Tag Archives: Paid Sick Leave

NEW GUIDANCE — New Jersey Publishes FAQs Regarding Paid Sick Leave Law

On October 29, 2018, the New Jersey Paid Sick Leave Law goes into effect.  In anticipation of this new law, on October 24, 2018, the New Jersey Department of Labor and Workforce Development (NJDOL) issued a list of frequently asked questions  relating to the new paid sick leave law.  This new guidance follows the NJDOL’s release of proposed paid sick leave regulations and the New Jersey Earned Sick Leave poster.

While much of the guidance provided restates information set forth in the proposed regulations or in the statute,  the newly issued FAQs clarify some open questions including (Note, the below are taken verbatim from the FAQs):

II. EMPLOYEES COVERED/NOT COVERED BY THE LAW

5. Is an employee who works both within New Jersey and outside of New Jersey entitled to receive earned sick leave? Continue reading NEW GUIDANCE — New Jersey Publishes FAQs Regarding Paid Sick Leave Law

NEW POSTER: New Jersey Department of Labor and Workforce Development Issues New Paid Sick Leave Mandatory Poster

On October 3, 2018, the New Jersey Department of Labor and Workforce Development published the required New Jersey paid sick leave law poster in English (other languages will be available soon).

This new poster includes information regarding the state’s new paid sick leave law.

This poster must be posted “in a conspicuous place” at the employer’s premises “where notices to employees and applicants for employment are customarily posted.”

In addition to the posting requirements, employers are required to provide employees with a copy of this poster at the following times:

  • Within 30 days of October 3, 2018 (the date it was issued by the NJDOL),
  • At the time of hiring (if the employee is hired after the notice is issued), and
  • The first time an employee requests a copy of the notice.

Employees can be provided with a hard copy of the notice or it may be distributed via email.

It is recommended that all New Jersey employers do the following as soon as possible:

  • Post this new poster in their workplace
  • Distribute the notice to all employees.

NEW LAW: Michigan’s New Earned Sick Time Law

The Michigan Legislature recently adopted Michigan’s Earned Sick Time Act. This law, which was scheduled to be a ballot initiative (the Michigan Paid Sick Leave Initiative) in the November 2018 election, will require Michigan employers to provide 72 hours of sick leave per year to eligible employees. The new law will likely take effect on or about April 1, 2019*. Michigan employers should start preparations now to comply with this law as it will likely have a significant effect on their existing sick leave and PTO benefits plans.

Who is covered by Michigan’s Earned Sick Time Act?

All Michigan employers are covered by Michigan’s Earned Sick Time Act.  However, the size of the employer determines whether the sick leave provided is paid sick leave or unpaid sick leave.

All Michigan employers who employ 10 or more employees will be required to provide employees with paid sick leave.

All Michigan employers who employ 9 or fewer employees will be required to provide employees with both paid and unpaid sick leave. Continue reading NEW LAW: Michigan’s New Earned Sick Time Law

Austin Local Paid Sick Leave Law Enjoined

Earlier this year, Austin became the first city in Texas to pass a local paid sick leave law (Austin Takes Lead as First City in Texas to Require Paid Sick Leave).  This law requires employers to give employees one hour of earned sick time for every 30 hours worked.   The paid sick leave law was to take effect on October 1, 2018.

Shortly after the law was passed, a lawsuit was filed to enjoin (i.e. prevent from going into effect) the new paid sick leave law.  On August 17, 2018, a Texas court granted the injunction.

What does this mean for employers in Austin?

The granting of the injunction means that the Austin paid sick leave law will NOT go into effect on October 1, 2018.  The law could go into effect at a later date.  We will keep an eye on this and update employers on any developments.

What does this mean for employers in San Antonio?

As we reported earlier this week (NEW LAW – San Antonio Passes Local Paid Sick Leave Ordinance), San Antonio also recently passed a local paid sick leave law.  While the injunction on the Austin law does not have any impact on the San Antonio law, the granting of the injunction may inspire similar legal action in San Antonio.

NEW LAW – San Antonio Passes Local Paid Sick Leave Ordinance

On August 16, 2018, the San Antonio (Texas) City Council passed a new local paid sick leave ordinance.  The new law will go into effect in stages –

  • Large employers (more than 5 employees): Effective August 1, 2019
  • Small employers (5 or fewer employees): Effective August 1, 2021

Who is covered by the new San Antonio paid sick leave ordinance?

