I-1433 Draft Proposed Rule Language

Regarding re-instatement of leave please confirm what would happen if someone separates with over 40 hours of accrued sick leave and returns within 12 months but in the next plan year. Would all of their leave be reinstated or just the 40 hours that would have rolled over if they had continued to be employed. I think it makes the most sense and fairest to their co workers to be the 40 hours but it needs to be clarified.

Please provide further clarification for school districts who already have RCWs and WACs surrounding sick leave that we must comply with. Also, how does this apply to substitute employees and seasonal coaches? Presently, if a substitute is sick, they simply do not accept a job for that day. School districts already suffer a severe shortage of substitute teachers. Substitutes can work in multiple districts and can have varying rates of pay for multiple positions. Substitute teachers accept either half-day or full-day assignments only. The proposed language would make it extremely difficult to know what rate of pay to pay sick leave to a substitute. It would also be difficult to track all substitute and coaches activity, cumulative hours, and 90-day eligibility, as many substitutes come and go at various points throughout the year. Please discuss with the legislature the underfunding of school districts. How do school districts pay for the monitoring and benefit of this new requirement and account for this in their budgets?

As an at-will employer, how will this affect no call, no show - attendance violations, if the employee has until the end of the day to let the employer know 'today was a sick leave day'?
An employee is not required to find a sub/replacement worker to cover their shift when using paid sick leave? This raises concern with staffing/scheduling.
Seasonal/summer staff accrue paid sick leave and will be reinstated any hours not used in the prior season when they are rehired within twelve months.
The fact we cannot cap sick leave, this must be an oversight requiring clarification.

Thank you for the opportunity to provide feedback. I am concerned that the proposed rule prohibits a cap on sick leave, even when the accrual rate and carryover exceeds the requirements of the law:
Accrual.
1) An employee must accrue at least one hour of paid sick leave for every forty hours worked
as an employee. Accrual of paid sick leave may not be capped, and employees must accrue
paid sick leave for all hours worked. Employers may provide employees with a more
favorable paid sick leave accrual rate.

The WCLS union contract provides for sick leave accrual at a rate of 8 hours per month, significantly more generous than required by the new law. Sick leave accrual carries over year to year, with no limit, until an employee reaches 960 hours, at which point, the accrual is capped (this represents 10 years of accrual for a full-time employee).

Under the proposed rules, WCLS would not be allowed to cap the sick leave accrual at this point, even though it is significantly more than what is required by law. Under the law, an employer must allow 40 hours of carryover, and allow the employee to continue to accrue. This means that an employee would be able to accrue (legal minimum) 92 hours (40 carried over, plus 52 additional accrued at the rate of 1 hour per 40 worked in a year). I would propose that employers be allowed to cap accrual as long as the cap exceeds 92 hours.

Thank you for your consideration. Christina Read, WCLS HR Manager

For absences exceeding three days, an employer may require verification that an
employee’s use of paid sick leave is for an authorized purpose under RCW 49.46.210(b)..

This statement says employers can require medical verification of an illness puts an undue burden on employees who may not have health insurance. There are many occasions when someone might miss multiple days of work and not need to see a physician. Requiring someone to spend $200 or more on a doctor visit in order to "prove" they need to be gone from work is ridiculous.

Comments on Draft I-1433 Paid Sick Leave Rules

On behalf of our small business members, please accept these comments on the draft rule for I-1433 Paid Sick Leave released on April 7, 2017.
• L&I has failed to address the disproportionate impact of these rules on small businesses with 50 or fewer employees as required by RCW 19.85. RCW 19.85 requires the Department to minimize any disproportionate economic impact of a rule on small businesses with 50 or fewer employees. This rule will apply to the 140,000+ small businesses in Washington State that employ 51%, 1.3 million workers, of the state’s private sector workforce. The U.S. Small Business Administration has found that government regulations cost small businesses 36% more per employee to comply with, than what it costs a larger business. The disproportionate cost impacts on small businesses threaten the very existence of a small business. RCW 19.85 requires the Department to (a) Reduce, modify, or eliminate substantive regulatory requirements; (b) Simplify, reduce, or eliminate recordkeeping and reporting requirements; (c) Reduce the frequency of inspections; (d) Delay compliance timetables; (e) Reduce or modify fine schedules for noncompliance; or (f) Any other mitigation techniques including those suggested by small businesses or small business advocates.

• Small employers with 50 or fewer employees should not have to demonstrate any hardship to implement a minimum 4-hour sick leave policy provided the employer is demonstrating a good faith effort to comply with the rules. It has already been documented by the U.S. Small Business Administration that small businesses already face a 36% higher cost per employee hardship in complying with government rules and regulations.

• The statue does not require any small businesses to create a notification document about the state Paid Sick Leave law, the rate workers accrue Paid Sick Leave, and the anti-retaliation provisions of the law. It is the responsibility of the Department to notify workers of the state Paid Sick Leave law, the rate workers accrue Paid Sick Leave, and the anti-retaliation provisions of the law. This notification requirement should be eliminated from the rule. If this notification requirement is not eliminated from the rule, the Department must prepare and provided at no cost by L&I to small businesses and the business may use the Department’s notice to meet these notification requirements and cannot be held liable for any civil action for these notification requirements due to the use of this notice.

