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Seattle City Council Passes Paid Sick/Safe Leave Ordinance

Update
09.20.2011

On September 12, 2011, the Seattle City Council passed an ordinance (Council Bill No. 117216) requiring employers to provide paid “sick and safe” time off to employees who work in Seattle. Mayor Mike McGinn has indicated that he supports the ordinance. Assuming it is not vetoed, amended or voided through legal action, the ordinance will go into effect next year on September 1, 2012.

This update summarizes the key provisions of the ordinance and highlights some of the features that may require policy changes for employees who work in Seattle. However, the ordinance is long and detailed. Legal advice is advisable to determine its impact on any given employer.

As used below, “Seattle time” refers to both sick and safe leave. Where it makes a difference, sick leave and safe leave are separately identified.

Which employees are covered?

Employees are covered if they “perform their work in Seattle.” Employees who occasionally work in Seattle must work more than 240 hours in Seattle within a calendar year to be covered. Covered employees include “traditional employees, temporary workers, and part-time employees,” but not participants in a work-study program. There are special rules for employees transferred out of Seattle and then back into Seattle and for employees who are rehired within seven months after separating from employment.

Which employers are covered?

All employers of covered employees are covered by some aspects of the ordinance (for example, the anti-retaliation provision), but employers of more than four full-time equivalent employees need not provide Seattle time to their employees. For larger employers, some obligations will depend on where the employer fits in one of the following three “tiers”:
    • Tier One employer: between five and 49 full-time equivalent employees (“FTEs”) on average per calendar week during the preceding calendar year.

    • Tier Two employer: between 50 and 249 FTEs on average per calendar week during the preceding calendar year.

    • Tier Three employer: 250 or more FTEs on average per calendar week during the preceding calendar year.

Note: Tier placement is based on full-time equivalents, not the number of individual employees. “Full-time equivalent” refers to the number of hours worked for compensation that add up to one full-time employee. Full-time employee means either 40 hours a week (“an 8-hour day and a 5-day week”) or “as full time is defined, in writing or in practice, by the employer.” Thus, an employer who defines “full-time” as employees who work, say, at least 35 hours a week, may find itself in a different tier than a similar-sized employer who defines “full-time employees” as employees who work at least 40 hours per week.

All employees count when determining tier placement, including part-time employees, temporary or leased employees and employees who work outside of the city of Seattle.

Seasonal employers should note that the average headcount “during the preceding calendar year” is the average for weeks in which at least one employee worked for compensation. Weeks in which no employee worked do not reduce the average.

New employers in Tiers One and Two are not covered until 24 months after the hire date of their first employee (determined based on the average number of FTEs employed per calendar week during the first 90 calendar days following the hire date of the first employee).

What about temporary employees?

Temporary employees are covered by the ordinance and count toward the determination of FTEs employed. However, except for determining tier size, temporary employees supplied by “staffing agencies or similar entities” are considered employees of the agency, not the service recipient, unless a contractual agreement states otherwise.

When does an employee begin to accrue Seattle time?

Accrual of Seattle time begins at the commencement of employment. Current employees will begin accruing Seattle time as of the effective date of the ordinance (September 1, 2012). 

How much Seattle time do employees accrue?

    • Tier One or Tier Two employers: Employees accrue at least one hour of Seattle time for every 40 hours worked.

    • Tier Three employers: Employees accrue at least one hour of Seattle time for every 30 hours worked.

Note: Many employers determine sick leave accrual rates based on an employee’s anticipated hours or “percent of FTE.” For example, under an employer’s policy, a “full-time” employee might accrue one hour of paid time off per week. Seattle time, however, accrues based on hours “worked,” not based on classifications or percent of FTE.

When can an employee begin to use accrued Seattle time?

Employees can use accrued Seattle time beginning on the 180th calendar day after the commencement of their employment.

How much Seattle time can employees use?

    • Tier One employers can limit employees to using 40 hours in a calendar year.

    • Tier Two employers can limit employees to using 56 hours in a calendar year.

    • Tier Three employers can limit employees to using 72 hours in a calendar year.

Note: This is a calendar-year system. If an employer uses a rolling 12-month calendar for Family and Medical Leave Act (“FMLA”) leave, Seattle time might sometimes be available to an employee who has no available FMLA leave.

Note: Employees who are exempt from overtime under the executive, administrative, professional and outside sales exemptions from the federal Fair Labor Standards Act are not entitled to accrue Seattle time for hours worked beyond a 40-hour workweek. Additionally, if the employee’s “normal work in a workweek” is less than 40 hours, Seattle time accrues based on the normal workweek. “Normal work in a workweek” is often not tracked for exempt employees, and may well be different than “normally scheduled” hours or “percent of FTE.”

How much Seattle time can an employee carry over into the next calendar year?

Employees must be allowed to carry over at least some of their accrued unused Seattle time from one calendar year to the next:

    • 40 hours in Tier One

    • 56 hours in Tier Two

    • 72 hours in Tier Three

What if an employer already has a paid leave policy?

Paid leave policies must provide at least as much leave as the Seattle ordinance requires. The leave must be available for all of the purposes for which Seattle time is available. If an employer has a “PTO” policy that combines sick and vacation time, the employer need not provide additional Seattle time if PTO can be used for the same purposes as Seattle time, accrues at the rates provided in the ordinance, and (1) for Tier One and Tier Two employers, can be used or carried over in the amounts specified in the ordinance, and (2) for Tier Three employers, at least 108 hours can be used within any calendar year and/or carried over into the next calendar year.

What circumstances entitle an employee to use Seattle sick time?

Employees can use sick time:

    • For “an absence resulting from an employee’s mental or physical illness, injury or health condition; to accommodate the employee’s need for medical diagnosis care, aftercare or treatment of a mental or physical illness, injury or health condition; or an employee’s need for preventive medical care;” [or]

    • “To allow the employee to provide care of a family member” with an illness, injury, need for medical treatment, etc. 