The new paid sick leave ordinance affects all employers who do business in the city of San Antonio.

What employees are eligible for paid sick leave?

All employees who perform “at least 80 hours of work for pay within the City of San Antonio, Texas in a year” are eligible for paid sick leave benefits.

How much paid sick leave must be provided?

Starting August 1, 2019 for larger employers (August 1, 2021 for small employers), eligible employees of San Antonio employers will start accruing paid sick leave. Continue reading NEW LAW – San Antonio Passes Local Paid Sick Leave Ordinance

NEW LAW: New Jersey Enacts Sick Leave Law

On May 2, 2018, New Jersey enacted a mandatory sick leave law which will apply to all private employers, regardless of employee count. The new law will take effect on October 29, 2018 and will require employers to provide 40 hours of paid sick leave per year to eligible employees. New Jersey employers should start preparations now to comply with this law as it will likely have a significant effect on their existing sick leave and PTO benefits plans.

Effective Date

October 29, 2018.

Employees Who Qualify for Sick Leave

All employees working in the state “for compensation” must be provided with paid sick leave.

The law specifically excludes employees in the construction industry subject to a collective bargaining agreement, per diem health care employees, and public employees who already receive sick leave benefits under another state law.

Employers Who Must Provide Sick Leave Continue reading NEW LAW: New Jersey Enacts Sick Leave Law

Austin Takes Lead as First City in Texas to Require Paid Sick Leave

On February 16, 2018, the city of Austin, Texas enacted a mandatory sick leave law which will apply to all private employers. While it’s passage came with promises by members of the Texas State Legislature to push through legislation that will undo this law and prevent other municipalities from enacting their own sick leave laws, until such promises come to fruition, Austin employers should be prepared to comply with Austin’s new sick leave requirements.

Effective Date

For employers with more than 5 employees, the sick leave law will go into effect on October 1, 2018.  For smaller employers with 5 employees or less, the law will not take effect until October 1, 2020.

Note: All private employers will eventually be required to comply with the new law, regardless of employee count.

Employees Who Qualify for Sick Leave

All employees who work at least 80 hours in Austin during a calendar year will be entitled to sick leave.  In calculating an employee’s work hours for purposes of the sick leave law, an employees work performed through a temporary or employment agency will be counted.

The law specifically excludes independent contractors and unpaid interns.

Requirements for Accrual and Carryover

Employees will accrue sick leave as follows:

  • 1 hour of sick time will accrue for every 30 hours worked in the City.
  • Sick time begins accruing when the employment commences or when the sick leave law takes effect, whichever is later. Employees may begin using sick time as soon as it accrues.
  • Accrual may be capped based on the size of the employer, with large employers (those with more than 15 employees) permitted to cap accrual at 64 hours of leave time per year, and smaller employers (those with 15 employees or less) permitted to cap accrual at 48 hours per year.

Continue reading Austin Takes Lead as First City in Texas to Require Paid Sick Leave

California Employers — Watch Out For These Common Wage And Hour Problems

California’s wage and hour laws are complicated and is constantly changing.  As a result, employers often find themselves running afoul of one (or more) of these laws and facing potential liability.

To mitigate your risk of a wage claim, we recommend that employers regularly audit their wage and hour practices to ensure compliance with California law.  When conducting this audit, make sure you have a clear understanding of the following common problems relating to compensating non-exempt employees:

Overtime And Double Time For Non-Exempt (Hourly Paid) Employees

  • California employers must pay overtime (1.5 times the employee’s regular rate of pay) to non-exempt employees as follows:
    • For all hours worked over eight hours in a workday or 40 hours a week
    • The first 8 hours worked on the 7th consecutive day of work in a workweek
  • California employers must pay double time (2 times the employee’s regular rate of pay) to non-exempt employees as follows:
    • For hours worked over 12 hours in any workday
    • For hours worked over 8 hours on the 7th consecutive day of work in a workweek

