In November 2016, Washington voters approved Initiative Measure No. 1433 (“IM 1433”) which provides for an incremental increase to the state minimum wage as of January 1, 2017 and also provides for paid sick leave benefits beginning January 1, 2018. The stated intent behind IM 1443 is expressed in the initiative as follows:
“BE IT ENACTED BY THE PEOPLE OF THE STATE OF WASHINGTON: …
It is the intent of the people to establish fair labor standards and protect the rights of workers by increasing the hourly minimum wage to $11.00 (2017), $11.50 (2018), $12.00 (2019) and $13.50 (2020), and requiring employers to provide employees with paid sick leave to care for the health of themselves and their families.”
Washington’s increase in state minimum wage is in-line with many other states that are recognizing the need for a livable minimum wage. Also, other states, including California and Oregon on the West Coast, have already taken action to require employers to provide paid sick leave benefits. However, most of these laws were passed through the state legislature. Only one other state, Arizona, has enacted such a law through a ballot measure voted on by the people like Washington.
Below is a summary of IM 1443:
- Beginning January 1, 2017, every employer shall pay to each of his or her employees 18 years of age and older no less than $11 per hour.
- Beginning January 1, 2018, every employer shall pay to each of his or her employees 18 years of age and older no less than $11.50 per hour.
- Beginning January 1, 2019, every employer shall pay to each of his or her employees 18 years of age and older no less than $12.00 per hour.
- Beginning January 1, 2020, every employer shall pay to each of his or her employees 18 years of age and older no less than $13.50 per hour.
- Beginning on January 1, 2021, and each following January 1st, every employer shall pay to each of his or her employees 18 years of age and older, no less than the amount established by the Washington Department of Labor and Industries on the September 30th The adjusted minimum wage rate shall be calculated to the nearest cent using the consumer price index for urban wage earners and clerical workers, CPI-W, or a successor index, for the twelve months prior to each September 1st as calculated by the United States Department of Labor.
- Tips and service charges paid to an employee are in addition to, and may not count towards, the employee’s hourly minimum wage.
NOTE: Employers who have employees working in certain municipalities that may have higher minimum wage requirements (e.g. Seattle and Tacoma), still must comply with the higher minimum wage.
- Beginning January 1, 2018, every employer shall provide each of its employees paid sick leave at the rate of one hour for every 40 hours worked. Unused paid sick leave carries over to the following year, except that an employer is not required to allow an employee to carry over paid sick leave in excess of 40 hours.
- An employer may provide paid sick leave in advance of accrual provided that such front-loading meets or exceeds the requirements of this section for accrual, use, and carryover of paid sick leave.
- An employee is authorized to use paid sick leave for the following reasons:
- An absence resulting from an employee’s mental or physical illness, injury, or health condition; to accommodate the employee’s need for medical diagnosis, care, or treatment of a mental or physical illness, injury, or health condition; or an employee’s need for preventive medical care;
- To allow the employee to provide care for a “family member” with a mental or physical illness, injury, or health condition; care of a family member who needs medical diagnosis, care, or treatment of a mental or physical illness, injury, or health condition; or care for a family member who needs preventive medical care; and
- When the employee’s place of business has been closed by order of a public official for any health-related reason, or when an employee’s child’s school or place of care has been closed for such a reason.
- For absences that qualify for leave under Washington’s Domestic Violence Leave Act.
- For purposes of this section, “family member” means any of the following: (a) A child, including a biological, adopted, or foster child, stepchild, or a child to whom the employee stands in loco parentis, is a legal guardian, or is a de facto parent, regardless of age or dependency status; (b) A biological, adoptive, de facto, or foster parent, stepparent, or legal guardian of an employee or the employee’s spouse or registered domestic partner, or a person who stood in loco parentis when the employee was a minor child; (c) a spouse; (d) a registered domestic partner; (e) a grandparent; (f) a grandchild; or (g) a sibling.
- An employee is entitled to use accrued paid sick leave beginning on the 90th calendar day after the commencement of his or her employment.
- Employers are not prevented from providing more generous paid sick leave policies or permitting use of paid sick leave for additional purposes.
- Employers may require employees to give reasonable notice of an absence from work, so long as such notice does not interfere with an employee’s lawful use of paid sick leave.
- For absences exceeding three days, an employer may require verification that an employee’s use of paid sick leave is for an authorized purpose. If an employer requires verification, verification must be provided to the employer within a reasonable time period during or after the leave. An employer’s requirements for verification may not result in an unreasonable burden or expense on the employee and may not exceed privacy or verification requirements otherwise established by law.
- An employer may not require, as a condition of an employee taking paid sick leave, that the employee search for or find a replacement worker to cover the hours during which the employee is on paid sick leave.
- For each hour of paid sick leave used, an employee shall be paid the greater of Washington’s minimum hourly wage rate or his or her normal hourly compensation.
- The employer is responsible for providing regular notification to employees about the amount of paid sick leave available to the employee.
- Paid sick leave is not a vested right and thus, employers are not required to pay out accrued and unused sick leave upon separation of employment. However, when there is a separation from employment and the employee is rehired within 12 months of separation, whether at the same or a different business location, previously accrued and unused paid sick leave shall be reinstated and the previous period of employment shall be counted for purposes of determining the employee’s eligibility to use paid sick leave.
- An employer may not adopt or enforce any policy that counts the use of paid sick leave time as an absence that may lead to or result in discipline against the employee.
- An employer may not discriminate or retaliate against an employee for his or her exercise of any rights under this chapter including the use of paid sick leave.
IM 1433 is silent on an employer’s use of an existing PTO policy to satisfy the employer’s obligations under the law. However, the law does state that the law provides for minimum standards and that any more generous benefits provided for under another law or regulation shall not be affected by the law. With that said, if an employer has a more generous sick leave policy or PTO policy that allows for the use of paid sick leave or PTO for the same purposes as those listed in the law, and does not otherwise conflict with the requirements under the law, then such policies will likely remain sufficient under Washington law. However, employers are advised to consult with their employment counsel and have their sick leave policies or PTO policies reviewed to ensure compliance by January 1, 2018.