I-1433 Initial Feedback

The Washington State Dairy Federation agrees with and supports the initial and supplemental comments submitted by the Association of Washington Business.

It is important that rules clearly specify that any kind of employer attendance control policy that assigns points or other factors that could lead to discipline for use of leave under this policy would constitute unlawful retaliation under the law. Seattle addressed this issue through rules for their paid sick leave policy, and can provide good guidance for 1433 rulemaking (SHRR 70-470).

Initiative 1433 requires employers to provide paid leave to their employees who work in the state of Washington, in order “to promote public health, family stability, and economic security. It is in the public interest to provide reasonable paid sick leave for employees to care for the health of themselves and their families” (RCW 49.46.200). This stated intent of the law should inform interpretation of initiative language and the rules adopted to implement it.

Exemptions: The law does not allow for exemptions, waivers, or carve outs due to collective bargaining agreements, premium pay, immigration status, part-time, temporary, or seasonal status, or other factors besides those clearly spelled out in law.

Existing employer policies: The law sets a minimum, not maximum standard. Rules should clarify that employers can provide more generous leave with more generous terms, including allowing leave to be used for additional purposes. Rules should also clarify that providing leave under a PTO plan is permissible, so long as all requirements of the law are met and leave for the purposes laid out in the law is available without advance scheduling, subject to reasonable notice.

Reasonable notice: Seattle’s rules provide a good model (SHRR 70-320-360).

Caps: The rules should make clear that employees have the right to at least 1 hour for every 40 hours worked, including for overtime hours. The law allows employers to limit carryover of earned leave from one year to the next to 40 hours, but does not allow any other cap on accrual or usage. Employees are entitled to take all of their accrued leave during the course of a year in addition to whatever leave they carried forward. Frontloading does not eliminate the right of an employee to carry forward up to 40 hours of unused PSSL.
For example, an employee who worked 2,000 hours in a year would accrue 50 hours of PSSL. If they used 16 hours during the year, they would carry forward 34 hours. If they became seriously ill 6 months into year 2, after working an additional 1,000 hours and accruing 25 hours more leave, they would have 59 hours of PSSL available. Upon returning to work, they would resume accruing PSSL, and would also have that time available for use.

Shift swapping: The initiative clearly prohibits employers from requiring employees to find a substitute to cover their shift. However, nothing in the law prohibits an employer from allowing employees to voluntarily swap shifts instead of taking sick leave, or an employee from voluntarily swapping shifts instead of using sick leave.
Unlike some municipal PSSL ordinances, the initiative does not allow eating or drinking establishment employers to deduct sick time without paying the worker sick time if the employer provides an alternative shift. As in other areas where more favorable to employees, the state law would take precedence over municipal ordinances in this respect.

How would School District Substitutes use sick leave when they do not have a set work schedule and the only reason they would be asked to work is because an employee, who does have a set work schedule, is on leave?
Is it possible for School District Substitutes to be exempted from this initiative?
(Submitted by: Wanda Liner, Bremerton School District)

Removed by moderator.

Do new employees start accruing sick leave from date of hire? I see that it says they can use accrued sick leave after 90 days, but I don't see where it says at what point that they begin to accrue it. It would be beneficial for employers who have waiting periods (ours is 90 days) before a new employee begins to build his/her sick leave. Otherwise it will be cumbersome and confusing to employers and employees to have different benefit policy waiting periods. If the waiting period was allowed to follow the employer's standard benefit waiting period, as long as it doesn't exceed a certain number of days, this would be extremely helpful.
(Submitted by Mickey Thurman, Levee Lumber, Hoquiam)

I would like to see additional guidance on acceptable use of this leave and it's effect on attendance policies. Here is an example to illustrate my concern- John Employee accrues 52 hours of sick leave per year. John arrives late to work an hour at a time 52 instances per year for "not feeling well" each of those 52 mornings. Can we count these as late occurrences subject to discipline or are these occurrences protected? What mechanisms in the law can prevent this type of abusive situation? I would like to have a combined sick/vacation PTO program now that I-1433 is in place but we need foreseeable notice for leave to effectively run our business. If each of our 130 employees starts taking 6-7 days per year of unplanned absence that is over 6,200 hours scheduled hours of production that we cannot necessarily recuperate!
Please consider abuse and it's affect on operating a business in the final rules. Thank you.

Good morning,

I have some questions that I would like answered or included in the final ruling:

• Are any employers exempted from the paid sick leave requirement of initiative 1433?

• Do the paid sick leave requirements apply to county, city and federal government employers/entities?

• What about Seasonal/Extra Help Workers, are they exempt from the paid sick leave requirement of initiative 1433?

• What is considered “reasonable”?

1. For part-time employees who work random hours, there must be a definition of what is required for payment of sick leave – how many hours if they call in sick one day.
2. Definition of “employee.” My input: this should be limited to employees who work at least 10 hours per week. I don’t feel that temporary employees should be included, but set a limit such as those working for 90 days or more, at least 10 hours per week.
3. We offer Paid Time Off to employees. This can be used for any earned time off. I understand that we can use our PTO as sick leave, if it is accrued per the new law, but will we need to record whether the time taken was taken specifically because an employee was sick as far as carry-over? One example: after one year an employee takes earned 40 hours off for vacation. A month later they get sick for two days, after payday. The employee states that they want to use 16 hours’ sick leave because they haven’t used sick leave yet, but will they be entitled to it because they used their 40 hours for vacation and not sick leave?
4. How is an employer to determine whether the time taken off falls under the allowed usage? We need some definition of what an employer is expected to do. There is only so much we can ask of employee without crossing over into protected personal information.
5. One final comment. This is going to force our company to entirely rewrite our PTO policy, specifically because of the “hours earned by hours worked” portion. We award PTO time for length of employment, such as after 90 days, a year, etc. We just rewrote our entire paid time off plan a few years ago so that we wouldn’t have to track sick, funeral, and vacation time. We are probably in compliance with the new law, but with summer overtime hours, and the compliance factor, we will need to create new bookkeeping procedures and an entirely new policy for employee paid time off. It’s a big deal for small employers who don’t have a large staff to handle these policies.