Calculating The Regular Rate Of Pay

  • The regular rate of pay is the employee’s actual rate of pay, which includes the employee’s regular hourly earnings (i.e. hourly rate of pay) plus any additional compensation that must be included in the regular rate of pay – including:
    • Commission payments;
    • Piece rate payments;
    • Non-discretionary bonuses (e.g. productivity bonus, performance bonus, attendance bonus, longevity bonus, cost-of-living bonus);
    • Awards or prizes won for quality, quantity or efficiency;
    • Shift differentials;
    • Premiums paid for hazardous, arduous or dirty work;
    • Non-cash wages in the form of goods, board, or lodging;
    • Pay for non-productive work hours (e.g. rest breaks, waiting time, attending meetings); and
    • Lump sum on-call payments.
  • Payments excluded from regular rate of pay:
    • Premium (or extra) pay for daily or weekly overtime;
    • Premium pay for work on weekends, holidays, regular days of rest or the sixth or seventh day of the workweek (if it is at least 1.5 times the rate for work performed during non-overtime hours on other days);
    • Premium pay for work outside the agreed to hours (if it is at least 1.5 times the rate for work performed during the agreed to hours);
    • Discretionary bonuses;
    • Gifts;
    • Certain payments that are not made as compensation for hours of work (e.g. vacation pay, paid time off, sick time, and reimbursement for business expenses);
    • Payments to a bona fide profit-sharing plan or trust or a bona fide thrift or savings plan;
    • Irrevocable contributions to employee health and welfare plans; and
    • Certain stock options, appreciation rights and purchase programs.

Split Shift Premiums

  • Under the split shift premium rule, an employee must receive one hour’s pay at no less than the minimum wage rate for the time between shifts.  An employer can use any hourly amount the employee earns above minimum wage to offset the split shift requirement.

Reporting Time Pay

  • “Reporting time pay” is partial compensation for employees who report to work expecting to work a specified number of hours and who are deprived of that amount because of inadequate scheduling or lack of proper notice by the employer. The provisions of the law regarding reporting time pay are as follows:
    • Each workday an employee is required to report to work, but is not put to work or is furnished with less than half of his or her usual or scheduled day’s work, he or she must be paid for half the usual or scheduled day’s work, but in no event for less than two hours nor more than four hours, at his or her regular rate of pay.
    • If an employee is required to report to work a second time in any one workday and is furnished less than two hours of work on the second reporting, he or she must be paid for two hours at his or her regular rate of pay.

Rest Periods

  • Employers are required to provide a 10-minute, duty-free rest break during each period of four hours (or major fraction thereof, i.e. 2 hours) worked by an employee.  Employers are not required rest periods when an employee’s total daily work time is less than 3½ hours.  This means that employees are entitled to rest periods as follows:
    • An employee who works more than 3½ hours and up to 6 hours is entitled to 1 rest period
    • An employee who works more than 6 hours and up to 10 hours is entitled to 2 rest periods
    • An employee who works more than 10 hours and up to 14 hours is entitled to 3 rest periods
    • An employee who works more than 14 hours and up to 18 hours is entitled to 4 rest periods

Meal Periods

  • Any employee who works more than five hours in a day must be provided with a 30-minute unpaid, duty free meal period.   The meal period must be provided no later than the end of the employee’s 5th hour of work (in other words, before the start of the employee’s 6th hour of work).
    • If an employee’s entire workday is completed in six hours or less, the meal period may be waived by mutual consent of the employer and the employee. This consent should be in writing and signed by both the employee and the employer. If the employee’s workday is more than 6 hours, then the meal period cannot be waived.
  • Any employee who works more than ten (10) hours in a day must be provided with a second unpaid, duty free meal period, also at least 30 minutes in duration. The second meal period must begin no later than the end of an employee’s 10th hour of work (i.e. before the employee works more than 10 hours).
    • If the total workday is 12 hours or less, the second meal period may be waived by mutual consent of the employer and employee, but only if the first meal period was taken. If an employee works more than 12 hours in a day, the second meal period may not be waived (except employees in the health care industry may voluntarily waive their second meal period after 12 hours).

Timekeeping Requirements

  • Employers must record the beginning and end of each workday and the beginning and end of unpaid meal or other unpaid periods.

Wage Theft Protection Act Notice

  • All non-exempt employees must be provided with a Wage Theft Prevention Notice at time of hire and within 7 days of a change.  A sample notice is available here.

Cellphone Reimbursement (** also applies to exempt employees)

  • Employers must reimburse employees who use personal cellphones for business purposes for both voice and data fees incurred for business purposes.

Paid Sick Leave (** also applies to exempt employees)

  • Employers must provide employees with paid sick leave in accordance with state or, if applicable, local law.

