I-1433 Draft Proposed Rule Language

(Submitted on 4/29/17 by Elena Rumiantseva)

To the Department of Labor and Industries:

Thank you for the opportunity to provide input on the draft rules for earned sick and safe leave in Washington. Washington moms, dads, and family members strongly supported Initiative 1433 on the November ballot because a living wage and earned sick time are critical to helping all families thrive. In fact, just 3.5 days of missed work due to illness mean losing an entire month’s grocery budget for an average family. [1] However, we are concerned that aspects of the draft rules from the Department undermine the intent of the initiative passed overwhelmingly by Washington voters.

As a member of MomsRising, a statewide organization with 40,000 members, I believe the final rules on earned sick and safe time must address the following:

- Paid sick and safe leave must be enforced as a monetary loss: Employers’ failure to provide paid sick leave as well as retaliation against employees for using sick leave should be considered and enforced as a monetary loss. The Department of Labor and Industry’s draft rule would only potentially penalize employers and provides no compensation to workers for lost wages or damages. A strong administrative remedy that includes compensation for lost wages and damages is vital for low wage workers who are unlikely to have access to an attorney to pursue a private right of action.

- Use of paid sick leave must be job-protected as prescribed in statute: Initiative 1433 is very clear that use of paid sick leave cannot count towards an absence that may result in discipline of the employee. The draft rules do not directly address these types of systems that count paid sick leave as a mark against the employee.

- Paid sick leave must be available in no more than one hour increments: Requiring employees to use more sick leave than needed hurts employees with limited sick leave banks. Employees who only need 30 minutes of earned sick time – whether to recover from morning sickness or to attend a quick medical appointment – should be able to save their additional earned sick time for future use.

- Closed school or childcare centers due to inclement weather must count as caregiving: When schools or childcare centers are closed due to extreme weather, children must be placed somewhere with 24/7 care and supervision. Initiative 1433 was passed to address a range of caregiving situations, which include emergency situations where children are without access to adult care. Employees who have earned sufficient paid sick time should be able to decide when to use that time to care for their children.

(Submitted on 4/29/17 by JoAnne Kelly)

To the Department of Labor and Industries:

Thank you for the opportunity to provide input on the draft rules for earned sick and safe leave in Washington. Washington moms, dads, and family members strongly supported Initiative 1433 on the November ballot because a living wage and earned sick time are critical to helping all families thrive. In fact, just 3.5 days of missed work due to illness mean losing an entire month’s grocery budget for an average family. [1] However, we are concerned that aspects of the draft rules from the Department undermine the intent of the initiative passed overwhelmingly by Washington voters.

As a member of MomsRising, a statewide organization with 40,000 members, I believe the final rules on earned sick and safe time must address the following:

- Paid sick and safe leave must be enforced as a monetary loss: Employers’ failure to provide paid sick leave as well as retaliation against employees for using sick leave should be considered and enforced as a monetary loss. The Department of Labor and Industry’s draft rule would only potentially penalize employers and provides no compensation to workers for lost wages or damages. A strong administrative remedy that includes compensation for lost wages and damages is vital for low wage workers who are unlikely to have access to an attorney to pursue a private right of action.

- Use of paid sick leave must be job-protected as prescribed in statute: Initiative 1433 is very clear that use of paid sick leave cannot count towards an absence that may result in discipline of the employee. The draft rules do not directly address these types of systems that count paid sick leave as a mark against the employee.

- Paid sick leave must be available in no more than one hour increments: Requiring employees to use more sick leave than needed hurts employees with limited sick leave banks. Employees who only need 30 minutes of earned sick time – whether to recover from morning sickness or to attend a quick medical appointment – should be able to save their additional earned sick time for future use.

- Closed school or childcare centers due to inclement weather must count as caregiving: When schools or childcare centers are closed due to extreme weather, children must be placed somewhere with 24/7 care and supervision. Initiative 1433 was passed to address a range of caregiving situations, which include emergency situations where children are without access to adult care. Employees who have earned sufficient paid sick time should be able to decide when to use that time to care for their children.

