Washington state recently enacted several laws expanding protections for employees. Washington employers should be aware that these laws have significant implications in the workplace, including restrictions on employers’ ability to search their employees’ personal vehicles, new protections for warehouse employees, new sick leave payout rules for construction workers, requirements for hospital staffing plans, and anti-discrimination protections for cannabis users pre-hiring.

SEARCHES OF PERSONAL VEHICLES

Effective July 23, 2023, HB 1491 prohibits employers from searching an employee’s private vehicle located on the employer’s property and from retaliating against an employee for refusing to consent to such a search.  

Notably, the law contains several important exceptions, including searches

• ·of vehicles owned or leased by an employer;
• by law enforcement officers;
• reasonably necessary to prevent an immediate threat to human health, life, or safety;
• to ensure that the employee’s vehicle is suited for work-related activities;
• ·on state and federal military installations and facilities, state correctional institution premises, and other areas subject to searches under state or federal law; and
• with the employee’s consent based on probable cause that the employee unlawfully possesses either employer property or controlled substances in violation of both federal law and the employer’s written policy prohibiting drug use. The employee’s consent must be given immediately prior to the search, and the employer may not require that the employee waive consent as a condition of employment. Upon consent, the employee has the right to select a witness to be present for the search.

WAREHOUSE EMPLOYEE PROTECTIONS

Effective July 1, 2024, HB 1762 will significantly limit certain employers’ use of productivity quota systems for warehouse distribution center employees. This law applies to employers that employ or exercise control over (1) 100 or more employees in a single warehouse distribution center or (2) 1,000 or more employees in one or more warehouse distribution centers in Washington.

Disclosure Requirements

While employers may still use a quota system for productivity, the new law requires employers to disclose to warehouse workers (1) a written description of each quota, (2) any potential adverse action that could result from failure to meet the quota, and (3) any incentives or bonuses associated with meeting the quota. This disclosure must occur upon hire or within 30 days. Employers must also notify employees before any quota changes in the future.

Quota Definition

HB 1762 defines a “quota” as either (1) a work performance standard where an employee is assigned or required to perform a specified productivity speed, a quantified number of tasks, or a quantified amount of material, within a defined time period and under which the employee may suffer adverse employment action if the employee fails to complete the performance standard or (2) a “time on task” system in which an employer measures the employee’s time performing tasks, and the employee may suffer adverse employment action for failing to meet the standard.

Activities Counting Toward the Quota

The new law expands what employers must count as “productive time” or “time on task.” Specifically, the law requires that the following activities count toward the quota:

• Rest and bathroom breaks, plus travel time to and from facilities
• Reasonable travel time to on-site designated meal break locations
• Any activity required by the employer to do the work subject to the quota
• Actions necessary for a safe and healthful workplace under state law, including time to access tools or safety equipment.

Limitations on Adverse Action Based on Quota

An employer cannot take adverse action against an employee based on a non-compliant quota.

If the employer takes adverse action based on a compliant quota, they must provide the employee with the quota and the employee’s personal work speed data. “Employee work speed data” means information an employer collects, stores, analyzes, or interprets relating to an individual employee’s performance of a quota.

The law stipulates that there is a rebuttable presumption that an adverse action is retaliatory if the adverse action occurs within 90 days of a current or former employee engaging in protected activity under this law. The employer can rebut the presumption by a preponderance of the evidence that the employer undertook the adverse action for permissible reasons and that the protected activity did not motivate the adverse action.

Recordkeeping and Employees’ Right to Request Quota Records

Employers must keep records of:

• written descriptions of quotas,
• each employee’s personal work speed data, and
• aggregated work speed data for similar employees at the same warehouse.

An employer must retain these records for at least three years from the date an employee separates from employment or from the date of any adverse action taken against an employee.

At any time, an employee may request a written description of each quota to which the employee was subject, the employee’s own personal work speed data for the prior six months, and aggregated work speed data for the prior six months.

Enforcement

Notably, the law does not establish a private right of action. The Washington Department of Labor and Industries can initiate an investigation with or without a complaint from an employee. The penalty is $1,000 for the first violation, and the department must create a schedule of enhanced penalties for subsequent violations. Employers violating the law in a manner that results in a meal or rest break violation must pay the employee an additional hour of pay at the regular rate of pay for each day there is a violation.

SICK LEAVE PAYOUT FOR SHORT-TERM CONSTRUCTION WORKERS

Effective January 1, 2024, employers must pay out accrued and unused sick leave to construction workers when they are separated from employment after less than 90 days.

SB 5111 includes workers covered under the North American Industry Classification System industry code 23, a proxy for construction workers. However, the bill excludes workers covered under industry classification system code 236100, a proxy for residential construction workers.

HOSPITAL STAFFING PLANS, STAFF BREAKS, AND ON CALL/OVERTIME

SB 5236 changes hospital staffing committee requirements and rules regarding meal and rest breaks and overtime for hospital staff. This law applies to covered hospitals, which includes any institution providing 24-hour patient care and accommodation.  

Staffing Committee Composition and Structure

By January 1, 2024, hospitals must establish staffing committees composed of 50%  nursing staff and 50% members determined by the hospital administration.

By July 1, 2024, the committee must also file with the Department of Health a charter that includes an overview of the committee’s functions, election processes, meeting schedules, complaint processes, turnover and workforce development plans, and compliance plans.

Adoption of a Revised Staffing Plan

By July 1, 2024, and annually thereafter, the hospital staffing committee must, by majority vote, propose an annual staffing plan to the hospital’s chief executive officer (CEO). The CEO must provide written feedback, and the staffing committee must consider the feedback before adopting a revised staffing plan.