Pay Stub Requirements (** also applies to exempt employees)

  • Employers must provide all employees with an itemized statement of wages that includes the following information:
    • Gross wages earned;
    • Total hours worked by the employee (not required for salaried, exempt employees);
    • For piece-rate employees, the number of piece-rate units earned and any applicable piece rate if the employee is paid on a piece-rate basis, and the total hours of compensable rest and recovery periods, the rate of compensation, and the gross wages paid for those periods during the pay period, and the total hours of other nonproductive time, the rate of compensation, and the gross wages paid for that time during the pay period;
    • All deductions (all deductions made on written orders of the employee may be aggregated and shown as one item);
    • Net wages earned;
    • The inclusive dates of the period for which the employee is paid;
    • The employee’s name and the last four digits of his or her social security number or an employee identification number other than a social security number;
    • The name and address of the legal entity that is the employer; and
    • All applicable hourly rates in effect during the pay period, and the corresponding number of hours worked at each hourly rate by the employee.
  • In addition, all employee paychecks must list the address of a specific location within the state where the check can be cashed without a fee.

Vacation Pay (** also applies to exempt employees)

  • Forfeiture of vacation is prohibited in California
    • “Use it or lose it” policies are not permitted
    • All accrued but unused vacation must be paid upon termination

Final Paychecks (** also applies to exempt employees)

  • All employees must receive their final wages within the following timeframe:
    • Immediately upon involuntary termination
    • Within 72 hours if employee resigns without notice
    • On last day of work if employee resigns with at least 72 hours’ notice
  • All wages “due and owing” must be paid with the final wages, otherwise waiting time penalties are assessed.  This includes accrued, unused vacation and/or meal/rest period premiums
    • Commissions or other performance-based pay must be paid as soon as it can be calculated, regardless of when it otherwise would be paid.
  • No deduction may be taken from final paychecks unless legally mandated, authorized in writing by the employee, or for a loss attributable to the employee’s dishonest or willful act or gross negligence (but only if the employer is absolutely positive that it can be proven that the employee was not simply negligent). No balloon deductions for payoffs of employer loans to employees.

NEW LAW: Maryland’s New Sick Leave Statute

Just when you thought that Maryland’s sick leave statute (the Maryland Healthy Working Families Act) was dead on arrival (thanks to Maryland Governor Larry Hogan’s veto), the Maryland legislature recently voted to override the governor’s veto, which means that Maryland is officially the 9th state to require employers provide earned sick and safe leave to their employees.  Absent any delays, this law is currently scheduled to go into effect on February 11, 2018 (30 days following the veto override).

Who is covered by the Maryland Healthy Working Families Act?

All Maryland employers are covered by the Maryland Healthy Working Families Act.  However, the size of the employer determines whether the sick leave provided is paid sick leave or unpaid sick leave.

All Maryland employers who employ 15 or more employees will be required to provide employees with paid sick and safe leave.

All Maryland employers who employ 14 or fewer employees will be required to provide employees with unpaid sick and safe leave.

How is an employer’s employee headcount determined?

According to the Maryland Healthy Working Families Act, the employee headcount is determined by calculating the average monthly number of employees employed by the employer during the immediately preceding year.  When making this calculation, employers must include all employee types (e.g. all full–time, part–time, temporary, or seasonal employees) and cannot take into consideration whether an employee would actually be eligible for earned sick and safe leave benefits.

Are any employees excluded from earned sick and safe leave?

Yes, the following types of employees are excluded from receiving “earned sick and safe leave”:

  • Employees who work under a contract for hire that is determined not to be covered employment under Maryland law,
  • Employees who are certain licensed real estate salespersons or brokers,
  • Employees who are under the age of 18 years old before the beginning of the year,
  • Employees who are employed in the agricultural sector on an agricultural operation.
  • Employees who are employed by a temporary services agency to provide temporary staffing services to another person as long as the agency does not maintain day to day control over and supervision of the individual’s work assignments while he/she is providing the temporary services; or
  • Employees who are directly employed by an employment agency to provide part-time or temporary services to another person

How much earned sick and safe leave must be provided?

Starting February 11, 2018, eligible employees of Maryland employers will start accruing earned sick and safe leave. Earned sick and safe leave benefits will accrue at a rate of 1 hour for every 30 hours worked by the employee. For new employees, accrual begins on the first day of employment.

Employers must provide employees with at least 40 hours of earned sick and safe leave per year.

Instead of tracking annual accrual, employers are allowed to “frontload” an employee’s earned sick and safe leave allotment on an annual basis (i.e. provide an employee with the full earned sick and safe leave allotment at the start of the year).

