In what appears to be a growing trend, Seattle joins San Francisco and Washington, D.C. on the list of cities requiring employers to provide paid sick leave. A new Seattle ordinance (the “Ordinance”) requires nearly all employers with workers in Seattle to provide paid leave for employees who are sick; who are seeking treatment or preventative care; who are caring for a family member with an illness, injury, or need for medical treatment; or who need leave related to domestic violence, sexual assault, or stalking affecting the employee or the employee’s family member. Before the law takes effect on September 1, 2012, the vast majority of employers with Seattle employees—even those employers that have already adopted generous paid sick leave or paid time off policies—will likely need to change their policies to comply with the Ordinance’s complex rules.
Nearly All Seattle Employers and Employees Are Covered by the Ordinance
Employers with four or fewer employees need not provide paid sick leave under the Seattle Ordinance. Also, new employers (unless they employ 250 or more employees) are not covered until 24 months after the hire date of their first employee. All other employers must provide paid sick leave to each of their full-time and part-time workers who “perform their work in Seattle,” provided the worker works at least 240 hours in Seattle per calendar year.
Temporary workers are covered by the Ordinance, unless they are supplied by a staffing agency or similar entity, in which case the staffing agency would be responsible for providing sick leave. New employees, including probationary employees, are also covered by the Ordinance. While such employees accrue paid sick leave at the same rate as their more senior coworkers, they cannot use that leave for the first 180 calendar days of their employment.
How Much Sick Leave Is Required?
Under the Ordinance, covered employees accrue paid sick leave incrementally, based on hours worked. The rate at which paid sick leave accrues varies by the employer’s number of employees—specifically, the number of full-time equivalent employees the company employed per average calendar week during the preceding calendar year. Employers employing between five and 49 such employees must allow covered employees to accrue one hour of paid sick leave for every 40 hours worked and must allow them to use up to 40 hours (five days) of their accrued leave per calendar year. Employers employing between 50 and 249 such employees must allow covered employees to accrue one hour of paid sick leave for every 40 hours worked and must allow them to use up to 56 hours (seven days) of their accrued leave per calendar year. Employers employing 250 or more such employees must allow covered employees to accrue one hour of paid sick leave for every 30 hours worked and must allow them to use up to 72 hours (nine days) of their accrued leave per calendar year.
Employees who are exempt from the overtime and minimum wage provisions of the Fair Labor Standards Act, like non-exempt employees, accrue paid sick leave based on hours worked. Unlike their non-exempt counterparts, however, exempt employees do not accrue sick leave for hours worked in excess of forty in a workweek or in excess of their scheduled hours.
Employers must allow their employees to carry over accrued but unused paid sick leave from one year to another. The maximum amount that an employee must be allowed to carry over is the same as the maximum yearly amount of paid sick leave employees are entitled to use—that is, 40 hours, 56 hours, or 72 hours, depending on the employer’s size. Leave required under the Seattle Ordinance can be combined into a general paid sick leave or paid time off policy, so long as the leave can be used for all of the purposes covered by the Ordinance.
Procedures for Requesting, Documenting, and Recording Sick Leave
When the need for sick leave is foreseeable, an employee must notify the employer at least ten days in advance, or as early as possible, unless company policy requires less notice. For such foreseeable leave, the employee also has a duty to schedule the time off in a manner that does not unduly disrupt the employer’s operations. When the need for leave is unforeseeable, the employee must provide notice as soon as is practicable and comply with the employer’s notification procedures.
Employers may require documentation supporting the need for sick leave only when employees are absent for four or more consecutive days. In the event the employee is not offered health insurance by the employer, the Ordinance requires the employer to pay half the employee’s out-of-pocket expenses, including transportation expenses, incurred in complying with the employer’s request for documentation. Employers may not, however, require documentation to explain the nature of the employee’s illness.
Employers must keep records of employees’ hours worked as well as the paid sick leave used under this Ordinance and retain those records for two years. Supporting documentation and even records of “the fact that the employee has requested or obtained leave under the [Ordinance]” must be treated as confidential and cannot be stored in ordinary personnel files.
Employers must notify employees of their rights under the Ordinance. To assist employers in doing so, the Seattle Office for Civil Rights will make available a poster and model notice. Additionally, each time that an employer pays wages to an employee, the employee must be informed in writing of the current unused amount of paid sick leave the employee has accrued under the Ordinance. Employers may satisfy this requirement by making such information available to each employee online.
The Ordinance prohibits employers from retaliating against employees for exercising, or attempting to exercise, their rights under the Ordinance and for opposing perceived violations of the Ordinance. The Ordinance does not, however, appear to confer a basis to sue employers in civil court. Rather, the Seattle Office for Civil Rights will enforce the Ordinance and has the authority to assess fines or issue a broad range of other remedies, including those that “could be ordered by a court.” The Ordinance caps compensation for humiliation and pain and suffering at $10,000.
The new Seattle Ordinance will require most employers with employees in Seattle to make some changes to their existing paid leave policies and procedures. Even employers with generous paid sick leave policies will face an administrative nuisance in complying with the Ordinance’s web of requirements. For example, employers with existing paid sick leave or paid time off policies will likely need to modify those policies to ensure that paid leave is available for all of the purposes specified by the Ordinance, that employees are not required to provide documentation for absences unless they exceed three calendar days, that unused sick time or paid time off can appropriately be carried over from one year to the next, etc. Additionally, although employers do not typically keep records of the hours worked by employees who are exempt from the overtime and minimum wage requirements of the Fair Labor Standards Act, the Ordinance’s recordkeeping requirement does not include an exception for exempt employees. Thus, employers will need to begin tracking hours worked by exempt employees in Seattle.