The 17 th Annual Washington State Employment Law & HR Conference. How to Interpret Washington and Federal Leave Laws

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1 The 17 th Annual Washington State Employment Law & HR Conference How to Interpret Washington and Federal Leave Laws Presented by: K I M B E R L Y A. K A M E L W I L L I A M M. S Y M M E S W. R I V E R S I D E A V E N U E, S U I T E S P O K A N E, W A ( ) K A W I T H E R S P O O N K E L L E Y. C O M W M W I T H E R S P O O N K E L L E Y. C O M Meydenbauer Convention Center Friday, March 27, :45 a.m. - 11:45 a.m.

2 Family Medical Leave Act (FMLA) Whom Does the Act Cover Definition of Condition Applicable Law 50 employees in 75 miles; If employee worked 1,250 hours in previous 12 months For serious health condition of self, parent, spouse or child; care for newborn; placement of child for adoption/foster care; military order of spouse, parent or child to serve; or to care for a military member s parent who is incapable of self-care. Child, spouse (including legal same-sex marriages), parent, employee, military member (including veterans who are undergoing medical treatment, recuperation, or therapy for a serious injury or illness Care for a spouse, child, parent or next of kin with serious health condition; employee with serious health condition or care for service member Up to weeks weeks unpaid USDOL 29 C.F.R. 825 Same position or equivalent position

3 Washington Family Care Act Whom Does the Act Cover Definition of Condition No size requirement Sick family member Child, spouse, parent, parent-in-law, grandparent, registered domestic partner Child who has a "health condition that requires treatment or supervision" or spouse, parent, parent-in-law, grandparent with a serious or emergency health condition or child 18 or over with disabilities and incapable of self care Time accrued Applicable Law Paid Labor and Industries (L&I) RCW WAC Return to work

4 Sex Discrimination [Pregnancy Disability] Whom Does the Act Cover Same as WFLA 8 employees No minimum employment (religious and non-profit organizations not included) Allows period of disability due to pregnancy determined by healthcare provider Definition of Condition Applicable Law Pregnancy, the potential to become pregnant and pregnancy related conditions May include all time her healthcare provider determines she is unable to work For employers with 50 or more employees: may be more than 12 weeks Paid only if employer offers benefits to others on temporary disability/ Amount of time determined by healthcare provider based on individual's condition Human Rights Commission RCW WAC Same position or equivalent position

5 Family Leave Act Whom Does the Act Cover Definition of Condition 50 or more employees ( 8 for pregnancy) Same as FMLA Same as FMLA Same as FMLA It depends Applicable Law Unpaid (unless employer policy cover employee for paid leave), applies to additional leave for pregnant employees; other provisions identical to FMLA L&I RCW Same as FMLA

6 Leave for Spouses of Military Personnel Whom Does the Act Cover Definition of Condition All employers Employees that work 20 hours a week Allows for leave prior to deployment or when spouse or registered domestic partner is on leave from deployment Spouse or registered domestic partners of military personnel Same as FMLA, WFLA Allowed 15 days per deployment Applicable Law Unpaid, but employee may choose to substitute with accrued leave L&I RCW 49.77

7 Leave for Victims of Domestic Violence; or Family Member to Assist Whom Does the Act Cover Definition of Condition Applicable Law All employers and employees Leave for domestic violence, sexual assault or stalking for legal, or law enforcement assistance, medical treatment or counseling, work with a domestic violence shelter or rape crisis program, or for safety and relocation issues, or family member helping victim obtain treatment/services Child, spouse, parent, parent-in-law, grandparent or person the employee is dating Physical harm, bodily injury, fear of harm from a family member or person you have had a dating relationship with, sexual assault or stalking "Reasonable leave" Employee may choose L&I RCW Stop!!

8 Emergency Workers Whom Does the Act Cover Definition of Condition L&I says all employees Statute say 20 full time equivalent employees Leave taken related to responding to, working at, or returning from a fire alarm, emergency call, or emergency service operation Employees who are volunteer firefighters; reserve peace officers; and members of Civil Air Patrol n/a Applicable Law Undefined Paid or unpaid L&I RCW

9 Washington Disability Leave Whom Does the Act Cover Definition of Condition 8 employees No minimum employment Reasonable accommodation of disability as defined Employers, contractors, employees Any sensory, physical, or mental impairment that is diagnosable, of record, or which is perceived to exist Reasonable accommodations, which are not an undue hardship Reasonable accommodations, which are not an undue hardship Applicable Law RCW Must perform essential functions of current job or of a vacant job

10 Federal Americans with Disabilities Amendments Act (ADAAA) Whom Does the Act Cover 15 employees/ 20 weeks Reasonable accommodation of disability as defined, very individualized Employees Definition of Condition Any impairment that affects a major life activity Reasonable accommodations, which are not an undue hardship Reasonable accommodations, which are not an undue hardship Applicable Law 42 U.S.C Must perform essential functions of current job or of a vacant job

11 Seattle s Paid Sick Time and Paid Safe Time Employees in the City of Seattle accrue paid sick and paid safe time (PSST) for use when an employee or family member needs to take time off from work due to illness or a critical safety issue. The ordinance applies to all employers with more than four full-time equivalent employees. All employees are eligible for this time off, including full time, part time and temporary workers. Employees will be able to use their accrued PSST to take paid time off for: The employee s own illness, injury or health condition To take care of a family member (including domestic partners) with an illness, injury or medical appointment When the employer closes the business by order of a public official for health reasons For reasons related to domestic violence, sexual assault or stalking. Employees are covered if they: Perform full-time, part-time or temporary work within Seattle city limits. Employees who occasionally work in Seattle are covered if they perform more than 240 hours of work in Seattle within a calendar year. Example #1: Nicole works as a bartender for a restaurant in Seattle for 30 hours per week. Nicole is a covered employee because she performs part-time work in Seattle. Example #2: Sanford is a sales rep located in Spokane, WA. From time to time, his work takes him to Seattle for meetings and conferences on an ad hoc basis. Sanford is a covered occasional employee he must work 240 hours in Seattle within the calendar year to be eligible to begin accruing and using PSST.