Subject to the accrual cap, up to 40 hours of accrued but unused earned sick and safe leave must be carried over to the following year.

Is there a limit to the amount of earned sick and safe leave an employee can accrue?

Yes, the Maryland Healthy Working Families Act sets a “point in time” accrual cap on earned sick and safe leave of 64 hours.  This means that employers are only required to allow employees’ bank of accrued, unused earned sick and safe leave to reach 64 hours at any one time.

If an employer uses the accrual method for providing earned sick and safe leave, how does the employer comply with both the 40-hour annual accrual cap and the 64-hour “point in time” accrual cap?

This issue only arises where an employee’s unused earned sick and safe leave is carried over to the following year and is best explained through the following example:

An employee accrues 40 hours of earned sick and safe leave in 2018 and does not use any accrued earned sick and safe leave during that year.  The employee carries over all 40 hours into 2019.  In 2019, the employee accrues earned sick and safe leave until he reaches 64 hours in his bank.  Accrual stops even though the employee has only accrued 24 hours of earned sick and safe leave in 2019 because the employee has reached the 64-hour “point in time” accrual cap.  In July of 2019, the employee becomes ill and uses 24 hours of earned sick and safe leave.  Once the employee uses some of his banked 64 hours of earned sick and safe leave, he begins accruing the remaining 16 hours of earned sick and safe leave for 2019 based on his hours worked.

Is there a limit to the amount of earned sick and safe leave an employee can use in a given year?

Yes, employers must allow employees to use at least 64 hours of earned sick and safe leave in a year.

How is a “year” defined for purposes of earned sick and safe leave?

A “year” is defined as a regular and consecutive 12–month period as determined by the employer.

Are there any exceptions to the earned sick and safe leave accrual rules (in other words, are there times where an employer is not required to allow an employee to accrue earned sick and safe leave)?

Yes, there are three exceptions to the earned sick and safe leave accrual rules.

Employers are not required to allow a non-exempt employee to accrue sick and safe leave during:

  1. A two-week pay period in which the employee worked less than 24 hours total,
  2. A one-week pay period if the employee worked less than a combined total of 24 hours in the current and immediately preceding pay period, or
  3. A pay period in which the employee is paid twice a month, regardless of the number of weeks in a pay period, and the employee worked fewer than 26 hours in the pay period.

For exempt employees, the Maryland Healthy Working Families Act assumes that exempt employees work 40 hours each workweek, unless the employee’s normal workweek is less than 40 hours, in which case the number of hours in the normal workweek should be used.

When are employees eligible to use earned sick and safe leave?

The Maryland Healthy Working Families Act imposes a 106-calendar day waiting period before a newly hired employee can use paid sick leave benefits. This means that for employees who have been employed by the employer for more than 106 days as of February 11, 2018, those employees will be eligible to use their paid sick leave benefits as those benefits are accrued.

What can earned sick and safe leave be used for?

Employees can use earned sick and safe leave for the following purposes:

  • To care for or treat the employee’s own mental or physical illness, injury or condition, or to obtain preventive medical care;
  • To care for a covered family member with a mental or physical illness, injury or condition, or to obtain preventive medical care for the family member;
  • For maternity or paternity leave; or
  • For certain absences from work that are necessary due to domestic violence, sexual assault, or stalking committed against the employee or the employee’s covered family member.

Who is considered a “covered family member” under the Maryland Healthy Working Families Act?

A “covered family member” is defined as the employee’s:

  • Child (including a biological, adopted, foster, or step child of the employee, a child for whom the employee has legal or physical custody or guardianship, and a child for whom the employee stands in loco parentis, regardless of the child’s age),
  • Parent (including a biological, adoptive, foster or step parent of the employee or the employee’s spouse, the legal guardian of the employee, and an individual who acted as a parent or stood in loco parentis to the employee or the employee’s spouse when they were a minor),
  • Spouse,
  • Grandparent (including biological, adoptive, foster and step relationships),
  • Grandchild (including biological, adoptive, foster and step relationships), and
  • Siblings (including biological, adoptive, foster and step relationships).

What are the employee’s notice requirements before using earned sick and safe leave?

When the use of earned sick and safe leave is foreseeable, employees may be required to provide the employer “reasonable advanced notice” (no more than 7 days) of the need to use earned sick and safe leave.