I hope you will take into account this important feedback. Thank you for all that you do.

(Submitted on 4/28/17 by Cause Haun)

To the Department of Labor and Industries:

Thank you for the opportunity to provide input on the draft rules for earned sick and safe leave in Washington. Washington moms, dads, and family members strongly supported Initiative 1433 on the November ballot because a living wage and earned sick time are critical to helping all families thrive. In fact, just 3.5 days of missed work due to illness mean losing an entire month’s grocery budget for an average family. [1] However, we are concerned that aspects of the draft rules from the Department undermine the intent of the initiative passed overwhelmingly by Washington voters.

As a member of MomsRising, a statewide organization with 40,000 members, I believe the final rules on earned sick and safe time must address the following:

- Paid sick and safe leave must be enforced as a monetary loss: Employers’ failure to provide paid sick leave as well as retaliation against employees for using sick leave should be considered and enforced as a monetary loss. The Department of Labor and Industry’s draft rule would only potentially penalize employers and provides no compensation to workers for lost wages or damages. A strong administrative remedy that includes compensation for lost wages and damages is vital for low wage workers who are unlikely to have access to an attorney to pursue a private right of action.

- Use of paid sick leave must be job-protected as prescribed in statute: Initiative 1433 is very clear that use of paid sick leave cannot count towards an absence that may result in discipline of the employee. The draft rules do not directly address these types of systems that count paid sick leave as a mark against the employee.

- Paid sick leave must be available in no more than one hour increments: Requiring employees to use more sick leave than needed hurts employees with limited sick leave banks. Employees who only need 30 minutes of earned sick time – whether to recover from morning sickness or to attend a quick medical appointment – should be able to save their additional earned sick time for future use.

- Closed school or childcare centers due to inclement weather must count as caregiving: When schools or childcare centers are closed due to extreme weather, children must be placed somewhere with 24/7 care and supervision. Initiative 1433 was passed to address a range of caregiving situations, which include emergency situations where children are without access to adult care. Employees who have earned sufficient paid sick time should be able to decide when to use that time to care for their children.

I hope you will take into account this important feedback. Thank you for all that you do.

This issue will benefit all of our families. Resources well spent.

[1] http://www.epi.org/publication/the_need_for_paid_sick_days/

I initially left feedback regarding the language for employers allowing employees to accept tips/gratuity. I see that the proposed WAC 296-128-750 seems, as I read it, to address this by forbidding retaliation against employees exercising their rights under RCW 49.46 (which says, amongst other things, that employers must pay to all employees tips/gratuities). While this language may, in the end, be sufficient, I would prefer explicit language regarding the accepting of tips. Absent that, a separate administrative policy (similar to ES.C.6) that tackles the issue would be acceptable.

Thank you for your time.

(Submitted on 4/28/17 by Jennifer Cariaso)

To the Department of Labor and Industries:

Thank you for the opportunity to provide input on the draft rules for earned sick and safe leave in Washington. Washington moms, dads, and family members strongly supported Initiative 1433 on the November ballot because a living wage and earned sick time are critical to helping all families thrive. In fact, just 3.5 days of missed work due to illness mean losing an entire month’s grocery budget for an average family. [1] However, we are concerned that aspects of the draft rules from the Department undermine the intent of the initiative passed overwhelmingly by Washington voters.

As a member of MomsRising, a statewide organization with 40,000 members, I believe the final rules on earned sick and safe time must address the following:

- Paid sick and safe leave must be enforced as a monetary loss: Employers’ failure to provide paid sick leave as well as retaliation against employees for using sick leave should be considered and enforced as a monetary loss. The Department of Labor and Industry’s draft rule would only potentially penalize employers and provides no compensation to workers for lost wages or damages. A strong administrative remedy that includes compensation for lost wages and damages is vital for low wage workers who are unlikely to have access to an attorney to pursue a private right of action.

