Client Bulletin #476
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On September 1, the "Seattle Paid Sick and Safe Time" ("PSST") ordinance will take effect for employers with more than four full-time equivalent employees. The ordinance obviously affects employers whose employees physically work within the city limits, but it also applies to employees from anywhere, if they perform occasional work in Seattle. The PSST ordinance, enacted in 2011, may be difficult for employers to implement. Here is an overview of some of the key provisions.
Background and Coverage
The ordinance divides employers into "tiers," with Tier 1 employers being those with more than four but fewer than 50 FTE employees; Tier 2 employers include those with at least 50, but less than 250 FTE employees; and Tier 3 employers being those with 250 or more FTE employees. (Fractional FTEs are counted.) For employers in existence for more than 24 months, the ordinance is effective September 1, 2012, but the provisions do not apply to"new" Tier 1 and Tier 2 employers until 24 months after they hire their first employee. Employer size is based on the size of the company as an entity, not just the number of employees in Seattle.
Paid time off is available for (1) the employee's personal illness or preventive care; (2) the illness or preventive care of an employee's family member (defined as child, parent, grandparent, parent-in-law, spouse, or registered domestic partner); (3) survivors of domestic violence, sexual assault, or stalking; and (4) closure of the employee's workplace or child care facility by public officials to contain infectious disease.
The ordinance covers (1) full-time, part-time, and occasional employees who work in Seattle; (2) employees who telecommute in Seattle; and (3) employees who stop in Seattle as part of their work. It does not apply to (1) federal, state, or county government employees; (2) employees who work or telecommute outside of Seattle; (3) employees who simply travel through Seattle, but do not stop and perform work there (for example, truck drivers passing through on their way to other destinations); or (4) students enrolled in work-study programs.
Accrual, Carryover, Use and Rate of Pay
Seattle-Based Employees. An employer's full-time and part-time employees in Seattle accrue PSST leave beginning September 1 (or on the date of hire, if later) as follows: (1) for Tier 1 and Tier 2 employers, one hour of PSST leave for every 40 hours of work; and (2) for Tier 3 employers, one hour of PSST leave for every 30 hours of work.
After they have been employed for 180 days, employees may use or carry over from year to year accrued PSST leave of up to 40 hours if they work for Tier 1 employers; up to 56 hours if they work for Tier 2 employers; and up to 72 hours if they work for Tier 3 employers. The rate of pay for PSST leave is the employee's regular rate of pay at the time leave is taken, but it does not include tips or commissions that may have been lost as a result of the PSST leave. Generally, employers may require employees to take PSST leave in minimum increments of one hour, but they may permit employees at the employees' option to take the leave in smaller increments.
Employees of "new" Tier 1 or Tier 2 employers (see above) may not use accrued PSST leave until after 24 months from the date of hire of the employer's first employee.
Employees Based Elsewhere. Employees who work in Seattle only occasionally (for example, truck drivers making stops, salespeople making sales calls, or people traveling to Seattle on business) accrue at the same rates described above, but not until they have worked a total of 240 hours in Seattle. Once they have reached the 240-hour point, they are covered for that calendar year and the following calendar year.
However, employees based elsewhere are not entitled to use PSST leave except when they are actually working or scheduled to work in Seattle. It is hoped that this provision means, as a practical matter, that a non-Seattle employee would almost never be able to take PSST leave; however, employers of non-Seattle-based employees would still be responsible for complying with the notice and recordkeeping, and anti-retaliation, requirements described below.
Employee PSST Leave Request and Documentation
In the case of leave for medical reasons, employees are required to provide at least 10 days' notice if the leave is foreseeable, or "as soon as practicable" if the leave is unforeseeable. School or workplace shutdowns for infectious disease are treated as unforeseeable and require notice as soon as practicable. The employer can require the employee to provide notice in accordance with its other leave policies as long as the policy provides for no more notice than required by the PSST. If the leave is taken under the domestic violence, sexual assault, or stalking provision, notice must be given by the end of the first day of absence (for example, if an employee is sexually assaulted, he or she does not have to request PSST leave before the work day begins, even if the employer's attendance policy normally requires that).
