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Wading through what to do with state and local paid sick leave

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The association is fielding numerous member questions regarding employee paid sick leave in Washington state amid the coronavirus outbreak. Information is changing quickly. Here is clarity as of March 20, 2020. Your association will continue to update you on paid sick leave as new information is verified.

Washington state clarity

According to the Washington State Department of Labor and Industries, the governor’s March 15 request in response to the coronavirus outbreak is not viewed as a closure by a public official for a health-related reason as described under RCW 49.46.210(1)(c)(iii).

  • This means an employee who had worked in a business that completely shut down after the governor’s order would not be entitled to use accrued paid sick leave.

According to the governor’s orders, the state prohibited “any number of people from gathering in any public venue in which… food and beverage service… serving, provision, or consumption of prepared food or beverages occurs at a table, bar, or for consumption within.” The department does not interpret the governor’s orders as a complete shutdown of affected businesses, but a temporary shutdown of certain operations affected businesses may practice.

If an employer cannot afford to operate take-out or delivery because of economic hardship, or simply chooses not to provide such service, the department would not interpret this as meeting the authorized purpose for paid sick leave use detailed under RCW 49.46.210(1)(c)(iii).

The department still encourages employers to apply flexible paid sick leave programs to help employees who may be affected by recent circumstances. Additionally, affected employees may be eligible for unemployment insurance through the Employment Security Department.

Many of you are asking: Can employees use paid sick leave while also using the standby program offered by the Employment Security Department? Standby employees are not currently working in any capacity. They are deemed standby, do not have to look for work while on unemployment and they have a projected return to work date between four to eight weeks.

According to the Washington State Department of Labor and Industries, it said it believes employees on standby would not be entitled to use paid sick leave. Employees are only allowed to use paid sick leave during times in which they are required to be on shift. The department interprets this to mean that there is a reasonable expectation by the employer that the employee will be present in the employer’s place of business to perform work. To further clarify further, essentially once the employee has committed to working a shift.

If your business is in Seattle

In March 2020, the Seattle City Council passed amendments to the city’s Paid Sick and Safe Time (PSST) Ordinance that expand authorized uses for how employees can use their accrued Paid Sick and Safe Time. Citing the civil emergency declared by Mayor Jenny Durkan related to coronavirus, the amendments went into effect immediately following the mayor’s signature on March 18, 2020.

Under the changes, employees are now authorized to use Paid Sick and Safe Time in two new ways:

  1. When the place of business of a Tier 3 employer (defined as 250 and greater full-time equivalent employees) closes or reduces operations for health or safety reasons.
  2. When the employee’s family member’s school or place of care has been closed. (Under the previous ordinance, “an order of public official, for any health-related reason” was required as a condition to allow use of Paid Sick and Safe Time for the closure of a school or place of care.)
    1. The amended language also adds “family member” language, when previously an employee was permitted to use Paid Sick and Safe Time only if a child’s school or place of care closed.

Several questions businesses have related to Seattle’s PSST policy and the coronavirus are:

Can an employee use PSST if their business has closed temporarily because of a possible health concern like COVID-19?

Yes, under the following circumstances:

  1. All employers must allow employees to take PSST if their place of work is closed by order of a public official for a health-related reason.
  2. Employers of 250 or more full-time equivalent employees worldwide must allow employees to take PSST if their place of work reduces operations or closes for any health or safety related reason. The closure does not have to be ordered or recommended by a public official.

Are employers required to cash out unused PSST if a business is closed permanently and an employee is laid off?

No, employers are not required to cash out unused PSST upon an employee’s termination, resignation, retirement or other separation from employment. Please refer to the Seattle Office of Labor Standards guide: https://www.seattle.gov/Documents/Departments/LaborStandards/PSSTQA011519(1).pdf

When can an employer ask for verification of the employee’s use of PSST?

After an absence of three days, an employer can require documentation that continued use of PSST is necessary. The employee cannot be required to explain the nature of the use, only that the use was authorized. 

To see the full ordinance, a comprehensive document on PSST, as well as a Q&A relative to coronavirus, click here.

New federal mandates start April 1, 2020

  • The Washington State Department of Labor and Industries said it is still scoping how the new federal relief bill will interact with the state’s protections.