When the use of earned sick and safe leave is not foreseeable, employees may be required to provide notice of the need to use earned sick and safe leave “as soon as practicable” and employers can require employees to generally comply with the employer’s notice or procedural requirements for requesting or reporting other leave, if those requirements do not interfere with the employee’s ability to use earned sick and safe leave.

An employer may deny an employee’s request to take earned sick and safe leave if:

  • An employee fails to provide proper notice for the need to use earned sick and safe leave; and
  • The employee’s absence will cause a disruption to the employer.

Can employers require that employees provide documentation verifying their need for earned sick and safe leave?

Yes, employers may require that an employee provide documentation verifying their need for earned sick and safe leave under the two following circumstances:

  • The leave was used for more than two consecutive shifts or
  • The employee used the leave between the 107th and 120th calendar days of his employment and the employee agreed to provide documentation under terms agreed upon by the employer and employee when the employee was hired.

In addition, if the employee fails to provide the required documentation, the employer can deny that employee’s subsequent request to take earned sick and safe leave for the same reason.

Are employers required to pay out unused earned sick and safe leave at termination of employment?

No, employers are not required to pay out unused, accrued earned sick and safe leave at termination of employment.  However, if an employee is rehired within 135 days of separation by the same employer, previously accrued paid sick and safe leave time that had not been used must be reinstated.

What are the employer’s notice requirements relating to paid sick leave?

An employer must give employees written notice of their right to paid sick leave. The notice must include several topics, including a statement about how sick and safe leave is accrued and the reasons for which the leave can be used under the Act.

The Maryland Commissioner of Labor and Industry is required to create a poster and model notice to help employers comply with this notice requirement.

In addition, employers are required to provide employees with a written statement of their available sick and safe leave balance each time wages are paid.

Does this new law preempt any local earned sick and safe leave ordinances that Maryland localities have passed?

It depends on when the local ordinance was passed.

Under the new paid sick leave law, Maryland localities are prohibited from passing local paid sick leave ordinances after January 1, 2017.

This means that any locality that passed a paid sick leave ordinance prior to this date (i.e. the Montgomery County, MD Earned Sick and Safe Leave Act, which went into effect on October 1, 2016) is shielded from preemption, while any locality that passed a paid sick leave ordinance after to this date (i.e. the Prince George’s County Earned Sick and Safe Leave ordinance, which was enacted on December 12, 2017 and scheduled to go into effect in May of 2018) is preempted.

What should Maryland employers do to prepare for the new law?

As stated above, Maryland’s new Paid Sick Leave Law is currently scheduled to go into effect on February 11, 2018. In order to prepare for this new law, employers should prepare paid sick leave policies and plan to include those policies in their 2018 Employee Handbook. In addition, employers with existing sick leave or PTO policies should check their policies to verify that they are compliant with this new law. We will keep you posted about this law as it draws closer to the effective date.

NEW REGULATIONS: Washington Paid Sick Leave Regulations Published

As previously reported in Washington Employers – Coming January 1, 2018 To A Workplace Near You – Paid Sick Leave, the Washington State paid sick leave law goes into effect on January 1st.  This means that starting January 1st, all Washington employers are required to start providing employees with paid sick leave.

To help employers better understand their obligations under this new law, the Washington Department of Labor and Industries recently issued its final regulations on employer obligations under the new paid sick leave law.  These regulations clarify some of the employer’s obligations under this new law – including:

Defining “Employer”

This term was previously undefined in the paid sick leave law.  The regulations define employer to include any individual, partnership, association, corporation, business trust, or any person or group of persons acting directly or indirectly in the interest of an employer in relation to an employee.

Defining “Covered Employee”

This term was also previously undefined in the paid sick leave law.  The regulations define covered employee as “any individual employed by an employer.”  However, not included in this definition are:

  • certain hand harvest laborers;
  • individuals employed in casual labor in or about a private home (with a few exceptions);
  • any individual employed in a bona fide executive, administrative, or professional capacity or in the capacity of outside salesperson;
  • any newspaper vendor, carrier, or delivery person selling or distributing newspapers on the street, to offices, to businesses, or from house to house and any freelance news correspondent or “stringer;”
  • individuals engaged in forest protection and fire prevention activities;
  • certain individuals employed by a charitable institution; and
  • any individual who holds a public elective or appointive office of the state, any county, city, town, municipal corporation or quasi municipal corporation.

