August 9, 2012

Contractors sweat the details of Seattle's complex sick leave law

Pehl

The Seattle City Council recently passed an important new ordinance that goes into effect Sept. 1 for nearly all private-sector Seattle employers and their employees, including those in construction.

Beginning on that date, nearly all employers must provide to their employees who work in the city of Seattle specified amounts of accrued, job-protected paid time off for personal illness, family care and other purposes.

The ordinance is almost 50 pages in length and is complex. Employers with employees who work in Seattle should begin their compliance planning now. To aid in that process, this article provides a summary of the law and key planning points for you and your business.

Do I fall under the ordinance?

According to the ordinance, every private-sector company that has more than four employees, with at least one of whom performs work in Seattle, is covered by the law. Further, all employees who perform work in Seattle are covered, regardless of whether they are part-time, casual or temporary employees.

How much paid time is required?

The amount of paid time an employer must provide depends on the size of the business and the amount of hours the employee works. The ordinance divides businesses into three tiers of coverage: Tier 1 is employers with five to 49 employees; Tier 2 is 50 to 249; and Tier 3 is 250 or more.

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

Employees of a Tier 1 or 2 employer accrue one hour of paid time for every 40 hours worked. Employees of a Tier 3 employer accrue one hour of paid time for every 30 hours worked.

Although the ordinance allows an employee in these categories to accrue these specified amounts of paid time off, the ordinance sets some limits on the use of the accrued time.

For example, an employee of a Tier 1 employer can only use up to 40 hours of accrued time in one calendar year. Similarly, a Tier 2 employee can only use up to 56 hours in a calendar year, and a Tier 3 employee can only use up to 72 hours. Employers, however, must allow an employee to carry over accrued paid time from year to year, up to the maximums defined by ordinance.

For employers with more than 1,000 employees that use a “paid time off” plan, employees must accumulate leave equivalent to one hour per 15 hours worked and are entitled to at least 72 hours (nine days) per calendar year.

What is paid time used for?

Paid time must be made available for both “sick time” and “safe time.”

Sick time involves an employee's own illness or medical care, or time for the employee to care for a family member who is ill or requires medical care.

Safe time involves an employee's absence due to a business closure caused by a public hazard, a school closure caused by a public hazard that affects the employee's child, or domestic violence affecting either the employee, a member of the employee's family or household, or a person with whom the employee has a current or former dating relationship.

Examining your current plan

Although many employers already have paid leave programs, an employer who wishes to comply by using an existing program will be required to amend it, if necessary, to comply with the ordinance.

Some important things to think about in this process are:

1. Many existing paid leave programs include qualification periods, exclusions of part-time employees, and accrual caps or carry-over limits that are inconsistent with the ordinance. This needs to be considered in your analysis of whether your plan should be modified.

2. The ordinance does not allow an employer to require a doctor's note or other verification of need for an absence of less than three days. It also does not allow an employer to require that the first day (or days) of an absence be unpaid. If your current plan requires these prerequisites before allowing an employee to take time off, your plan is not consistent with the ordinance.

3. The Seattle ordinance allows an employer to forfeit an employee's accrued paid time at the end of each calendar year, to the extent the accrual exceeds the applicable Seattle carry-over cap. Doing this will have an effect similar to imposing an accrual cap equal to twice the permitted carry-over cap. But although similar in effect, a year-end forfeiture is administratively inconsistent with the accrual caps many employers currently use.

4. Paid time taken under the Seattle ordinance may not be counted as an absence when evaluating absenteeism, or under a no-fault absenteeism policy. If an existing paid leave program is used to comply with the Seattle ordinance, all leave used under the paid leave program will potentially become subject to this “ignore the absence” rule.

5. Employers that use an untracked vacation practice must consider whether that practice complies with the Seattle law, which contemplates that an accrued and tracked benefit will be provided. For example, employers must retain for two years records documenting hours worked and Seattle time taken. Employers must also retain 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.”

Allison Pehl joined Oles, Morrison, Rinker & Baker in 2010 after graduating cum laude from Seattle University School of Law. Pehl is a member of the firm's Construction and Government Contracts practice groups, assisting clients in a wide range of general construction and litigation-related matters, as well as public procurement and contract dispute resolution with the federal government.

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