Seattle Paid Sick And Safe Leave Ordinance—Employers With Employees Working In Seattle, Are You Ready For The New Seattle Ordinance?

by Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
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Effective September 1, 2012, most private employers that have employees working within the city of Seattle, Washington will be required to provide such employees specific amounts of paid leave for use for personal illness, family care, absences related to closures due to public hazards, and absences relating to domestic violence, sexual assault, or stalking. San Francisco, Washington, D.C., and the state of Connecticut also have similar laws on the books.

Which Employers Are Covered?

Any private sector employer with more than four employees, with at least one employee working in Seattle, must comply with the city’s leave requirements. The ordinance applies to employers of any size in that it prohibits retaliation against an employee who mistakenly, but in good faith, alleges that an employer violated the ordinance.  

Which Employees Are Covered?

All employees who perform any work in Seattle are potentially covered, including part-time, casual, and temporary employees. An employee is covered by the ordinance if the employee performs more than 240 hours of work in Seattle in a calendar year. Work study students and independent contractors are not covered. An employee may use accrued leave after he or she has been employed for 180 calendar days.

How Much Paid Leave Must Be Provided?

The amount of paid leave an employer is required to provide depends upon the size of the employer. The size of the employer is determined by calculating the number of “full time equivalent” (FTE) employees, on average, per calendar week during the preceding calendar year for any and all weeks during which at least one employee was working. The number of FTEs includes all employees, regardless of physical location, including those who are part-time, full-time, introductory, or provided through a temporary staffing agency. An employer’s size places them in a “tier,” which governs the amount of leave an employee accrues, as well as usage and carry-over caps. For non-exempt employees, paid time accrues based on actual hours worked, including overtime. For employees exempt from overtime, paid time accrues based upon a 40-hour workweek, or, if an exempt employee’s normal workweek is less than 40 hours, it accrues based upon that normal workweek.
 

Tier Number of Employees
(Based Upon Average FTEs Per Calendar Week during Prior Calendar Year)(Regardless of Location)
Accrual Rate Annual Caps
(Usage and Carry Over)
Exempt 4 or fewer FTEs Exempt Exempt
Tier 1 More than 4 FTEs 1 hour per 40 hours of work (about 7 days per year for full time) 40 hours (5 days)
Tier 2 50 or more FTEs 1 hour per 40 hours of work (about 7 days per year for full time) 56 hours (7 days)
Tier 3 250 or more FTEs 1 hour per 30 hours of work (about 9 days per year for full time) 72 hours (9 days); 108 hours (13.5 days) for PTO programs that combine sick and other types of leave

The ordinance requires that employers provide a written statement of paid time available to each employee each time wages are paid. This information may be provided using any reasonable method, however, it is recommended to include the information on employee paystubs because it is the easiest and most obvious method for supplying the information.

What Types of Absences Are Covered by the Ordinance?

Covered employers must provide paid time off for both “sick” and “safe” time to be used for the following:
   
Sick Time:

  • An employee’s own illness or medical care, including an employee’s own mental or physical illness, injury, or health condition; for medical diagnosis, care, or treatment; or for preventative medical care. Absence is permitted for reasons more broad than the definition of “serious health condition” under the federal Family and Medical Leave Act (FMLA).
  • A family member’s illness or medical care, including a family member’s mental or physical illness, injury. or health condition; for medical diagnosis, care, or treatment; or for preventative medical care. (“Family members” include an employee’s child, stepchild, spouse, registered domestic partner, parent, parent-in-law, or grandparent.) Absence is permitted for reasons more broad than the definition of “serious health condition” under the FMLA. 

Safe Time:

  • The closure of employee’s place of business due to an order of a public official because of an infectious agent, biological toxin, or hazardous material.
  • The closure of a school or place of care of an employee’s child, stepchild, legal ward, or person to whom the employee stands in loco parentis.
  • For reasons relating to domestic violence, sexual assault, or stalking, including seeking or obtaining for a family or household member, legal or law enforcement assistance, treatment by a health care provider, social services, mental health counseling, safety planning, relocation, or other actions to increase safety.

“Family or household member” includes spouses, domestic partners, former spouses, former domestic partners, persons who have a child in common, adult persons related by blood or marriage, adult persons who are residing together or who have resided together in the past, persons 16 years of age and older who are presently residing together, or who have resided together in the past and have had a dating relationship, persons 16 years of age and older who have had a dating relationship, and persons who have a biological or legal parent-child relationship, including stepparents and stepchildren and grandparents and grandchildren. 

What Advance Notice May an Employer Require?

The ordinance states that sick and safe leave “shall be provided upon the request of an employee.” Employees may be required to comply with an employer’s customary notice and procedural requirements for absences and requesting leave, but such requirements must not conflict with the purposes for which the leave is needed.

What Documentation May an Employer Require?

Employers may only request documentation of the need for sick or safe leave after an employee has been absent for three consecutive days. For sick leave, an employer may require reasonable medical documentation, A health care provider’s note stating that sick time is necessary is sufficient, and the employer may not require an explanation of the nature of the illness. For use of more than three consecutive days of safe time, the employer may require verification of the closure order, or verification that the employee or family or household member is a victim of domestic violence, sexual assault, or stalking and that the leave is for a reason covered by the ordinance.

How Should an Employer Notify Employees?

Employers must give notice to employees of their rights under the new law, which may be through the employee handbook or other written or electronic means. In addition, employers must provide a written statement to employees of the amount of paid time available to them each time wages are paid. Administratively, the simplest way to accomplish this requirement is to include the leave on employee pay stubs. 

What Else Should an Employer Know?

The ordinance contains special provisions relating to employees of new businesses, and employees who separate and are re-hired within seven months. Individuals who bring a lawsuit under the ordinance may seek reinstatement, back pay, lost benefits, attorneys’ fees, and damages for humiliation and mental suffering not to exceed $10,000. The ordinance is enforced by the Seattle Office for Civil Rights. 

Additional Information

Should you have any questions about this new law or its impact on your workplace, contact the Ogletree Deakins attorney with whom you normally work or the Client Services Department at 866-287-2576 or clientservices@ogletreedeakins.com.

Note: This article was published in the August 29, 2012 issue of the Washington eAuthority.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Ogletree, Deakins, Nash, Smoak & Stewart, P.C. | Attorney Advertising

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