• L&I should provide small businesses with sample leave notification documents that, if used, shall not subject the employer to any civil penalty. Requiring a small business to prepare such notification policy and notification document in order to comply with the rules would require the small business to hire an attorney at considerable cost in order to comply.

• L&I should provide small businesses with sample verification policy and notification documents that, if used, shall not subject the employer to any civil penalty. Requiring a small business to prepare a verification policy and notification document in order to comply with the rules would require the small business to hire an attorney at considerable cost in order to comply.

• L&I should provide small businesses with a sample discipline policy and notification documents that, if used, shall not subject the employer to any civil penalty. Requiring a small business to prepare a discipline policy and notification document in order to comply with the rules would require the small business to hire an attorney at considerable cost in order to comply.

• Small businesses should not be required to provide a monthly statement of the amount of sick leave a worker has accrued, amounts used, and amounts remaining available on a monthly basis but rather provide a statement on a quarterly basis in order to reduce costs.

• Small businesses should not be liable for inadvertent negligible errors in tracking accrued sick leave, used sick leave, and available sick leave provided the employer is demonstrating a good faith effort to comply with the rules.

• Employees cannot take paid sick leave during hours the employer had not previously asked the employee to work.

• Consistent with RCW 34.05.110, small businesses should not be subject to a civil penalty for a first time violation of the rules.

• The Department of Labor and Industries must provide consultation services to small businesses to comply with these rules and the consultation service cannot issue any civil penalty for any violations found provided the business corrects the violation within a reasonable period of time. The consultation service must be totally separate from any enforcement personnel of the Department. Good faith compliance with written instructions from the consultation service shall not subject the small business to a civil penalty for violating the rule.

• The I-1433 paid sick leave rules must only apply to employees as defined in RCW 49.46 and not apply to employees exempt from the requirements of 49.46.

As a school District we have RCW's that pertain to leave accrual, carry over, maximums, transfer, shared leave, cash outs, etc. How does this new law and the laws governing school districts work together? They seem contradictory. Should School Districts be excluded from this law as we have our own laws in regards to sick leave.

A couple of items: 1) why is there no provision for a third party to file a complaint? Most workers are in a vunerable position in regards to employment. Meaning that being an employee in Washington means that you are "At Will", and the employer can terminate you for basically anything. The ability to have a third party file the complaint gives an employee an extra layer of protection from retaliation. 2) The Department MUST track ALL violations even if in WAC 296‐128‐770 section 2 (b)(c)(d) apply. There must be an escalation strategy in writing BEFORE the rules are implemented. Otherwise you get into the same situation that prevailing wage is in. The Department using the above sections to allow companies to get off the hook time after time. At least if you track all the violations, you can easily see the trend, and proceed accordingly.

Please clarify when current employees are eligible to use their accrued leave. The draft specifies that we will start counting work hours on January 1st. But under usage it says they can use accrued leave on the ninetieth day after commencement of their employment. If they worked full time in January 2018 they could have accrued 4 hours of sick leave well before the 90 days. Also we have employees that come and go year after year. Based on the definitions ‘Commencement of employment’ could be when they worked for us five years ago. If existing employees can use leave before 90 days in 2018 then 'Existing employee' should be in the definitions - do they need to be employees immediately before January 1st or within the previous month, year, six months, etc.

This rule will have huge impacts on the over 140,000 small businesses in Washington State that employ 51.4% of the private sector workforce in Washington State. This rule will put many small businesses at a competitive disadvantage. How will L&I reduce the disproportionate cost impacts of this rule on small businesses with 50 or fewer employees as required by RCW 19.85? L&I has failed to include any small business cost reduction provisions in its draft rule as required by law.

WAC 296-128-670 Reinstatement of accrued paid sick leave upon rehire:
School District's also have a provision to transfer sick leave between WA school districts. Is there or should there possibly be language in the rules regarding the transfer of sick leave between districts? I know that this will become a question we will all ask at one time or another.

I too would like to see temporary employees working less than six months exempt from this regulation. Also, the law should be more clear about what can be done with employees who abuse sick leave. This issue is difficult as is and becomes more so when sick leave is considered an entitlement as it is in this proposed law.

Usage: 5) speaks to using in more than 1 hour increments but no more than 4. As a school district our substitute teachers are required to work in half or whole days, 3.75 or 7.50 hours per day. Is not in the best interest of our students to have a new substitute every hour. In 5)(a) you list factors to consider about whether requiring usage in more than 1 hours increments imposes an undue hardship.

I would ask that you consider adding language exempting substitute teachers from the minimum 1 hour, maximum 4 hours, as most of us do require they work in half or full days for the benefit of our students and continuity of classroom instruction. Substitute teachers are on-call and they accept jobs for the day based on half or full days.

