to prepare your policy to ensure that it complies with all requirements laid out by the ordinance prior to the effective date of September 1, 2012.
  • If you have a “use it or lose it” policy that requiring workers to use sick leave or paid time off before a year’s end, prepare to modify your policy to allow some sick leave / PTO to roll over into the next calendar year.
  • If your company has an existing paid time off policy, carefully assess whether it continues to meet your individual business needs. Note that Tier 3 employers must allow 108 work hours (15 and a half days) to carry over into the following calendar year.
  • If your business has a no-fault attendance policy, prepare to change this so that workers are not penalized for using paid sick and safe leave.
  • If your company requires notes from health care professionals documenting an employee’s prolonged illness or sporadic attendance, check that policy to ensure that it fully complies with the new ordinance.
  • Consider having your policies and practices reviewed by experienced attorney to avoid penalties for violating the ordinance.

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Emery Reddy