Paid sick leave rulemaking is ongoing

Earlier this month, the Department of Labor & Industries (L&I) released draft proposed rules for I-1433. I-1433, approved by voters last year, increases the state minimum wage (effective Jan. 1, 2017) and mandates paid sick leave statewide (effective Jan. 1, 2018).

Paid sick leave is a brand new requirement for many employers—unless they are in Seattle, SeaTac, Tacoma or Spokane. The paid sick leave ordinances in those four cities differ in their particulars (as shown in the table below—click on the table for a larger version). I-1433 does not preempt local governments from having standards that are more favorable to employees.

The rulemaking process will fill in many blanks as to how paid sick leave will be implemented at the state level (see also this post from November). Some points of interest from the draft proposed rules:

  • “Employee” has the same meaning as in RCW 49.46.010(3) and “employer” has the same meaning as in RCW 49.46.010(4). So, if employees are currently covered by minimum wage law, they would be eligible for paid sick leave.
  • The draft specifies that “accrual of paid sick leave may not be capped.” (The text of the initiative only says that employees must accrue at least one hour of leave for every 40 worked.)
  • In our report on I-1433, we noted that I-1433 does not limit the amount of paid sick leave that could be used in a year (Seattle, Tacoma and Spokane do). Thus, if employees carry over 40 hours from Year 1 to Year 2, and earn 52 hours in Year 2, they could use 92 hours of paid sick leave in Year 2. The draft rule confirms that: It notes that if an employee carries over 40 hours of leave into Year 2, “accrual of paid sick leave in the subsequent year would be in addition to the forty hours previously accrued and carried over.”
  • “Year” is defined as any “fixed consecutive twelve-month period established by the employer or collective bargaining agreement, and used in the ordinary course of the employer’s business for the purpose of calculating wages and benefits.”
  • Employees would not be “entitled to lost tips, gratuities, or service charges” when using paid sick leave.

L&I’s rulemaking cover letter notes that it “tried to align the I-1433 draft proposed rules with Seattle, Tacoma, Spokane and Oregon’s rules to provide some consistency for those stakeholders who have to comply with and use rules from multiple jurisdictions.”

The cover letter also states that

some of the rules for I-1433 are likely to be significant legislative rules – where the department exercises its discretion to establish a rule requirement that is an increased requirement for employers and could result in a penalty. For these rule changes, the department will perform a cost-benefit analysis and, if applicable, a small business economic impact statement.

Comments on the draft proposed rule are due by April 28. L&I expects to file the final rule on Oct. 17.

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