- Use of paid sick leave must be job-protected as prescribed in statute: Initiative 1433 is very clear that use of paid sick leave cannot count towards an absence that may result in discipline of the employee. The draft rules do not directly address these types of systems that count paid sick leave as a mark against the employee.

- Paid sick leave must be available in no more than one hour increments: Requiring employees to use more sick leave than needed hurts employees with limited sick leave banks. Employees who only need 30 minutes of earned sick time – whether to recover from morning sickness or to attend a quick medical appointment – should be able to save their additional earned sick time for future use.

- Closed school or childcare centers due to inclement weather must count as caregiving: When schools or childcare centers are closed due to extreme weather, children must be placed somewhere with 24/7 care and supervision. Initiative 1433 was passed to address a range of caregiving situations, which include emergency situations where children are without access to adult care. Employees who have earned sufficient paid sick time should be able to decide when to use that time to care for their children.

I hope you will take into account this important feedback. Thank you for all that you do.

[1] http://www.epi.org/publication/the_need_for_paid_sick_days/

(Submitted on 4/28/17 by Adriana Hutchings)

To the Department of Labor and Industries:

Thank you for the opportunity to provide input on the draft rules for earned sick and safe leave in Washington. Washington moms, dads, and family members strongly supported Initiative 1433 on the November ballot because a living wage and earned sick time are critical to helping all families thrive. In fact, just 3.5 days of missed work due to illness mean losing an entire month’s grocery budget for an average family. [1] However, we are concerned that aspects of the draft rules from the Department undermine the intent of the initiative passed overwhelmingly by Washington voters.

As a member of MomsRising, a statewide organization with 40,000 members, I believe the final rules on earned sick and safe time must address the following:

- Paid sick and safe leave must be enforced as a monetary loss: Employers’ failure to provide paid sick leave as well as retaliation against employees for using sick leave should be considered and enforced as a monetary loss. The Department of Labor and Industry’s draft rule would only potentially penalize employers and provides no compensation to workers for lost wages or damages. A strong administrative remedy that includes compensation for lost wages and damages is vital for low wage workers who are unlikely to have access to an attorney to pursue a private right of action.

- Use of paid sick leave must be job-protected as prescribed in statute: Initiative 1433 is very clear that use of paid sick leave cannot count towards an absence that may result in discipline of the employee. The draft rules do not directly address these types of systems that count paid sick leave as a mark against the employee.

- Paid sick leave must be available in no more than one hour increments: Requiring employees to use more sick leave than needed hurts employees with limited sick leave banks. Employees who only need 30 minutes of earned sick time – whether to recover from morning sickness or to attend a quick medical appointment – should be able to save their additional earned sick time for future use.

- Closed school or childcare centers due to inclement weather must count as caregiving: When schools or childcare centers are closed due to extreme weather, children must be placed somewhere with 24/7 care and supervision. Initiative 1433 was passed to address a range of caregiving situations, which include emergency situations where children are without access to adult care. Employees who have earned sufficient paid sick time should be able to decide when to use that time to care for their children.

I hope you will take into account this important feedback. Thank you for all that you do.

(Submitted on 4/28/17 by Al Audette, Building Industry Association of Washington)

The Building Industry Association of Washington (BIAW) is the voice of the housing industry in the state of Washington. We are dedicated to promoting the vitality of the building industry and the housing needs of the state’s citizens. On behalf of our over 7600 members, we encourage the Department of Labor and Industries to consider setting the recording and reporting period the same at once per month.

WAC296-128-740 states that employers must provide written or electronic notification detailing the amount of leave earned and what is available. Under the proposed changes in recordkeeping an employer would have to update records each pay period which varies by employer. We believe it would be less taxing on employers to require notification of balances just like they do vacation, once a month. If an employee needs their balances during the month I’m sure their accounting team would work with them to get the information. This would allow employers to ensure compliance once a month instead of weekly in some cases.

Thank you for your time.

