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Recent Amendments to Seattle’s Paid Sick and Safe Time Ordinance Will Take Effect on January 1, 2018

With Washington State’s paid sick leave law taking effect on January 1, 2018, Washington employers should be prepared to implement statewide policies in addition to policies covering employees in SeaTac, Seattle, Spokane, and Tacoma. However, employers should not overlook changes to the Seattle Paid Sick and Safe Time (PSST) Ordinance that were adopted on December 15, 2017. The City of Seattle adopted Council Bill 119145 that amended Sections 14.16.010, 14.16.015, 14.16.020, 14.16.025, 14.16.030, 14.16.040, 14.16.045, 14.16.050, 14.16.055, 14.16.120, 14.22.010, and 14.22.020 of the Seattle Municipal Code (SMC).

The PSST amendments incorporate at the local level the more employee-friendly provisions of Washington Initiative 1433, which established statewide paid sick leave. Further, although Initiative 1433 applies to hourly employees working in Seattle and throughout Washington State, overtime-exempt employees are not eligible. But the PSST amendments would apply Initiative 1433’s provisions equally to hourly and overtime-exempt employees working in Seattle (with limited exceptions).

A summary of amendments to the PSST follows.

PSST Issue Prior Ordinance As Amended
Definitions—Work-Study Provided exemption for employees working under a work-study agreement. There is no exemption for employees working under a work-study agreement.
Definitions—Family Member “Family member” includes a child (minor or dependent), spouse, registered domestic partner, parent, parent-in-law, or grandparent. Adds child (of any age), sibling, andgrandchild.
Definitions—Tier 1 Employers Tier 1 employers have more than four full-time equivalents (FTEs) and fewer than 50 FTEs. Tier 1 employers have at least one employee and fewer than 50 FTEs.
Employment in Seattle—Occasional Basis Employees PSST covers employees who are typically based outside of Seattle and who work in Seattle on an occasional basis after the employee works more than 240 hours in Seattle in a year. The occasional basis threshold of 240 hours in a year was removed and will be defined subsequently in rules to be issued by the Office of Labor Standards Director.
Use—Caps on Use Permits caps on use of PSST. Caps on use are not permitted. Mirrors state law provision that permits caps only on carryover, not use.
Use—Shift Swapping Allowed certain eating and drinking establishments where food and/or beverages are prepared and sold at retail for on- or off-premise consumption to offer employees substitute hours or shifts, subject to PSST pay for any differential. Eating and drinking establishment exception removed. Further, language was added prohibiting asking or requiring employees, as a condition of receiving PSST, to find a replacement during PSST.
Reasons for Use—Business Closure Allows use when the employee's place of business has been closed by order of a public official to limit exposure to an infectious agent, biological toxin, or hazardous material. Adds language allowing use when the employee's place of business has been closed by order of a public official for any health-related reason.
Reasons for Use—School or Childcare Closure Allow use when the employee's child’s school or place of care has been closed by order of a public official to limit exposure to an infectious agent, biological toxin, or hazardous material. Adds language allowing use when the employee's child’s school or place of care has been closed by order of a public official for any health-related reason.
Waiting Period Waiting period is 180 calendar days from start of employment. Waiting period is 90 calendar days from start of employment.
Breaks in Service PSST must be reinstated after a 7-month break in service for same employer. PSST must be reinstated after a 12-month break in service for same employer.
Increments of Use for Nonexempt Employees Allows PSST use in hourly increments or, if feasible, by the employer's payroll system, increments rounding to the nearest 15 minutes. Allows PSST use in hourly increments or the smallest increment in which compensation is tracked.
Documentation of Absence Employers may require paid sick time use to be verified by reasonable documentation signed by a health care provider for PSST use for more than three consecutive days. Allows employers to require written verification within a reasonable period of time and as long as doing so does not result in unreasonable burden or expense on the employee or exceed privacy requirements.
Documentation of Absence Employers may require paid safe time (for domestic violence, sexual assault, or stalking) use to be verified by reasonable documentation such as a police report, court order, or other evidence from a court or the prosecuting attorney, after more than three days of consecutive use of PSST. Allows employers to require written verification within a reasonable period of time as long as doing so does not result in an unreasonable burden or expense on the employee or exceed privacy requirements,including from an advocate for victims of domestic violence, sexual assault, or stalking, a member of the clergy, a medical or other professional, or an employee's own written statement.
Rate of Pay Employers must pay the same hourly rate when an employee uses PSST. There is no right to lost tips or commissions. Employers must pay an employee’s “normal hourly compensation.” There is no language excluding tips or commissions.
Notifications Each time wages are paid, the employer must provide notification of PSST available for use. Notification also must include (1) PSST accrued and (2) PSST reduced (e.g., used or donated).
New Employer Exemption There is a two-year exemption from PSST requirements for new Tier 1 and Tier 2 employers. There is a two-year exemption for new Tier 1 and Tier 2 employers only from PSST requirements that are more generous than statewide paid sick leave (e.g., carryover for Tier 2 employers).
Employer Recordkeeping Employers must retain records for three years of (1) hours worked in Seattle and (2) PSST used. Employer records also must include (1) the date of commencement of employment; (2) hours worked including hours worked within the geographic boundaries of the city; (3) PSST accrued; (4) unused PSST available for use; (5) PSST reductions through a PSST donation to a coworker through a shared leave program or PSST not carried over to the following year; and (6) any others to be determined by the city.
Notice and Posting— Written Policy Employers must provide employees with a written PSST policy describing (1) the benefit year; (2) tier size; (3) accrual, use, and carryover information; (4) the manner for employees to determine available PSST when wages are paid; and (5) requirements for notice and requesting leave. The written PSST policy must also include (1) information on employees’ right to PSST; (2) non-retaliation language and, if applicable; (3) information on frontloading; (4) verification requirements for use of more than three consecutive days; (5) information on PSST sharing/donation; and (6) information on a universal paid time off (PTO) program that includes PSST provisions.
Collective Bargaining Waiver PSST provisions do not apply to employees covered by a collective bargaining agreement (CBA) with an express waiver in clear and unambiguous terms. Waiver is available only through December 31, 2018, or the expiration of a CBA in existence on December 31, 2018, for provisions of the PSST ordinance that are more generous than the state law, if contained in the CBA in clear and unambiguous terms. Beginning January 1, 2019, CBA waivers of PSST requirements are not permitted.

