How to Avoid Some Common Compliance Mistakes
This article was originially published in the December 29, 2017 edition of the Vancouver Business Journal.
As we mentioned in November, as of January 2018, Washington law now mandates that sick leave benefits be provided to all non-exempt employees working in the state. Unlike similar versions in Oregon and other jurisdictions, this law did not tailor the coverage to employers of a certain size, so even a single employee within the state will trigger these protections.
The law expressly allows the sick leave benefit to be satisfied by an equivalent sick or PTO policy, so it may not require that you offer more paid benefits than you are already offering to your employees. However, a note of caution, to those of you who are assuming that your existing policy is probably fine as-is and it does not need updating: That is unlikely to be true. In fact, most of the pre-existing policies we are seeing actually have some gaps, contrary provisions, or other procedural requirements that conflict with the sick leave law and require updating for compliance.
Here are some of the common issues we see that may require updating your policy now:
- Accrual is impermissibly capped. Under the Washington law, unlike its Oregon counterpart (for those of you who may do business in both locations) or the local versions in some jurisdictions (i.e., Seattle, SeaTac, and Spokane), the accrual is a pure one hour for every 40 hours worked, and is not capped at any maximum amount. That will, of course, make it very difficult to “frontload” (i.e., credit a full annual amount at the beginning of the year or other defined period) unless you are certain that either; (a) you have provided at least as much leave as the employee would accrue in the same period, including potential overtime, or other adjustments, or (b) you have a mechanism that will allow you to ensure that if the frontloaded amount is not sufficient, the employee is credited with any additional sick leave earned, within the appropriate pay period in which it is earned.
- Eligibility is too narrow. Many pre-existing policies provide this leave only to regular or full-time employees, or those who have completed a certain amount of service to the company. The new law requires that this leave begins to accrue immediately upon hire and irrespective of whether the person is full or part time, or seasonal/temporary.
- Too much notice is required. The new law allows employers to require no more than 14 days’ notice of a need for such leave when it is foreseeable. Pre-existing policies (and other internal rules) that require 30 days’ notice of a need for leave, need to be updated accordingly.
- The policy includes an outdated list of permissible uses. What must be excused and not counted against an employee under the new sick leave law is defined more broadly than just an employee’s own personal illness or medical care. Be sure that if your policy lists reasons that will be excused, it is updated to include time off needed for family member health issues, absences protected by Washington’s Domestic Violence Leave laws, absences due to school closures resulting from a public health emergency or other related public health concerns, time needed for attending/making arrangements for funerals and related absences, and any other reasons required under the new law.
- Overreaching verification requirements. Medical or other documentation of the need for sick leave cannot be required unless the absence exceeds three (3) scheduled workdays. Moreover, the new rules forbid an employer from requiring that such verification/documentation disclose the specific medical condition. Employers would be wise to either use the sample verification policy and corresponding forms that are now online at the Department of Labor & Industries’ “Employer Resource Center for Paid Sick Leave” (available here: http://www.lni.wa.gov/WorkplaceRights/LeaveBenefits/VacaySick/EmployerInfo.asp, or carefully tailor their own with appropriate guidance.
- It does not include potential accommodation of verification requests. While the new law does not mandate that employers pay for the out-of-pocket costs of any required verification, it does require that employers consider alternatives if the employee believes that the requested verification poses an unreasonable burden or expense to them.
- Carry over is not clearly addressed. The Washington sick leave law does require that up to 40 hours of accrued sick leave must be permitted to carry over into the next year if the employee does not use it.
- Forfeiture is not addressed. We sometimes encounter a misnomer that accrued sick leave must be paid out at termination. That is not true under current Washington law, so we strongly recommend that if an employer does not plan to cash out the sick leave benefit at the end of employment, they clearly state that in their policy.
Also, be aware that the sick leave law requires that the full amount of previously accrued leave be credited back to an employee if they are rehired within 12 months. You do not necessarily need to include that in your policy, but you do need to be sure to comply if it applies.
Lastly, many employers mistakenly believe that the Washington version supersedes local sick and/or safe leave ordinances. It does not. That means, employers in Seattle, Tacoma, the City of SeaTac, and Spokane need to be sure their updated policies meet the minimum standards for both the local ordinance and the new statewide sick leave law.
We hope this discussion is helpful to you, but of course it is not intended to substitute for legal advice for any specific circumstances. If you have a specific question about any of the requirements included in this article or any individual compliance requirements applicable to your business, we would encourage you to consult your legal counsel or the attorneys at Jordan Ramis PC who would be happy to assist you.
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