From the Employment Department of Karr Tuttle Campbell

Medora A. Marisseau Tracy M. Miller Matthew A. Mihlon

Richard J. Omata Robert A. Radcliffe J. Derek Little

Lawrence B. Ransom Johanna M. Coolbaugh

On September 12, 2011, the Seattle City Council passed an ordinance requiring all employers who have 5 or more employees working within the City limits to provide paid sick leave and paid safe leave.  The Mayor is expected to sign the legislation soon.  It will take effect on September 1, 2012.

Highlights of the new law.

Who is Covered?

The law requires differing levels of paid sick leave depending on employer size, as follows:

5-49 employees:
1 hour of paid sick leave for every 40 hours worked; maximum accrual of 40 hrs per calendar year; maximum carryover of 40 hours per year.

50-249 employees:
1 hour of paid sick leave for every 40 hours worked; maximum accrual of 56 hrs per calendar year; maximum carryover of 56 hours per year.

250+ employees:
1 hour of paid sick leave for every 30 hours worked; maximum accrual of 72 hrs per calendar year; maximum carryover of 72 hours per year.

Accrual begins on the effective date of the ordinance (September 1, 2012) and thereafter on the first day of employment.

Use of Paid Sick Leave

An employee can use paid sick leave beginning on the 180th day after their employment begins* for absence for the employee’s own illness, injury or health condition, need for medical care/diagnosis or preventive medical care or to provide care for a family member for the same purposes.  A family member means a child, grandparent, parent, parent-in-law, spouse or domestic partner.

[*Note: For those employed before the effective date of the ordinance, sick leave should not be available for use until the 180th day following the effective date of the ordinance, or February 27, 2013.  For “New Employers” (an undefined term) with fewer than 250 employees, the ordinance will not take effect until 24 months after their first employee is hired.]

Use of Paid Safe Time

The ordinance also includes provisions for paid “safe time.”  Safe time can also be used beginning on the 180th day after employment begins.  This includes absence due to closure of employee’s place of business by order of a public official to limit exposure to infectious or hazardous agents, or need to care for a child where there has been a closure of the child’s school or place of care for the same reasons.  It also includes absences related to domestic violence, sexual assault and stalking, for the same reasons as set forth under state law, such as time to attend legal proceedings, to seek treatment related to domestic violence, sexual assault or stalking, to enable the employee to assist a family member in obtaining such treatment, and relocation and other safety planning efforts.  (RCW 49.76.030)

Notice to Employer

The employee is required to provide notice to the employer of the need for paid sick or safe leave, and the expected duration of the absence.

If leave is foreseeable, a written request of at least 10 days before the leave, or as early as possible is required, unless the employer normally requires less notice.  The employer may require its usual procedures for requesting leave, as long as the procedures do not interfere with the purpose of the leave.  The employee shall make reasonable efforts to schedule the leave in a manner that does not “unduly” disrupt business operations.

If the paid leave is unforeseeable, the notice must be provided as soon as practicable and generally comply with the employer’s normal notice/call-in procedures, provided they do not interfere with the purpose of the leave.

If an employee uses paid sick leave for more than 3 consecutive days, the employer may require documentation that the sick leave is covered.  A signed note from a health care provider certifying that the sick leave is necessary is considered reasonable documentation.   Similar documentation can be required for use of paid safe time in excess of 3 consecutive days.

Employer to pay one-half of out-of-pocket expenses in certain cases

If an employer requests documentation to support a paid sick leave and the employer does not offer health insurance to its employees, the employer shall pay one-half the cost of any out-of-pocket expense incurred by the employee in obtaining the requested documentation.

Coordination with existing leave policies

The ordinance provides that additional paid sick leave or safe leave is not required for employers with a paid time off policy if the available paid leave can be used for the same purposes and under the same conditions as what the ordinance requires, is accrued at a rate “consistent” with the rate set forth in the ordinance, and use of paid leave and accrual of unused paid leave is no less than the hours set forth in the ordinance.
No cash value of unused accrued sick and safe time
The ordinance does not require payment of accrued unused sick or safe time upon separation from employment.

Alternative arrangements

The ordinance allows employers to offer comp time during the same or next pay period without using available paid sick leave.  It also allows employers to establish policies to allow employees to voluntarily trade shifts or assigned hours in response to a paid
leave request, or to allow employees to donate hours.

Special rule for eating and drinking establishments

The employer may offer the employee substitute hours or shifts in response to a request for paid sick or safe time.  If the employee works the substitute hours/shift, the smaller of the leave hours requested or the substitute hours worked, may be deducted from the employee’s accrued leave time.  The ordinance expressly states, however, that an employee is not required to accept substitute hours or shifts in response to a request for paid sick or safe time.

New Posting Requirement

The law requires new posting of rights relating to the ordinance.  The posters will be created by the Seattle Office of Civil Rights.

Rules on Employee Records

The ordinance requires employers to maintain 2 years of records and to maintain records which reasonably indicate employee hours worked in Seattle, and accrued and used sick and safe time.

Enforcement and Penalties

The ordinance empowers the Seattle Office of Civil Rights to investigate complaints and determine violations under the law.  Charges must be filed within 180 days of the alleged violation.  In the event of a violation, the Agency may award attorney fees, up to 2 years of back pay, and other compensatory relief, except that damages for emotional and mental suffering are limited to $10,000.  There is no apparent private right of action that can be brought in court by an employee.

No Waiver

The ordinance provides that any waiver by an individual shall be contrary to public policy and therefore void.  This provision has implications for pre-charge settlement agreements.

Tips for Compliance

The ordinance is packed with many new requirements for employers and regulations by the Seattle Office of Civil Rights have not yet been adopted.  This summary is for informational purposes only and you should consult your legal advisors at Karr Tuttle Campbell for legal advice pertaining to this law.
Copyright © 2011

KARR ^▼ TUTTLE ^▼ CAMPBELL

Employment updates are published by Karr Tuttle Campbell to present information on legal matters that may be deserving of clients’ immediate attention. The information contained in this Alert should not be regarded as legal advice or opinion, but is attorney-client privileged.