    • For sick time, “family member” is defined as in the Washington Family Care Act, RCW 49.12.265 and .903 (child, grandparent, parent, parent-in-law, spouse, registered domestic partner).

What circumstances entitle an employee to use Seattle safe time?

Employees can use safe time:

    • “When the employee’s place of business has been closed by order of a public official to limit exposure to an infectious agent, biological toxin or hazardous material;”

    • “To accommodate the employee’s need to care for a child whose school or place of care has been closed by order of a public official for such a reason;” or

    • For domestic violence, sexual assault or stalking affecting the employee or the employee’s “family member,” as provided in Chapter 49.76 RCW.

Note: The ordinance does not define “family member” for purposes of using safe leave. Probably, the intent was to define “family member” for purposes of Seattle safe leave as the term is defined in RCW 49.76.020(5) (“any individual whose relationship to the employee can be classified as a child, spouse, parent, parent-in-law, grandparent, or person with whom the employee has a dating relationship”).

What must the employee do to request Seattle time?

When possible, the request must include the expected duration of the absence. The employer may require the employee to comply with the employer’s usual and customary notice and procedural requirements for requesting leave, “provided that such requirements do not interfere with the purposes for which the leave is needed.”

    • For foreseeable Seattle time, the request must be made at least 10 days in advance or as early as possible, unless the employer’s normal notice policy requires less notice. The employee has to make a reasonable effort to schedule the time off in a manner that does not unduly disrupt the employer’s operations. (This is an FMLA concept.)

    • For unforeseeable Seattle time: “The employee must provide notice as soon as is practicable and must generally comply with an employer’s reasonable normal notification policies and/or call-in procedures, provided that such requirements do not interfere with the purposes for which the leave is needed.” Presumably this last phrase equates to the FMLA’s “absent unusual circumstances,” but possibly it does not.

Note: One section of the ordinance says that an employer may require compliance with its usual and customary notice and procedural requirements. Another section says that employees must “generally” comply with the employer’s “reasonable normal notification policies and/or call-in procedures,” rather than “usual and customary notice and procedural requirements for absences and/or requesting leave.” The implications of this discrepancy are unclear.

What documentation can an employer require from an employee who uses Seattle time?

Employers can require documentation of the need to use Seattle time only if the employee is absent for more than three consecutive days. For sick time, the employer cannot require that the documentation explain the nature of the illness.

Note: It is not clear whether this section attempts to prohibit employers from seeking the information that they are entitled to seek under the FMLA, Americans with Disabilities Act, Washington Law Against Discrimination or RCW Chapter 49.76.

Note: Unlike FMLA regulations, the Seattle ordinance makes no provision for seeking documentation supporting the need for Seattle time when there is a suspicious pattern of absences. For example, an absence every Friday all summer would not qualify as an absence of “more than three consecutive days.” The ordinance appears to prohibit employers from requiring documentation confirming the need for such absences.

Who pays the cost of obtaining medical documentation?

The ordinance states: “For any employee who is not offered health insurance by the employer, the employer and the employee shall each pay half the cost of any out-of-pocket expense incurred by the employee” to obtain documentation. The expenses are limited to the costs of obtaining the documentation, including testing and including transportation. “An employee who has declined to participate in the health insurance program . . . shall not be entitled to reimbursement for out-of-pocket expenses.”

Can employers require employees to make up lost time by working additional shifts?

No. The employer and employee may mutually agree to extra hours or shifts. Special rules apply to eating and/or drinking establishments.

What pay must be provided for Seattle time?

Employees must be compensated for Seattle time “at the same hourly rate and with the same benefits, including health care benefits, as the employee would have earned during the time the paid leave is taken.” However, compensation is not required for lost tips or commissions, and is only required “for hours that an employee is scheduled to have worked.”

Must the employer pay out accrued unused Seattle time upon termination?

No, unless an employment agreement, policy or longstanding practice provides for payout.

Does the ordinance require notice and posting?

Yes. Employers must inform employees of their rights under the ordinance. The ordinance specifies the information that must be provided. The Seattle Office for Civil Rights is directed to create and make available a poster and a model notice.

In addition, every time that an employer pays wages to an employee, the employer must state in writing the current amount of Seattle time that the employee has available.

Does the ordinance impose recordkeeping requirements?

Yes. Employers must retain for two years records documenting hours worked and Seattle time taken. Existing recordkeeping systems need not be modified, as long as records reasonably indicate hours that an employee worked in Seattle, the amount of accrued Seattle time and the amount of Seattle time taken.

Employers must maintain in confidence information that an employee or someone on behalf of an employee provides in support of the employee’s request for Seattle time, including “the fact . . . that the employee has requested or obtained leave under [the ordinance], and any written or oral statement, documentation, record or corroborating evidence provided by the employee.” The documentation must be maintained separate from ordinary personnel files. Disclosure is allowed only if requested or consented to by the employee, ordered by a court or administrative agency or otherwise required by law.

Can employers retaliate against employees for using Seattle time?

Of course not. The ordinance prohibits anyone from interfering with or restraining or denying “the exercise of, or the attempt to exercise, any right protected under” the ordinance, and prohibits retaliation for protected activity, including opposing perceived violations of the ordinance, participating in investigations of alleged violations and informing other employees of their potential rights regarding Seattle time.

Can Seattle time be counted as an absence for attendance purposes?

An absence control policy cannot count Seattle time as an absence that may lead to or result in discipline or any other adverse action against the employee.

Can employees waive the protections of the ordinance?

Only in a bona fide collective bargaining agreement. Individual waivers are prohibited.

© 2011 Perkins Coie LLP