Q&A Preparing for Washington State s Sick Leave & Paid Family & Medical Leave

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1 Q&A Preparing for Washington State s Sick Leave & Paid Family & Medical Leave The information provided in the webinar and these follow up questions is for informational purposes only and not for providing legal advice. Please contact an attorney to obtain a legal opinion on any of the topics we ve covered. Can we offer a PTO plan that provides both vacation and sick time? Yes, if it meets the requirements under the sick leave law If we provide PTO (sick and vacation combined) and an employee uses all their PTO for vacation, do we need to provide more time off? No Are temporary and seasonal employees required to receive sick time? Yes, all non-exempt employees are required to receive sick time. If the temporary employee is hired through a temp agency, the temp agency usually provides this benefit. Be sure to clarify this when using a temp agency. Do the sick leave law requirements cover employees under a collective bargaining agreement? Yes, sick leave benefits under a collective bargaining agreement (CBA) must meet sick leave law requirements. A CBA can be used to justify tracking use of sick leave in increments greater than the increments in which employers pay. Can we apply the accrual rate to scheduled/standard weekly hours rather than actual hours worked? For example, if a person is scheduled to work 35 hours per week, they would accrue based on 35 hours, even if they work more or less than that? You can set your accrual to be based on scheduled hours, but you must make sure that the time accrued meets or exceeds what is required based on actual time work. In other words, if a person works 45 hours, they must receive hours of sick time (0.025 x 45) even if they are only scheduled to work 35 hours. When setting accrual rates in this manner, we recommend testing it against the largest number of total hours any employee has ever worked in a week. Can we set a minimum use limit? In other words, can we require that an employee take at least 3 hours for each instance of sick leave?

2 No, you cannot. You must allow employees to take sick leave in increments consistent with the increments in which you pay. To clarify, if there is no accrual cap, an employee can accrue and use hundreds of hours during the year, but only be allowed to carry over 40 from one year to the next? That is correct. What if you frontload, and then owe more hours after the end of the year, but the additional hours cause the employee to have more than 40 hours to carry over into the next year. Can you still apply the 40-hour cap? The regulations appear to be silent on this issue. We will have to wait for clarification on this. Can we allow employees to use time for reasons other than what is required? Yes, you can allow employees to use time for other reasons. For example, inclement weather or jury duty. If you require a doctor s note, do you have to pay/reimburse the employee for any costs? There is no law or regulation we are aware of that specifically requires this. However, the unforeseeable burden or expense limitation to requesting a verification suggests that if a cost for getting the verification is unforeseeable, you will either need to pay the cost or allow the employee to certify in writing they used the time for allowable reasons. Can you have a point-based absenteeism policy where employees are allowed a limited number of unplanned time off or tardiness before being disciplined? Employers may not count absences that are covered by the sick leave law when determining if an employee had enough attendance violations to warrant disciplinary action. We already have a requirement that employees notify us at least 2 hours before their shift if they are going to be out or late so we have time to find a replacement. Can we hold the employee to that timeline? No. You can ask for it, but you must be clear that employees will not be disciplined unless they do not notify you by the start of their shift. If an employee earns both an hourly wage and commission, how is the rate of pay for sick time computed? Employers must use a reasonable calculation for determining what the employee s hourly rate would have been for the time they took as sick leave. In the case of an employee earning a

3 commission, the regulations suggest calculating the average hourly rate in all pay periods in the 90 days prior to the paycheck being generated. Can you pay out sick time at the end of each year? The strict reading of the law and regulations suggests you must allow at least 40 hours to carry over into the following year. There is no provision for paying out these hours. You can pay out hours upon separation, which will waive the reinstatement requirement upon rehire. The law and regulations are silent as to paying out time over 40 hours at the end of each year. Doing so does not seem contradictory to these other requirements. Can the monthly notification requirement be satisfied by employees being able to log on and see that information at any time? Yes, electronic notification is acceptable. Donation of sick time: can an employee who works in WA donate their time to another non-wa employee? For example, we have OR and WA employees. It appears so, based on our reading of the regulations. If using a PTO policy, is the employer still required to track use of sick time? Employers should ask employees to classify the reason for the time off, as a best practice. Where and when will the sample policies be available? The state has an obligation to provide them. They likely will be posting them on their website. Are these sick hours on top of what employees currently receive through policy or bargaining? No, an existing policy that meets the sick leave requirements is acceptable. Is there any consideration for direct patient care positions? No, there are no industry or occupation-based exceptions. Do you have to reinstate hours upon rehire if you paid them out upon separation? No, as long as you have an agreement in writing that states you paid the hours out and that they will not be reinstated.

4 Washington Paid Family and Medical Leave Note: The details for this benefit are is still being worked out by the state of Washington. The answers below may change based on further clarification by the state. If an employer has their plan evaluated and it's approved, do the employee and the employer still have to make premium payments? It does not appear so. If an employer has less than 50 employees in WA, (but more than 50 across all states, are they required to participate. Yes, they are required to participate for the employees that are working in Washington. Employees working outside of Washington do not (and probably cannot) be covered under the benefit. Would a person on a qualified FMLA leave be eligible for another possible 18 weeks on top of the qualified FMLA? No, it appears this paid leave can run concurrent with FMLA and WFLA. Who administers this benefit? The state likely will have the responsibility of evaluating and approving or denying this benefit. They will also be the entity making payments to the employee. If you are a small company and you opt out, do you still have to deduct the employee portion of the premium? Yes. Is the opt out for employers with less than 50 employees based on the per location headcount or total headcount? For purposes of the opt-out, it appears to be 50 employees in Washington. If employees are paying into this benefit (through payroll deductions) but they never use the benefit, is that money lost or does this get paid out at separation? It appears that money is not refunded.

5 Washington Pregnancy Accommodation Law If our company has 50 employees but less than 15 of them work in Washington, does the pregnancy accommodation law apply to me? It appears it does. The law says employers with 15 or more employees. It does not state that the 15 employees must be in Washington.