Clarifying “Frontloading” Paid Sick Leave

The law allows employers to “frontload” paid sick leave provided that it “meets or exceeds the requirements…for accrual, use, and carryover of paid sick leave.”  The regulations clarify that employers can frontload paid sick leave by providing the employee with the estimated annual accrual of paid sick leave at the start of the year/start of employment.

This does not, however, remove an employer’s responsibility to track an employee’s accrual of paid sick leave throughout the year.  If the employer over-estimates the annual paid sick leave accrual, the employer cannot seek for the excess paid sick leave.  If the employer under-estimates the annual paid sick leave accrual, the employer must make the additional paid sick leave available to the employee as soon as practicable, and no later than 30 days after identifying the shortcoming.  In addition, an employer who wishes to frontload paid sick leave must have a written policy that explains the frontloading process.

Clarifying Payment Of Paid Sick Leave

The regulations clarify that paid sick leave is paid to the employees at his/her “normal hourly compensation,” which means “the hourly rate that an employee would have earned for the time during which the employee used paid sick leave.”   It does not include tips, gratuities, service charges, holiday pay, or other premium rates.

Clarifying “Reasonable Notice” Requirement

The regulations clarify that an employer may require an employee to provide “reasonable notice” of his/her need to use paid sick leave when the need is foreseeable.  “Reasonable notice” is defined as at least 10 days advance notice – provided that the employer has (and provides employees with) a written policy “outlining any requirements of an employee to give reasonable notice for the use of paid sick leave.”

If the need for paid sick leave is not foreseeable, then the employer may require notice as soon as possible before the required start of the employee’s shift, unless it is impracticable to do so.  If the employee’s use of paid sick leave is related to domestic violence, sexual assault, or stalking, any notice requirements must comply with the notice requirements under the Washington Domestic Violence Leave Act.

Clarifying Verification Of Paid Sick Leave

The regulations clarify that an employer may require an employee to provide verification that his/her absence qualified for paid sick leave only when the absence exceeds 3 days and where the employer has a written policy advising employees of this requirement.  Employers cannot require employees submit this verification until 10 calendar days after the first day of the paid sick leave absence.

In addition, if an employee believes that the employer’s verification requirement will cause the employee an unreasonable burden or expense, the employee must be allowed to provide the employer with an oral or written statement explaining (1) the PSL use is proper, and (2) how the verification requirement creates an unreasonable burden or expense.  This right must also be set forth in the written policy.

Imposing Employer Notice Requirements

The regulations impose many notice requirements on employers relating to paid sick leave, including:

  • Providing employees with a monthly written or electronic statement (which can be included on an employee’s paystub) detailing –
    • The amount of PSL accrued,
    • The PSL reductions since the last notification, and
    • Any unused PSL available for use by the employee.
  • Providing a rehired employee with a written statement informing the employee of the amount of accrued, unused paid sick leave that is available to the employee upon his/her reinstatement.
  • Providing all existing employees with notice of their rights under the Washington paid sick leave law no later than March 1, 2018. (The Department of Labor and Industries is developing a model notice)
  • Providing all employees hired on or after January 1, 2018 with notice of their rights under the Washington paid sick leave law at the time of hire.

Imposing Employer Recordkeeping Requirements

The regulations impose new recordkeeping requirements on employers, including maintaining records of:

  • Each employee’s monthly paid sick leave accrual,
  • Each employee’s any unused, accrued paid sick leave, and
  • Any paid sick leave reductions each month including, but not limited to
    • Paid sick leave used by an employee,
    • Paid sick leave donated to a coworker through a shared leave program, or
    • Paid sick leave not carried over to the following year.

Take home for employers

The new paid sick leave law is going into effect at the beginning of the year, It is recommended that employers who currently provide their employees with paid sick leave review their policies to ensure their policies comply with the new law and regulations.  For those employers who do not currently provide paid sick leave, they should work quickly to develop a compliant paid sick leave policy.

In addition, all employers should review their attendance policies to verify they comply with the new paid sick leave law.  Finally, all employers should train their supervisory and managerial employees on the new requirements.

The Department of Labor and Industries is currently working on a second set of regulations about the Department’s enforcement procedures, which is expected to be finalized next month.

NOTE: Several municipalities in Washington have separate sick leave requirements. Check your city/county to confirm the sick leave requirements in your area.  However, to the extent that the state requirements are more generous than those provided under the municipal law, employers are required to comply with the more generous requirements.