All employers who employ at least five full-time employees (in any city or state) and have at least one employee who performs work within the City of Seattle must soon comply with Seattle’s Sick/Safe Leave law. The new law goes into effect on September 1, 2012.  All employees, regardless of whether they are temporary, part-time or full-time have the right to paid sick/safe leave under this law if they work in Seattle on an “occasional basis,” or more than 240 hours within a calendar year.

The location of the employer’s business is not relevant.

The basics of the new law are:

Beginning on the 180th day of employment, employees can use their accrued sick leavefor their own mental or physical illness, injury or health condition, or treatment, diagnosis, or preventive medical care of the same. They also may use sick leave to provide care for a covered family member with an illness, injury or medical appointment.

Employees can use their accrued time as safe leave if their place of business has been closed by order of a public official to limit exposure to an infectious agent, biological toxin or hazardous material, to care for a child whose school or place of care has been closed for the same reasons, or for reasons related to domestic violence, sexual assault or stalking that affect the employee or the employee’s family member.

Other key provisions include:

• The new law’s provisions may be waived in a collective bargaining agreement, but individuals may not waive these rights.
• Employers must notify employees of their available, accrued time each time wages are paid, e.g., on employees’ pay stubs.
• Employers must post an approved notice in a conspicuous place regarding employees’ rights under the new law.
• Unused leave is carried over each year.
• Employers can require compliance with “reasonable normal notification policies or call-in procedures” so long as they do not interfere with the purposes for which leave is needed.
• Employers cannot require employees to provide verification, such as a doctor’s note, for absences of fewer than three days, unless there is a “pattern or clear instance of abuse.”
• Employers must credit service and reinstate any unused leave to an employee’s leave bank if the employee returns within seven months of a prior separation of employment.
• In the absence of another policy, leave does not need to be cashed out when employment ends.

Seattle’s Office of Civil Rights (SOCR) will administer compliance and enforcement of the new law. Employers not in compliance risk an administrative SOCR complaint or a private lawsuit. Remedies available in either forum include reinstatement of the employee, a monetary award totaling up to two years’ back pay, the value of lost benefits, the employee’s attorney’s fees, and damages of up $10,000 for emotional distress. Additionally, SOCR has the authority to order conciliation terms that “serve the public interest,” such as by requiring that training be given to management and employees, or that the employer make policy and procedure revisions.

SOCR’s administrative rules to implement the new law are available at http://www.cityofseattle.net/civilrights/Documents/PSST_Rules_Final06-29-12.pdf. All qualifying employers should review these rules.

The rules provide clarification to parts of the new law, including the circumstances under which a universal paid-time-off (PTO) policy can meet the employer’s new obligations. The rules also seek to define a “pattern or clear instance of abuse,” for purposes of requiring a doctor’s note or other verification for absences fewer than three days as “repeated absences or absences that precede or follow regular days off” or attempted “improper” use of sick time.  The new rules also obligate an employer to split the employee’s out-of-pocket cost for obtaining a doctor’s note to support the reason for the employee’s absence unless the employee is covered by the employer’s health insurance plan.

Certain additional compliance requirements can trap unprepared employers. They include failing to recognize the need to comply with the law even if the employer has only a single employee working within Seattle on an occasional basis (at least 240 hours per year). Such employees can include delivery drivers, couriers, outside sales personnel who call on Seattle-based customers, and telecommuting workers who are located physically in Seattle. Time “traveling through” Seattle without stopping, however, does not qualify as time worked under the new law. Other traps include failing to communicate the amount of leave accrued on each employee paycheck even if the employer has a universal PTO policy, requiring a doctor’s note for leave of fewer than three days without proof of abuse, demanding more than the employee’s own statement for use of safe leave (e.g., domestic violence situations), failing to track actual hours worked within the City of Seattle for workers who only occasionally work within the city, and failing to meet simple, but exact, notice requirements.

The SOCR’s Frequently Asked Questions sheet is available at http://www.cityofseattle.net/civilrights/FAQSickLeave.htm. Jackson Lewis attorneys are available to assist with compliance and implementation strategies.

This News Break is courtesy of Jackson Lewis and can be seen here http://www.jacksonlewis.com/resources.php?NewsID=4165

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