 

© 2020, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.National Law Review, Volume VII, Number 361

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About this Author

Matthew Johnson, Ogletree Deakins Law Firm, Labor and Employment Attorney
Shareholder

Matthew K. Johnson is a shareholder in the Greenville office and represents employers in all aspects of employment and labor law before state and federal agencies and in state and federal courts including, among others, matters under the Uniformed Services Employment and Reemployment Rights Act (USERRA), Title VII of the Civil Rights Act of 1964, Section 1981, the Age Discrimination in Employment Act of 1967 (ADEA), the Family and Medical Leave Act (FMLA), the Americans with Disabilities Act (ADA), the Fair Labor Standards Act (FLSA), and similar federal and state laws....

864-271-1300
Adam Pankratz, Ogletree Deakins Law Firm, Labor and Employment Litigation Attorney
Shareholder

Mr. Pankratz represents corporations and management in a myriad of employment-related and complex commercial matters, including litigation involving discrimination, retaliation, harassment, wage and hour, wrongful termination, ADA and FMLA leave issues, and other matters in state and federal courts and administrative agencies. Mr. Pankratz has experience successfully representing employers in executive termination, non-compete and unfair competition disputes.  Mr. Pankratz has extensive experience representing employers both locally and nationally on various employment and general commercial ligation matters.  Recent successes include obtaining summary judgment in various employment discrimination and retaliation lawsuits, and obtaining a positive decision on appeal before the Eighth Circuit Court of Appeals.

206-693-7053