We have questions regarding being sick on overtime days. If you are sick on an overtime day, will you be paid sick time at the applicable overtime rate? That rate is the normal rate for overtime. Since the sick leave is mandated by law, it should not be counted in prevailing wage as a benefit in regards to prevailing wage. Prevailing wage is a combination of true wages plus benefits. Benefits fraud is the easiest wage theft to conceal. The reason we do not recommend that it is a part of prevailing wage is that even though it could be considered a benefit, not all employees will receive it. IE: a worker that works for the company less than 90 days. A worker who does not get sick, or ever use sick leave (at the end of the year they loose all but 40 hours). A seasonal worker that only develops a few hours of sick time in the year. Those prevailing hours and pay must stay with the worker to prevent abuse and wage fraud.

(Submitted on 2/22/17 by Angela Mariani, Spokane County Human Resources)

Good afternoon,

As we are in committee, preparing to set policy and build software for our HRIS system. Several questions came up in regards to employer exemptions and Seasonal/Extra Help Workers:

• Are any employers exempted from the paid sick leave requirement of initiative 1433?

• Do the paid sick leave requirements apply to county, city and federal government employers/entities?

• What about Seasonal/Extra Help Workers, are they exempt from the paid sick leave requirement of initiative 1433?

• What is considered “reasonable”?

Extra-Help: Works to cover peak or emergency workloads and necessary vacation relief. Insofar as possible, extra help work will be offered to persons from eligible lists. Extra help personnel shall not be employed for more than five months in any 12-month period in the same department. A month of extra help employment is considered to be 70 or more hours. Extra help personnel who work less than 70 hours per month may work for an indefinite period. Except in unusual or emergency situations, extra help personnel must meet the minimum requirement of the applicable county job classification.

Seasonal: Works at specific times of year or on special projects to meet departmental needs. Time of employment generally exceeds five months but less than twelve months. Only retirement benefits are paid, unless labor agreements specify otherwise.

Thanks so much-Angee

I feel the new law effective 2018 is too cumbersome to administer. We have a policy in place for Personal time (which includes sick leave and vacation, etc.) for all permanent employees. Temporary employees would require a new set up for sick leave that appears would have to be manually monitored on a bi-weekly pay period basis. Any thought to a revision? Thank you very much.

We are an Event Facility with "On Call" event driven staff or temporary workers. These employees may not work consecutively unless there is an event to warrant it. They also may work non-consecutive days for a couple months then nothing for the next 6 months. How would the rules apply to these type of employees?

(Submitted on 2/20/17 by Karen Galipeau Forner, K-Solutions Law, PLLC) Many employers, including my own firm, award PTO – Personal Time Off – that can be used for vacation, sick days or any other reason. If an employer awards PTO that is unrestricted and as long as PTO hours meet or exceed the hours required by I-433, then PTO should be considered as meeting the requirements of I-433.

Rules need to specify the correlation and adoption with any existing CBA work rules, other local ordinances and the new paid sick leave ordinance. Also, whether or not a waiver be obtained through a CBA on the paid sick leave ordinance.

Clarification as to the specific process for accruals of paid sick leave, maximum allowed annually and what happens to earned but unused accruals, would be helpful.

(Submitted on 2/16/17 by Gary Smith, Independent Business Association)

Good Day:

On behalf of small businesses, we recommend that the Department add to its list of I – 1433 rule issues: How will L&I comply with RCW 19.85 in the rules to implement I-1433?

(Submitted on 2/16/17 by Holly Silva, Valley View Health Center)

Will there be guidance or clarification to employers on whether an existing leave policy that combines all types of leave (vacation and sick) that already exceeds the initiatives requirements of hours be acceptable?

Or will employers need to have separate leave policies to illustrate leave types and compliance with rules?

Thanks for your time and efforts on this.

(Submitted on 2/16/17 by Janet Holt, Hawkeye Accounting)

Would owners that are on the payroll of the company also be required to receive this sick leave initiative?

What kind of record keeping would be required and how much additional time to file would this be? How often as well?

Is this required by all employers in Washington State no matter how many employees they have?

If the employee leaves a company is the employer required to pay them for unused sick leave accursed?

Is the employer required to allow more than one employee to take off the same day if it would hinder the companies production process.

Thank you

(Submitted on 2/14/17 by Joanne Templeman, Maris Farms) When Initiative 1433 was presented for voter approval, it stated that it applied to workers 18 and older. By this explicit inclusion of workers 18 and older (not 16 & older) and the goal to create a livable wage, it was implied that minors would not be included in the full increase of the minimum wage. The original initiative should have stated 16 & older if that was the intent. As stated by other respondents, minors are not allowed to perform the same tasks as those 18 or older. Nor are they likely to sustain a household. Therefore, it is unclear why minors are included in the fully increased minimum wage. Seasonal and entry level jobs like those we offer to more than fifty 16 & 17 year olds each year will now be geared towards adults who can be tasked with greater responsibilities to justify the higher pay level in these entry level positions. Our business would prefer to continue to provide teens with what is typically their first job. I recommend I-1433 be amended such that 16 & 17 year olds earn 90% of the new rate, while 14 & 15 year olds earn 85%. Most of our adult employees were already realizing $11 an hour or more through either their base wage or bonuses paid for their commensurate adult experience and responsibilities.

How will the new law effect current labor contracts, that have leave policies (nothing like the new law), in a union industrial setting?

Thank you