(Submitted on 4/28/17 by Julie D. Feller, Grays Harbor Community Hospital)

I would ask that consideration be made, in the rules, for exempting employers who already provide accrued paid sick leave at amounts higher that required by the initiative, allow for larger amounts of unused time to be carried over from year to year and report the current accrued amount on the pay stub. For example, if an employee accrued 3.7 hours of sick leave for every 80 hours worked, that employer exceeds the language of the initiative and should not have to add another accruing and/or reporting layer to their system merely to also meet the letter of the initiative.

Also I would like to see an exception made for those employers who allow employees to waive sick leave accrual in order to receive a premium on their wages. This would apply only to those employers who offer the choice between accrued paid sick leave or the increase on wage – not an employer who only offers a premium as a way to not provide sick leave accrual. This option is offered via the collective bargaining agreements here as well as policy for the non-union employees. If not exempted from the initiative, we will move to eliminate this pay option when we next bargain the collective bargaining agreements since the value of the premium is directly tied to the value of the accrued time the employee is waiving . This is a popular option for our employees and I believe we should be allowed to continue to offer this option.

Thank you for your consideration as you put the rules together on this new initiative.

(Submitted on 4/28/17 by Lauren Hipp)

To the Department of Labor and Industries:

Thank you for the opportunity to provide input on the draft rules for earned sick and safe leave in Washington. As a mom of young children and a small business owner, I am in full support of 1433 and the intent to make safe and sick leave available to all workers in Washington.

Washington moms, dads, and family members strongly supported Initiative 1433 on the November ballot because a living wage and earned sick time are critical to helping all families thrive. In fact, just 3.5 days of missed work due to illness mean losing an entire month’s grocery budget for an average family. [1] However, we are concerned that aspects of the draft rules from the Department undermine the intent of the initiative passed overwhelmingly by Washington voters.

As a small business owner and a member of MomsRising, a statewide organization with 40,000 members, I believe the final rules on earned sick and safe time must address the following:

- Paid sick and safe leave must be enforced as a monetary loss: Employers’ failure to provide paid sick leave as well as retaliation against employees for using sick leave should be considered and enforced as a monetary loss. The Department of Labor and Industry’s draft rule would only potentially penalize employers and provides no compensation to workers for lost wages or damages. A strong administrative remedy that includes compensation for lost wages and damages is vital for low wage workers who are unlikely to have access to an attorney to pursue a private right of action.

- Use of paid sick leave must be job-protected as prescribed in statute: Initiative 1433 is very clear that use of paid sick leave cannot count towards an absence that may result in discipline of the employee. The draft rules do not directly address these types of systems that count paid sick leave as a mark against the employee.

- Paid sick leave must be available in no more than one hour increments: Requiring employees to use more sick leave than needed hurts employees with limited sick leave banks. Employees who only need 30 minutes of earned sick time – whether to recover from morningsickness or to attend a quick medical appointment – should be able to save their additional earned sick time for future use.

- Closed school or childcare centers due to inclement weather must count as caregiving: When schools or childcare centers are closed due to extreme weather, children must be placed somewhere with 24/7care and supervision. Initiative 1433 was passed to address a range of caregiving situations, which include emergency situations where children are without access to adult care. Employees who have earned sufficient paid sick time should be able to decide when to use that time to care for their children.

I hope you will take into account this important feedback. Thank you for all that you do.

[1] http://www.epi.org/publication/the_need_for_paid_sick_days/

(Submitted on 4/28/17 by Eowyn Savela)

To the Department of Labor and Industries:

Thank you for the opportunity to provide input on the draft rules for earned sick and safe leave in Washington. Washington moms, dads, and family members strongly supported Initiative 1433 on the November ballot because a living wage and earned sick time are critical to helping all families thrive. In fact, just 3.5 days of missed work due to illness mean losing an entire month’s grocery budget for an average family. [1] However, we are concerned that aspects of the draft rules from the Department undermine the intent of the initiative passed overwhelmingly by Washington voters.

