For employers with Washington State operations, what happened in 2018 does not necessarily stay in 2018. Those bidding 2018 farewell cannot say goodbye to various paid sick and safe time (PSST) policy, notice, and leave calculation obligations in 2019. Additionally, employers with unionized workforces in Seattle have limited time to except themselves from city standards that exceed state law requirements, and employers subject to SeaTac’s PSST law must balance local year-end cash-out requirements with the state law carryover mandate.
First 2019 Paystub Notice: Under state law and Tacoma law, employees must be notified at least monthly – in Seattle, each time wages are paid in Seattle – in writing or electronically, of their PSST balance. Tacoma’s law requires notice of the updated amount of leave available. State law and Seattle’s law require notice of the amount of accrued leave, unused available leave, and leave “reductions” that occurred since the last notification. A “reduction” includes leave not carried over to the following year. Accordingly, if an employee is covered only under state and/or Seattle law, or covered by state and Tacoma law, and an employer limits the amounts that will carry over into 2019, the first notice issued in 2019 must include those amounts that are not carried over.
Advanced Leave Audits, Policies & Notices: All three laws allow employers to grant PSST to employees in lieu of tracking accrual, if the amount granted is reasonably calculated to meet or exceed the laws’ requirements. Employers that advanced time in 2018 based on a calendar-year system – especially those that limit how much leave will be carried over into 2019 – and those that intend to advance leave in 2019, should take the following actions:
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Audit 2018 Hours: Determine whether the amount of advanced leave equals, exceeds, or is less than what the employee would have accrued during the year if accrual was tracked more frequently. Comparing the numbers will also help determine the amount of leave to advance in 2019.
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Adjust Hours: If the amount of advanced leave hours is less than what the employee would have earned, the employee’s leave bank must be topped up. The adjustment must occur no later than 30 days after identifying the discrepancy.
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Review Absences: If the calculations reveal an employee was provided fewer hours than what would have been accrued, determine whether the employee took any unpaid absences that would have been covered by, and paid, under the laws had those hours been available, and issue payment for those hours.
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Provide Policy and/or Notice: Under all three laws, employers must have a written policy or collective bargaining agreement (CBA) notifying employees that they will be advanced leave, which must be provided to employees before leave is advanced. Additionally, in Seattle, written or electronic notice must be provided no later than the end of the pay period for which advanced leave is intended to cover, establishing that the leave amount was at least equal to the amount of leave that must be accrued under the law.
Limited Time to “Waive” Goodbye to Seattle’s More Generous Requirements: Beginning on January 1, 2019 (or when a CBA expires, for CBAs in existence on December 31, 2018), none of the Seattle standards that exceed state law requirements may be waived. Accordingly, time is running out to negotiate waivers with unions and file those waivers with Seattle’s Office of Labor Standards.
Reconcile State Carryover with SeaTac Cash-Out: SeaTac’s law requires employers to cash out accrued, unused leave at the end of each calendar year. SeaTac’s law, however, predates the state law requiring carryover and permitting 40 hours capped carry-over. For employers covered by both laws, any time in excess of the 40 hours that is carried over under the state law is subject to SeaTac’s cash-out requirement.
Employers with employees who work in Washington State, SeaTac, Seattle, and/or Tacoma should consider taking advantage of what time remains in 2018 to review their current policies and practices to ensure compliance with existing and future paid sick and safe time obligations.