12 Seattle s Paid Sick Time and Paid Safe Time (Cont d) Which employers are covered by the Ordinance? All employers with employees performing work in Seattle are covered by some aspects of the Ordinance (such as the anti-retaliation provision of the law). However, only employers with more than 4 full-time equivalent employees (FTEs), are required to provide PSST to their employees. An employer s specific obligations depend on the number of FTE employees: Tier One Employers with an average of more than 4 to 49 FTEs per calendar week during the previous calendar year. Tier Two Employers with an average of 50 to 249 FTEs per calendar week during the previous calendar year. Tier Three Employers with an average of 250 or more FTEs per calendar week during the previous calendar year. Note: Tier size is determined by the employer s number of FTEs, not the number of individual employees. What does the ordinance mean by full time equivalent (FTE)? Full time equivalent (FTE) refers to the number of hours worked for compensation that add up to one fulltime employee, based either on a 40-hour work week or on how an employer defines full-time in writing or practice.

13 Seattle s Paid Sick Time and Paid Safe Time (Cont d) How do I determine the number of FTEs in my company? To determine the number of FTEs, employers should count all compensated hours of all employees from the previous calendar year for any and all weeks during which at least one employee worked for compensation. Divide by the number of hours in a work-year, based on the employer s work-week. All employees are counted for FTE determination, including: Full-time employees. Part-time employees. Temporary employees. Employees who are made available by a temporary service, staffing agency or similar entity. Employees who work outside of Seattle. How much PSST do employees accrue? Employees accrue PSST based on their employer s tier size: Tier One and Two: Employees accrue at least one hour of PSST for every 40 hours worked. Tier Three: Employees accrue at least one hour of PSST for every 30 hours worked. Do employees accrue paid sick time and paid safe time separately, or is it one amount of time that employees can use either way? Employees accrue PSST in one amount and can use it for either sick or safe purposes.

14 Seattle s Paid Sick Time and Paid Safe Time (Cont d) When can employees start using PSST? In general, employees can use accrued PSST on the 180th calendar day after their date of hire. However, there is an exception for new Tier One and Tier Two employers. Under this exception, new employers are not covered by the Ordinance until 24 months after the hire date of the first employee. This means that new employers are not required to permit accrual or use of PSST until after 24 months of the hire date of the first employee. Example #1: Solomon started working for his employer in The employer hired its first employee in Solomon is eligible to use PSST immediately upon accrual. Example #2: Enrique started working for a new Tier One employer on February 18, The employer hired its first employee on January 10, Enrique will begin to accrue PSST on January 10, 2014 (24 months after the employer s hire date of its first employee) and can use it immediately.

15 Seattle s Paid Sick Time and Paid Safe Time (Cont d) How much PSST can an employee use in a calendar year? Use of PSST depends on the employer s tier size: Tier One Employees can use up to 40 hours of unused PSST hours per calendar year. Tier Two Employees can use up to 56 hours of unused PSST hours per calendar year. Tier Three Employees can use up to 72 hours of unused PSST hours per calendar year. (Note: employees of Tier 3 employers who offer a Paid Time Off (PTO) plan can use up to 108 hours of unused PSST hours per calendar year.) What happens to unused PSST at the end of the calendar year? Employers must permit employees to carry over unused PSST to the next calendar year. However, the number of hours depends on the employer s tier size: Tier One Employees can carry over up to 40 hours of unused PSST hours. Tier Two Employees can carry over up to 56 hours of unused PSST hours. Tier Three Employees can carry over up to 72 hours of unused PSST hours. (Note: employees of Tier Three employers who offer a Paid Time Off (PTO) plan can carry over up to 108 hours of unused PSST hours per calendar year.) Can I discontinue my employees PSST accrual once they reach the maximum amount they can use in a calendar year? Or do the hours keep accruing, even though the employees won t be able to use it? You must allow your employees to continue accruing PSST hours, even if the total is more than annual use requirements. If your employees have unused hours left over on December 31, they are allowed to carry them over into the following calendar year, up to the amount mandated by the employer s tier size. Cite: City of Seattle Paid Sick Time and Safe Time Ordinance (Seattle Works Well website)

16 Questions?

17 The 17 th Annual Washington State Employment Law & HR Conference How to Interpret Washington and Federal Leave Laws Presented by: K I M B E R L Y A. K A M E L W I L L I A M M. S Y M M E S W. R I V E R S I D E A V E N U E, S U I T E S P O K A N E, W A ( ) K A W I T H E R S P O O N K E L L E Y. C O M W M W I T H E R S P O O N K E L L E Y. C O M Meydenbauer Convention Center Friday, March 27, :45 a.m. - 11:45 a.m.

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