As a member of MomsRising, a statewide organization with 40,000 members, I believe the final rules on earned sick and safe time must address the following:

- Paid sick and safe leave must be enforced as a monetary loss: Employers’ failure to provide paid sick leave as well as retaliation against employees for using sick leave should be considered and enforced as a monetary loss. The Department of Labor and Industry’s draft rule would only potentially penalize employers and provides no compensation to workers for lost wages or damages. A strong administrative remedy that includes compensation for lost wages and damages is vital for low wage workers who are unlikely to have access to an attorney to pursue a private right of action.

- Use of paid sick leave must be job-protected as prescribed in statute: Initiative 1433 is very clear that use of paid sick leave cannot count towards an absence that may result in discipline of the employee. The draft rules do not directly address these types of systems that count paid sick leave as a mark against the employee.

- Paid sick leave must be available in no more than one hour increments: Requiring employees to use more sick leave than needed hurts employees with limited sick leave banks. Employees who only need 30 minutes of earned sick time – whether to recover from morning sickness or to attend a quick medical appointment – should be able to save their additional earned sick time for future use.

- Closed school or childcare centers due to inclement weather must count as caregiving: When schools or childcare centers are closed due to extreme weather, children must be placed somewhere with 24/7 care and supervision. Initiative 1433 was passed to address a range of caregiving situations, which include emergency situations where children are without access to adult care. Employees who have earned sufficient paid sick time should be able to decide when to use that time to care for their children.

I hope you will take into account this important feedback. Thank you for all that you do.

[1] http://www.epi.org/publication/the_need_for_paid_sick_days/

(Submitted on 4/28/17 by Jack Stansfield)

To the Department of Labor and Industries:

Thank you for the opportunity to provide input on the draft rules for earned sick and safe leave in Washington. Washington moms, dads, and family members strongly supported Initiative 1433 on the November ballot because a living wage and earned sick time are critical to helping all families thrive. In fact, just 3.5 days of missed work due to illness mean losing an entire month’s grocery budget for an average family. [1] However, we are concerned that aspects of the draft rules from the Department undermine the intent of the initiative passed overwhelmingly by Washington voters.

As a member of MomsRising, a statewide organization with 40,000 members, I believe the final rules on earned sick and safe time must address the following:

- Paid sick and safe leave must be enforced as a monetary loss: Employers’ failure to provide paid sick leave as well as retaliation against employees for using sick leave should be considered and enforced as a monetary loss. The Department of Labor and Industry’s draft rule would only potentially penalize employers and provides no compensation to workers for lost wages or damages. A strong administrative remedy that includes compensation for lost wages and damages is vital for low wage workers who are unlikely to have access to an attorney to pursue a private right of action.

- Use of paid sick leave must be job-protected as prescribed in statute: Initiative 1433 is very clear that use of paid sick leave cannot count towards an absence that may result in discipline of the employee. The draft rules do not directly address these types of systems that count paid sick leave as a mark against the employee.

- Paid sick leave must be available in no more than one hour increments: Requiring employees to use more sick leave than needed hurts employees with limited sick leave banks. Employees who only need 30 minutes of earned sick time – whether to recover from morning sickness or to attend a quick medical appointment – should be able to save their additional earned sick time for future use.

- Closed school or childcare centers due to inclement weather must count as caregiving: When schools or childcare centers are closed due to extreme weather, children must be placed somewhere with 24/7 care and supervision. Initiative 1433 was passed to address a range of caregiving situations, which include emergency situations where children are without access to adult care. Employees who have earned sufficient paid sick time should be able to decide when to use that time to care for their children.

I hope you will take into account this important feedback. Thank you for all that you do.

(Submitted on 4/28/17 by Wendy Gordon, Center for Birth Midwives)

To the Department of Labor and Industries:

Thank you for the opportunity to provide input on the draft rules for earned sick and safe leave in Washington. Washington moms, dads, and family members strongly supported Initiative 1433 on the November ballot because a living wage and earned sick time are critical to helping all families thrive. In fact, just 3.5 days of missed work due to illness mean losing an entire month’s grocery budget for an average family. [1] However, we are concerned that aspects of the draft rules from the Department undermine the intent of the initiative passed overwhelmingly by Washington voters.