I concur with comments regarding the need for clarification as to the following: (i) are temporary employees eligible for paid sick leave (the current language suggests yes, but with no guidelines as to how this would be administered); (ii) must an employer now track exempt employee hours for purposes of calculating sick leave and, if so, are there any caps on the amount of leave that may be earned? Additionally, the law should be clarified to permit medical verification where there is a reasonable suspicion of leave abuse.

Two issues requiring clarification

1. Students. As a private institution of higher education, Whitman College offers part-time, and often sporadic, paid campus employment to several hundred students per academic year, as a means of helping them defray college expenses. Students engage in this part-time work, as their schedules permit, as they pursue their academic studies. The prospect of colleges and universities being required to provide such students paid sick leave seems, for this particular population, not in keeping with the intent of the law. We would urge the exclusion of part-time student employees in the final proposed rules.

2. Temporary employees. Whitman College occasionally hires nonexempt temporary employees for brief periods, for a host of reasons. Most work only for a few weeks in a given year. Providing paid sick leave to this particular population doesn't seem to make sense. We would urge the exclusion in the final rules of temporary employees who work under a total of 24 weeks in a year.

I don't see any clarification for exempt employees and determining the hours worked. We do not track hours worked for exempt employees, should we assume 2080 and therefor award 52 hours either front loaded or accrued on a per pay period basis?

I understand that the Washington Sick Leave Policy will accrue at a rate of 1 hour for every 40 hours worked, with a maximum carryover from year to year of 40 hours.
Am I then left to understand that the maximum sick leave that an employee can use in any one year is only limited by their own accrual? And, that this balance if unused will expire (with the exception of carryover) at the end of that year?
Also - Is there a provision stating that employers are not obligated to pay this balance as cash, if unused, at the time of separation?

Cover letter dated April 7 regarding cost benefit analysis.
Though the department does not have the authority to change the accrual of paid sick leave, and is required to enforce this initiative. The department does have the authority to decide if workers under the age of 18, restricted from certain duties and working hours, be determined by the department. Teen workers were never addressed in initiative I-1433.
Many small business rely on teen workers under the age of 18 for their business, as entry level, first time or "starter jobs".
By including teen workers, as adults for the sake of compensation, has and will continue to create undo finacial hardship and impacts to small businesses. Restrictions for teen workers are substantial, and businesses work hatd to hire teens nd comply, this added hardship will deter employers from hiring teens.
The department requires an employee over the age of 18 be present when minors or teens are working certain hours and the department requires teens to have both school and parental consent annually to work. Additionally a school or parent can add additional restriction to the teen worker to ensure the workers education does not suffer.
This new initiative, is written specifically to address a working wage for people 18 years and older, this is what voters were told and voters believed they were voting on. Providing a 16 year old with paid sick leave and a livable wage was not the intent if rhe initiative nor was it information that was readily disclosed or easily obtained by the average voter.
The initiative speficially gave the department the authority to make this determination for teen workers.
The department has broadly applied this initiative to minor workers, due to what I beleive to be the extremly short timeline between the passing of the initiative and the start of the rule.
Teen workers who cannot provide the same level of work and whom are required to have "adult" supervision per safety regulations, should not be paid "adult" liveable wages and paid sick leave when they in many cases are extra help not required staff.
This new rule draft should address Teen workers specifically by
1- why teen, 16/17 year old, workers are considered adults under the intent of this initiative. When the department has determined these workers must have other safety and labor restrictions based only on the age of the worker, why is an adult liveable wage and sick leave required by law.
2 - why A small business cost analysis is not required by the department when the dpartment has the sole discretion in this matter for teen workers. The department does have the discretion to make the rule and therefore should be providing a cost analysis before Including teen workers under this initiative and rule making.
The department did not sufficiently address or assess the cost impacts for small businesses before broadly applying this rule to teen workers as required.
2 - Washington schools require parental notes or some proof from a parent regarding an absence from school.
Now a teen worker is not required to provide parental note when taking sick leave.
An employer should have the ability to request from parents a written statement as to why the teen is using sick leave to ensure it is being taken appropriately and make sure the parent is aware the teen is not at their scheduled Work shift.
Example: a teen worker leaves school and is scheduled to work an after school shift, the worker calls in "sick" to work. If the teen worker becomes missing or is harmed somehow the parent could be unaware the teen is not actually at work. Can employers be help responsible for the teen worker during the time they were scheduled to work but called in to use paid sick leave? Just as schools ate required to notify parents of teens missing school?
Question: If a teen workers shows up for school are they allowed to call in sick for work?
If an teen is sick from school is a teen worker allowed to work?
If a teen worker calls in sick for work are employers required to notify the school or parent of a no show?
If a teen worker calls on sick and provides a doctors note that provides medical information to an employer that the employer knows is detrimental to the health or safety of the minor worker is the employer required to notify the parent?
I believe all these issues are resolved by keeping minor workers excluded from initiative I-1433 and keeping them at the previously estblsihed minimum wage or the 85% of minmum wage that is used for workers under the age of 16.
If teen workers are to be included under initiative I-1433 teen worker rules need to be specifically addressed in this rule.