If this revised proposed staffing plan is not adopted by the hospital, the more recent of either the staffing plan in effect on January 1, 2023 or the last staffing plan approved by a 50%-plus-one vote by the staffing committee will remain in effect.

Final Staffing Plan Submission to the Department of Health

Each hospital must submit its final staffing plan to the Department of Health by January 1, 2025 and must implement it by no later than July 1, 2025, except in the event of unforeseeable emergent circumstances. The law provides direction on developing a contingency plan in the event that emergent circumstances last longer than expected.

Required Documentation

Each hospital must document when a patient care unit nursing staff assignment is out of compliance with its adopted staffing plan. “Out of compliance” means the number of patients assigned to the nursing staff exceeds the patient care unit assignment as directed by the nurse staffing plan.

Reporting Requirement

Each hospital must report to the Department of Health on a semiannual basis the percentage of nurse staffing assignments where the assignment in a patient care unit is out of compliance with the adopted staffing plan. The first report is due on July 31, 2026, which will cover the last six months of 2025. These semiannual reports must also be posted to the hospital’s website.

Beginning July 1, 2025, if a hospital is in compliance for less than 80% of the nurse staffing assignments in a month, the hospital must report the noncompliance to the Department of Health.

Beginning January 1, 2027, the Department of Health must review all non-compliance reports and, in consultation with the Department of Labor and Industries, require corrective plans of action.

The reporting requirements do not apply to critical access hospitals, certain sole community hospitals, hospitals with fewer than 25 acute care licensed beds, and hospitals located on an island operating within a public hospital district in Skagit County.

Nursing Staff Complaints

Nursing staff may complain to the staffing committee when a nursing staff assignment does not comply with the adopted staffing plan. All written complaints submitted to the staffing committee must be reviewed.

Staff Training

A direct care registered nurse or nursing assistant may not be assigned to a nursing unit or clinical area unless that nurse has received an orientation in that clinical area sufficient to provide competent care and has demonstrated current competence.

Meal and Rest Breaks

All hourly staff directly involved in patient care are entitled to scheduled, uninterrupted meal and rest breaks. Employees and employers may agree that a meal period may be combined with a rest period. This agreement may be revoked at any time by the employee.

Employers must provide a quarterly report to the Department of Labor and Industries of the total meal and rest periods missed and the total meal and rest periods required during the quarter. This reporting requirement does not go into effect for certain small or critical hospitals until July 1, 2026.

After July 1, 2026, if the Department of Labor and Industries determines that an employer has exceeded the quarterly threshold for missed meal and rest breaks, then it must assess penalties of $5,000 for critical access hospitals and hospitals with fewer than 25 licensed beds; $10,000 for hospitals with 26 to 99 licensed beds; $15,000 for hospitals with 100 to 299 beds; and $20,000 for hospitals with 300 or more beds. These penalties do not go into effect for certain small or critical hospitals until July 1, 2028.

On-Call Overtime

The law also alters Washington’s ban on mandatory overtime at healthcare facilities. The law provides that mandatory, prescheduled on-call time may not be used for an employee to begin at a time when the duration of the procedure is expected to exceed the employee’s regular scheduled hours of work, except for the case of a nonemergent patient procedure for which, in the judgment of the provider responsible for the procedure, a delay would cause a worse clinical outcome.

PROHIBITING DISCRIMINATION BASED ON CANNABIS USE

Effective January 1, 2024, SB 5123 prohibits employers from discriminating against job applicants due to off-duty cannabis use, with limited exceptions. Specifically, an employer may not discriminate based an employer-required drug screening test that identifies non-psychoactive cannabis metabolites in the person’s hair, blood, urine, or other bodily fluids. Non-psychoactive cannabis metabolites can remain in a person’s body for days or weeks after an individual ingests marijuana and do not necessarily indicate that the person is currently intoxicated.  

However, the law does not

• prohibit an employer from basing initial hiring decisions on scientifically valid drug screening conducted through methods that do not screen for non-psychoactive cannabis metabolites. It should be noted that presently there are no drug tests that can distinguish between psychoactive metabolites (those that indicate intoxication) and non-psychoactive metabolites.
• apply to testing for controlled substances outside of the preemployment context. For example, it permits post-accident testing or testing because of suspicion of impairment or being under the influence of alcohol, controlled substances, medications, or other substances.
• affect the rights or obligations of an employer to maintain a drug- and alcohol-free workplace, or any other right or obligation of an employer required under federal law or regulation.
• apply to a position requiring a federal government background investigation or security clearance, law enforcement officers, fire departments, first responders, corrections officers, safety sensitive positions for which impairment while working presents a substantial risk of death, or a position in the airline or aerospace industries.
• prevent an employer from requiring an applicant to be tested for a spectrum of controlled substances, including cannabis, as long as the cannabis test results are not provided to the employer.

ANALYSIS

These new laws continue the trend of expanding employee protections in Washington state. Employers should take the following steps to meet their current obligations and prepare for the laws that will soon go into effect:

• Reviewing and updating as necessary employee handbooks and policies to ensure compliance with the new laws.
• Updating recordkeeping systems regarding quotas, work speed data, missed meal and rest breaks, and sick leave data.
• Structuring hospital staffing committees and preparing to comply with reporting requirements.
• Training supervisors, managers, compliance personnel, human resources, and legal professionals on the implications of the new laws, including as to appropriate communications with applicants and employees asking for information on these topics.

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