As a member of MomsRising, a statewide organization with 40,000 members, I believe the final rules on earned sick and safe time must address the following:

- Paid sick and safe leave must be enforced as a monetary loss: Employers’ failure to provide paid sick leave as well as retaliation against employees for using sick leave should be considered and enforced as a monetary loss. The Department of Labor and Industry’s draft rule would only potentially penalize employers and provides no compensation to workers for lost wages or damages. A strong administrative remedy that includes compensation for lost wages and damages is vital for low wage workers who are unlikely to have access to an attorney to pursue a private right of action.

- Use of paid sick leave must be job-protected as prescribed in statute: Initiative 1433 is very clear that use of paid sick leave cannot count towards an absence that may result in discipline of the employee. The draft rules do not directly address these types of systems that count paid sick leave as a mark against the employee.

- Paid sick leave must be available in no more than one hour increments: Requiring employees to use more sick leave than needed hurts employees with limited sick leave banks. Employees who only need 30 minutes of earned sick time – whether to recover from morning sickness or to attend a quick medical appointment – should be able to save their additional earned sick time for future use.

- Closed school or childcare centers due to inclement weather must count as caregiving: When schools or childcare centers are closed due to extreme weather, children must be placed somewhere with 24/7 care and supervision. Initiative 1433 was passed to address a range of caregiving situations, which include emergency situations where children are without access to adult care. Employees who have earned sufficient paid sick time should be able to decide when to use that time to care for their children.

I hope you will take into account this important feedback. Thank you for all that you do.

[1] http://www.epi.org/publication/the_need_for_paid_sick_days/

(Submitted on 4/28/17 by Jim MacRae)

I believe we need the following:

- Paid sick and safe leave must be enforced as a monetary loss: Employers’ failure to provide paid sick leave as well as retaliation against employees for using sick leave should be considered and enforced as a monetary loss. The Department of Labor and Industry’s draft rule would only potentially penalize employers and provides no compensation to workers for lost wages or damages. A strong administrative remedy that includes compensation for lost wages and damages is vital for low wage workers who are unlikely to have access to an attorney to pursue a private right of action.

- Use of paid sick leave must be job-protected as prescribed in statute: Initiative 1433 is very clear that use of paid sick leave cannot count towards an absence that may result in discipline of the employee. The draft rules do not directly address these types of systems that count paid sick leave as a mark against the employee.

- Paid sick leave must be available in no more than one hour increments: Requiring employees to use more sick leave than needed hurts employees with limited sick leave banks. Employees who only need 30 minutes of earned sick time – whether to recover from morning sickness or to attend a quick medical appointment – should be able to save their additional earned sick time for future use.

- Closed school or childcare centers due to inclement weather must count as caregiving: When schools or childcare centers are closed due to extreme weather, children must be placed somewhere with 24/7 care and supervision. Initiative 1433 was passed to address a range of caregiving situations, which include emergency situations where children are without access to adult care. Employees who have earned sufficient paid sick time should be able to decide when to use that time to care for their children.

RE: Washington Retail Association's Response to L&I’s Draft CR 102 Paid Sick Leave Rules (I-1433 Rulemaking)

Washington Retail Association has identified some concerns and requests clarification with certain aspects of the draft rules.

The Proposed Draft CR 102 Rules are Significant Legislative Rules as Defined under RCW 34.05.328:

While L&I has acknowledged that the rules are “significant legislative rules” you have stated that any portion that is not mandatory in the rules is not covered. WRA disagrees with this assessment. We believe that all the proposed draft CR 102 rules are "significant legislative rules" as defined under RCW 34.05.328, and the rule making process should include the cost benefit analysis and other requirements of all of that statute. This will not result in much extra effort for the Department, insofar as the impact of I-1433 falls disproportionately on small businesses across the state.

