09.04.12

Newsletters,

Summer May Be Ending Soon, But Seattle Sick/Safe Leave Has Arrived

PRACTICE GROUPS

Seattle employers (and employers who have employees who do business in the City of Seattle) should consider the impact of the new Paid Sick and Safe Time (“PSST”) Ordinance, which took effect September 1, 2012. Please consult with counsel for legal advice regarding your situation, but we thought you would find the following frequently asked questions useful. Read on for a fictional conversation between a business owner and her counsel.

Should I care about PSST? If your business employs 4 employees or fewer, if you are a federal, state or county government, or if your employees perform no work in Seattle, then the answer is no. If you are a new small business, you may be entitled to a slight delay in compliance, but we’d need to talk further about the details. Otherwise, yes, you should care.

Which employers does the ordinance cover? Any employer with 5 or more “full time equivalent employees” must provide PSST. How much PSST depends on the employer’s size. The Ordinance divides employers into Tiers:

Tier I = employers with 5 to 49 full time equivalent employees

Tier II = employers with 50 to 249 full time equivalent employees

Tier III = employers with 250 or more full time equivalent employees

For purposes of Tier placement an employer must count all employees, whether located in Seattle or elsewhere.

Who is entitled to PSST? Pretty much everyone. Any full-time, part-time and temporary employee who performs work in Seattle in a calendar year is covered. Any employee who occasionally works in Seattle is covered for a calendar year (and the following calendar year) if he or she performs more than 240 hours of work in Seattle within a calendar year, however, these “occasional workers” in Seattle don’t start accruing PSST until they hit 240 hours. Work study employees are not covered by the Ordinance, and neither are (correctly classified) independent contractors.

Are you serious? How do I know if someone performs 240 hours of work in Seattle? By tracking their hours of course! In a small bit of good news, the Administrative Rules interpreting the Ordinance provide that tracking hours worked in Seattle can be delegated to employees provided that the employer meets the requirements for notice and posting and provided that the employer provides employees with a reasonable system for tracking hours. By the way, if an employee who works outside Seattle simply travels through the city or stops for gas, those hours do not count toward the 240 hours. However, if an employee conducts work in the City, then all travel time within the City to and from the work site counts.

I have employees who are exempt from overtime under the Fair Labor Standards Act and state law, are they entitled to PSST too? Yes, exempt employees are entitled to PSST, although exempt employees do not accrue PSST for hours worked beyond 40 in a workweek.

How much PSST do eligible employees accrue? Employees of Tier I and Tier II employers accrue 1 hour of PSST for every 40 hours worked. Employees of a Tier III employer accrue 1 hour of PSST for every 30 hours worked. Accrual began for current employees on September 1, 2012. New employees hired after September 1, 2012 will begin to accrue time from the start-date of their employment.

Is there any limit on accrual? Technically, no, but the ordinance does cap the use and carryover of PSST.

So what is the cap on use of PSST? That depends on the size of your business. Tier I employers need not allow use of PSST in excess of 40 hours in a calendar year. Tier II employers need not allow use of PSST in excess of 56 hours in a calendar year. Tier III employers need not allow use of PSST in excess of 72 hours in a calendar year.

How much PSST can an employee carry over? Again, that depends on the size of your business. Tier I employers must allow carryover of at least 40 hours to the following calendar year. Tier II employers must allow carryover of at least 56 hours to the following calendar year. And, you guessed it, Tier III employers must allow carryover of at least 72 hours to the following calendar year.

How about rules on usage? Employees are eligible to start using PSST after they have been employed for 180 days. If a current employee has been employed for 180 days, they are eligible to use accrued PSST at any time.

For what purposes can an employee use PSST? There are many possible uses. Uses include an employee’s mental or physical illness, injury or health condition, including diagnosis, treatment and preventative care (*note, this is a lower threshold than a serious health condition under the FMLA); an employee’s need to care for a family member (child, spouse, domestic partner, parent, parent-in-law, grandparent) with an illness, injury or medical appointment; reasons relating to domestic violence, sexual assault or stalking, or the closure of an employee’s place of business or child’s school for a public health emergency.

Are there any reasons that an employee cannot use PSST? Snow days.

Can I require medical documentation? Employers may require their employees document absences longer than three consecutive days. If employers do not offer health insurance, employers and employees should split the cost of obtaining such documentation (each pays 50%). This is a tricky area, and you should consult with counsel about documentation requirements.

What about those workers who work outside Seattle, and only occasionally work in Seattle, can they use their PSST outside Seattle? PSST must be used in Seattle (or when the person is scheduled to work in Seattle).

Do I have to pay out or compensate employees for accrued but unused PSST when an employee leaves employment? No, the Ordinance does not require payout of unused PSST.

What if my business already has a sick leave time policy, do I need to modify it? If your existing policy is equally generous (or more generous) than the Ordinance, then you do not need to modify it. Keep in mind it must be equally generous in all material respects.

What if my business has PTO instead of sick time? Employers may provide PTO or more generous benefits as long as the minimum number of hours is available for PSST and the PTO policy permits leave for the same purposes as the Ordinance. For Tier III employers with PTO, use of PSST is limited to no less than 108 hours within a calendar year, and up to 108 hours of unused PSST can be carried over to the next calendar year.

Are there notice requirements? Yes, employers covered by the ordinance should display a poster approved by the Seattle Office for Civil Rights in a conspicuous and accessible place in the workplace. Here is a link to the poster.

How about recordkeeping requirements? Those exist as well. The city claims that employers need not change their recordkeeping requirements as long as those records reasonably indicate the hours worked by employee, accrued PSST and PSST taken by employees. Employers may choose a reasonable system for providing this information to employees, such as on each paystub or an online system.

What should I do if my employees are represented by a union? The rules are different; consult with counsel.

Why is the City doing this? The City of Seattle claims that PSST will build family economic security, protect public health, create a more productive workplace and promote equality. While these would seem laudable goals, the compliance burden on many businesses could be onerous. Only time will tell if PSST fulfills the goals identified by the City without excessive cost to local businesses.

Is the City of Seattle going to start issuing citations to businesses right away? The City has the right to issue citations right away, but the Seattle Office for Civil Rights has indicated that it is committed to working with employers to ensure compliance, especially during the early implementation of the Ordinance. A complaint can be filed with the Seattle Office for Civil Rights within 180 days of the alleged violation of the Ordinance.

What else should I know? Well, the Ordinance prohibits retaliating against employees who take leave, so employers should be careful and train managers and supervisors. Also, there are special rules for new companies and for seasonal employees, so consult with counsel if you have questions.

Good luck. Your Riddell Williams lawyers are ready to help.


Should you have any questions about PSST or any other labor or employment-related matter, please do not hesitate to contact us.

The Riddell Williams Employment Law Group helps businesses comply with labor and employment laws and resolve disputes with employees. Our practice consists of four primary areas: counseling, litigation, training, and traditional labor law.

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