On September 1, 2012, the new chapter in the Seattle Municipal Code (SMC 14.16), referred to as the Seattle Paid Sick and Safe Time Ordinance (“Ordinance”), became effective. Here is an overview of how the Ordinance impacts all employees that perform work within Seattle’s City limits.
- Employers with five or more full-time equivalent (“FTE”) employees, regardless of where the employees work, are required to provide Paid Sick Time (“PS”) and Safe Time (“ST”) to covered employees.
- Covered employees begin to accrue PS&ST on September 1, 2012.
- For employees hired after September 1, 2012, accrual begins on the first day of employment. However, covered employees are not eligible to use accrued PS&ST until 180 calendar days from the beginning of employment.
- Employers are required to provide employees with notice of their rights under the Ordinance and maintain conspicuous notice postings in the workplace
- Employers are required to track the accrual and usage of PS&ST and provide covered employees with written notice of how much PS&ST they have available each time wages are paid.
- The Ordinance applies to both FLSA exempt and non-exempt employees.
- Accrual is based on hours worked in Seattle, including overtime for non-exempt covered employees.
- Accrual is not required during employees’ use of paid/unpaid leave.
- PS can be used for: 1) personal illness or preventative care; and 2) caring for a family member’s (defined as: child, grandparent, parent, parent-in-law, spouse and registered domestic partner) illness or preventative care.
- ST can be used for: 1) issues arising from domestic violence, sexual assault or stalking; and 2) closure of a workplace or child’s school or place of care to limit exposure to an infectious agent, biological toxin or hazardous material.
- The Ordinance divides employers into three “tiers” and sets minimum requirements for the accrual, use, and carryover of earned PS&ST based on the employer’s tier classification.
- Employees that are covered by a Collective Bargaining Agreement are entitled to PS&ST under the Ordinance, in addition to the leave benefits in the CBA.
- The Ordinance also offers basic job protections for employees that elect to use PS&ST.
- Full-time, part-time, temporary (except those employed by staffing agency), occasional employees, and undocumented workers that perform work in Seattle’s City limits.
- An employee who performs work in Seattle on an “occasional basis” is covered if she performs more than 240 hours of work in a calendar year.
- Employees who telecommute in Seattle.
- Employees who make stops in Seattle as a purpose of their work.
- Federal, state, or county government employees.
- Employees that travel through Seattle, but do not stop in Seattle as a purpose of their work.
- Employees who work for a Seattle-based employer but who work or telecommute outside of Seattle.
- Students enrolled in a work-study program.
- Temporary workers hired through a staffing agency are deemed employees of the staffing agency (absent a contractual arrangement stating otherwise).
- Small and medium sized employers are exempt from some portions of the Ordinance until they have been operating for two years (24 months) and have at least five FTE employees.
EMPLOYER “TIER” CLASSIFICATIONS:
- Tier 1 (small employer): More than 4 but less 50 FTEs on average per calendar week during the previous calendar year.
- Tier 2 (medium employer): More than 49 but less than 250 FTEs on average per calendar week during the previous calendar year.
- Tier 3 (large employer): 250 or more FTEs on average per calendar week during the previous calendar year.
TIER 1 EMPLOYER REQUIREMENTS:
- Covered employees accrue 1 hour of PS&ST for every 40 hours worked.
- Covered employees can use up to 40 hours of PS&ST in a calendar year.
- Covered employees must be allowed to carryover up to 40 hours of unused PS&ST per calendar year.
TIER 2 EMPLOYER REQUIREMENTS:
- Covered employees accrue 1 hour of PS&ST for every 40 hours worked.
- Covered employees can use up to 56 hours of PS&ST in a calendar year.
- Covered employees must be allowed to carryover up to 56 hours of unused PS&ST per calendar year.
TIER 3 EMPLOYER REQUIREMENTS:
- Covered employees accrue 1 hour of PS&ST for every 30 hours worked.
- Covered employees can use up to 72 hours of PS&ST in a calendar year.
- Covered employees must be allowed to carryover up to 72 hours of unused PS&ST per calendar year. For Tier 3 employers that have PTO benefit systems, the use and carryover of PS&ST increases from 72 hours to 108 hours.
REQUESTING USE OF PS&ST:
- Foreseeable leave: the employee must provide a written request at least 10 days in advance of leave, unless the employer’s own leave policy requires less notice.
- Unforeseeable leave: the employee must give notice “as soon as practicable.” If the employer has its own policy for unforeseeable leave, the request must comply with the employer’s policy.
- Paid safe time: notice must be given at the end of the first day of use of such leave.
EMPLOYEE DOCUMENTATION FOR USE OF PS&ST:
- Use of PS&ST for 1-3 consecutive days: the employee is not required to provide documentation.
- Use of PS&ST for more than 3 consecutive days: the employer may request documentation.
- EXCEPTION: if there is evidence of a clear instance or pattern of PS&ST abuse (including repeated absences or the absence precedes or follows a regular day off ), the employer may ask for reasonable documentation for absences that are shorter than 3 days.
- If documentation is required, the employer cannot require the employee to reveal the nature of the illness or other private medical information.
- Payment for documentation when required: 1) if the employer does not offer health insurance, the employee and employer each pay 50% of the cost to obtain documentation; or 2) if the employee declined the employer’s health insurance, the employee is not entitled to reimbursement for the cost to obtain documentation.
WAIVER OF RIGHTS UNDER THE ORDINANCE:
- Individual employees cannot waive their rights under the Ordinance.
- Waiver of rights in a CBA or in a separate addendum to the CBA is permitted, but the waiver must be in clear and unambiguous language and it must include a specific reference to the Ordinance.
- The waiver only applies to those employees covered by the CBA.
OTHER IMPORTANT FACTS:
- Employees are paid at the same hourly rate they would have earned during the time PS&ST was taken. However, this excludes any tips or commission that employee would have earned during that time.
- Employers may not include use of PT&ST in its no fault attendance policies for disciplinary purposes.
- PS&ST can be used in hour-long increments.
- Combined or universal leave, such as Personal Time Off (“PTO”), policies are permitted, provided they comply with the Ordinance.
- The Ordinance permits frontloading of PS&ST for accrual, use and carryover.
- If the employer allows, covered employees have the voluntary option to cash out unused PS&ST.
- Employee use of PS&ST can be coordinated with other leave laws such as FMLA, Washington Care Act, Domestic Violence Leave, and Workers Compensation.
- If an employee is rehired within 7 months of separation by the same employer, the employee’s previously accrued PS&ST must be reinstated.
- The Seattle Office for Civil Rights (“SOCR”) enforces the Ordinance and is tasked with investigating complaints of Ordinance violations.
- Complaints must be filed within 180 days of the alleged violation.
- If an employee files a complaint with the SOCR, the SOCR will investigate the complaint and issue findings of fact and a determination of reasonable cause or no reasonable cause for believing a violation of the Ordinance has been committed.
- Available employee remedies through the SOCR include: hiring, reinstatement, recovery of backpay for up to two years preceding the filing of the complaint, upgrading with or without backpay, lost benefits, attorney’s fees, admittance or restoration to membership in a labor organization and damages for humiliation and mental suffering not to exceed $10,000.
- If a determination is made that there is no reasonable cause for believing a violation of the Ordinance has been committed, the complaining party has the right to appeal the determination to the Human Rights Commission within 30 days of the date of the SOCR’s determination.
- Violations of the notice and posting requirements could result in a $125 civil fine for the first violation and $250 civil fine for subsequent violations.
- Penalties for willful violations are subject to the Seattle Criminal Code and civil fines up to $500 for any person convicted of violating the Ordinance.