Any rules enacted as a result of I-1433 will therefore, at a minimum, undoubtedly require a detailed small business economic impact statement (SBEIS) as required by RCW 19.85.025. Thus, since L&I will be required to perform an economic impact analysis in any event, the full-blown cost-benefit analysis and other steps required by RCW 34.05.328 will assist informing the agency and stakeholders on options that meet the requirements of I-1433 in the least disruptive manner possible.

In addition to the above statement the following are some of the concerns WRA has with specific sections of the proposed CR 102 rules. This is not a complete list. WRA continues to review the draft and will supplement its response as we complete the review.

WAC 296-128-600
“Absences exceeding three days” is not consistent with the initiative. The proposed draft adds to the definition “three consecutive days an employee is scheduled to work”. This is not what the initiative states. The initiative states, “For absences exceeding three days, an employer may require verification that an employee's use of paid sick leave is for an authorized purpose”. L&I has added additional requirements not contemplated in the initiative.

WAC 296-128-670
We believe there needs to be additional clarification on who is or is not the same employer. The same employer should be defined as an employer that has been identified by the Department of Labor and Industries as having same ownership and is identified with the same account id.

WAC 296-128-710
WRA has concerns that a written policy and agreement for frontloading is required. Employees and employers should be able to address this issues on a case by case basis. If the employee has been made aware that they have been allowed sick time, but have not accrued the time and it will be deducted from their final check if they leave or are terminated prior to accruing leave no further agreement should be necessary.

WAC 296-128-730
The department has proposed a rule that does not allow an employer to deduct from the paid sick leave accrual hours when an employee misuses the paid sick leave. This draft does not make any sense. if an employee takes paid sick time away from work, but is found to have taken the paid time off for an unauthorized purpose, an employer should be able to deduct that time from the employee’s accrued paid sick leave. If someone abuses their leave benefits, employers should be able to deduct from the employee’s accrued benefit.

WAC 296-128-770 though 800
The draft CR 102 introduces a new concept of Non-Monetary Violations. We would urge L&I to be cautious going forward with theses sections of the rules since they introduce concepts that have not been addressed by L&I. Theses sections have the potential for causing substantial confusion and the possibility of litigation. More time is necessary to address these concerns then has been allotted in this process.

WRA continues to review the draft and will supplement its response as it complete that review. Thank you for your consideration of these comments.

Tammie Hetrick, Senior Vice President Retail Services
Washington Retail Association

• If an individual can carry over 40 hours each year potentially an individual can accrue an amount that is more than the allowed 12 weeks of FMLA – put cap at 12 weeks?

• Clarification that if age eligible for benefits (65) then you cannot use your paid sick leave when you are collecting social security – No double dipping!

• If an employee is out for 6 months or more it should be required that they apply for social security disability to stop receiving sick leave payments once approved application?

o Under Reasonable Notice – “If the need for paid sick leave is unforeseeable the employee must give notice to the employer as soon as practicable, but no later than the end of the first day the employee takes such paid sick leave.” – How can a business operate and call for overtime or replace an employee if they do not have to notify the Employer until end of the first day?

WAC 296-128-710(2)
This section discusses that employers may frontload paid sick leave, as long as the employer ensures that an employee’s frontloaded time is equal to one hour for every forty hours worked. What is implied by this section is that frontloading a prorata portion of paid sick leave, based on the number of hours an employee is expected to accrue throughout the course of the year would be an acceptable way to comply with the law, as long as the employer ensures that the prorata award meets the one hour for forty hours worked requirement based on the hours the employee actually does work.

My comment is one for clarification. What is the required timeline for an employer’s award of additional paid sick leave time, if needed? Would an employer be required to keep a current accounting of hours worked, and award additional paid sick leave hours as soon as the paid sick leave that would have been accrued exceeds the amount frontloaded? Or would it be sufficient for an employer to do this accounting on an annual, semi-annual, or quarterly basis?