For absences of 1-3 days, the employee is not required to provide any documentation. For absences that last longer than three consecutive days, the employer can request documentation. These rules apply regardless of the reason for the leave. If the employer requires medical documentation and does not offer medical insurance, it must pay 50 percent of the cost of getting the documentation. If the employer offers medical insurance but the employee has declined it, then the employee bears the full cost of obtaining any required documentation. For the domestic violence, sexual assault, and stalking provision of the ordinance, the employee can provide documentation in the form of police report, court order, or other documentation of the situation, including a written statement by employee.
Notice and Recordkeeping
Employers must provide notice of PSST rights to employees who work in Seattle, whether they do so on a full-time, part-time, or occasional basis. The notice must be conspicuous and accessible, and it may be provided in electronic form. Along with other explanatory materials, the website of the Seattle Office of Civil Rights has a poster that can be used. Employers must provide employees with notification of their available PSST leave with every paycheck, either on the paystub or online. Finally, employers must keep records for those employees who performed work in Seattle for two years that show (1) hours worked in Seattle by employee; (2) accrued PSST leave by employee; and (3) use of PSST leave by employee.
Employers are permitted, but not required, to allow employees to "cash out" PSST leave. Except as provided in collective bargaining agreements, employees cannot waive their rights to PSST leave. If an employee is rehired within seven months of a termination (voluntary or involuntary), the employee's accrued PSST leave must be reinstated. PSST leave can be coordinated and run concurrently with leave under other laws (although at this point it is difficult to see how that will work). Absences for PSST leave cannot be counted against the employees under attendance policies, but employers can take disciplinary action if there is a clear "instance or pattern of abuse" of PSST leave. Not surprisingly, the ordinance also prohibits retaliation against employees for taking PSST leave.
The ordinance is enforced by the Seattle Office of Civil Rights and the Seattle City Attorney's Office but does not appear to provide a private right of action. Remedies at both the administrative stage and in any action brought by the City Attorney include backpay (to a maximum of two years), compensatory damages, lost benefits, reinstatement, and other remedies designed to effectuate the purposes of the PSST.
Employers with Existing Paid Time Off Policies
If an employer already has an existing paid time off policy that allows for the accrual, use, and carryover of PTO for the same purposes, and under the same conditions, as PSST leave, it may only have to amend the PTO policy to include time off for the events that trigger PSST leave and ensure that it is providing at least the same levels of accrual, use, and carryover of PTO leave. The ordinance specifically contemplates PSST leave under an employer's combined PTO policy. If a Tier 3 employer has a combined PTO policy that covers PSST leave events, it must allow for carryover of a minimum of 108 hours.
Seattle Will Assess Impact of the Ordinance
The Seattle Office of the City Auditor will be evaluating the PSST's early implementation efforts and effects on employers by sending out surveys to businesses.
Can They Even Do This?
It is no surprise that the Seattle Office of Civil Rights is inundated with inquiries regarding this ordinance. It is possible that the ordinance could be enjoined or implementation delayed; however, as of this writing, the ordinance will go into effect as planned on September 1, just in time for Labor Day weekend.
For more information about the Seattle PSST ordinance, or for assistance in implementing its provisions, please contact the Constangy attorney of your choice.
About Constangy, Brooks & Smith, LLP
Constangy, Brooks & Smith, LLP has counseled employers on labor and employment law matters, exclusively, since 1946. A "Go To" Law Firm in Corporate Counsel and Fortune Magazine, it represents Fortune 500 corporations and small companies across the country. Its attorneys are consistently rated as top lawyers in their practice areas by sources such as Chambers USA, Martindale-Hubbell, and Top One Hundred Labor Attorneys in the United States, and the firm is top-ranked by the U.S. News & World Report/Best Lawyers Best Law Firms survey. More than 140 lawyers partner with clients to provide cost-effective legal services and sound preventive advice to enhance the employer-employee relationship. Offices are located in Alabama, California, Florida, Georgia, Illinois, Massachusetts, Missouri, New Jersey, North Carolina, South Carolina, Tennessee, Texas, Virginia and Wisconsin. For more information, visit www.constangy.com.