WAC 296-128-750
This section discusses retaliation. In many other jurisdictions, absence control policies, such as a “well pay policy” are addressed. My question is whether an absence control policy (i.e., one that provides additional paid time off for perfect attendance) would be considered retaliation under this law (i.e., if someone exercises their right to paid sick leave, they would not be penalized, but would be ineligible for the additional paid time off under a well pay policy). If an absence control policy is permitted, it may be helpful to establish the term and limits of such a policy. For example, perhaps and absence control policy may be permitted, but may not consider hours taken under the sick leave law toward the total absences. Another example may be that absence control polices are permitted as long as they are not linked to any adverse action for the employee.

(Submitted on 4/25/17 by Terry Davenport II, State Board for Community & Technical Colleges)

(1) Are there exceptions/considerations/rules for the special student employee types [e.g. Federal Work Study, State/Local Work Study and simply “student” employee’s]?
(2) Community & Technical Colleges students can and do attended multiple colleges, for reinstatement of accrued leave for students are there rules/expectations for tracking and sharing accrued leave balances between college districts? Will colleges be expected to coordinate this sick leave benefit across college districts?
(3) Community & Technical Colleges P-T Faculty can and do work at multiple colleges, for reinstatement and usage of accrued leave for these staff what are the rules/expectations for tracking and sharing accrued leave balances between college districts? Will colleges be expected to coordinate this sick leave benefit across college districts?
(4) This may be more of a policy question for our administration and I will ask it here in-case you have input/feedback/thoughts on the matter. In the case of Federal & State Work Study, who is responsible for the payment of sick leave usage, does/can this law impact Federal & State Work Study rules etc?

(Submitted on 4/24/17 by Sarah Dodson, Colmac Coil Manufacturing, Inc.)

Is there any situation that would require the rate of pay for sick leave to be paid out at an overtime rate?

What if we pay overtime on hours paid instead of hours worked? Would we be required to pay overtime on sick pay?

The rate of pay needs to be looked at carefully. I believe there are many situations that could hurt the employer in this section. If the employee is normally at shop rate but scheduled to go on a repair trip. Let’s say the shop rate is $17 and the travel rate is 1.5 or said to be paid at an over time rate. Would we then have to pay the 1.5 to the sick employee and then again to the employee we sent in his place? What if the trip was put off until the following week when the sick employee recovered? Would we then have to pay the 1.5 travel rate to the employee while he was sick and then again when he or she actually traveled?

In a situation where an employee works on commission: Let’s use a dealership for example. A car salesperson just got a paycheck where they had record sales and then calls in sick. Does the dealership really have to pay them as if they were at work making record sales when they are doing nothing?

It seems to me that sick leave rate of pay should be calculated more like vacation pay is. It should never pay higher than being at work.

There is no hardship created in paying the employee their base wage for being home sick.

Please give us defined specifications as to what kind of employee this pertains to. We have a pool of more than 200 substitutes (much like a Substitute Teacher). We have 30 branches in 5 counties, each branch has several subs to pick from. They do not have scheduled hours, there is no guarantee of specific hours each month. They are called as needed to fill in for a Librarian that is ill or on vacation. They are not required to fill in when called if they have other plans or commitments. They can accept the request or not. Would the sick leave policy pertain to this class of employees?
There is also a lot of turnover. Most of our subs are retired and this is something they use to keep busy for a little extra cash.
If this law did include this class of employees it would be an extreme hardship and time consuming to try and track it. If called to fill in for a few hours and they say no, it would be unfair to allow them to be paid sick leave when they could turn down a request at any time.
I hope the law would have the language of Scheduled Employees. This would help immensely to have very specific wording and clarification.

1. What defines a family member?
2. If an employee leaves prior to working 90 days, what happens if they are rehired? Do they get credit for time worked previously?
3. Will a company policy that is more generous than this policy suffice as long as all other criteria are met?
4. If a business suspects abuse, can they require a doctors note to substantiate the absence? And, if so is this done at the employee or employer expense?