By William M. Symmes and Amy M. Mensik, Witherspoon Kelley
On January 11, 2016, the Spokane City Council passed an ordinance requiring employers to provide employees "earned" (i.e., paid) sick and safe leave (ESSL). Spokane, Washington is the latest city in an increasing number of cities, counties, and states across the U.S. to mandate paid sick and safe leave. A copy of the ESSL ordinance as passed by the city council on January 11, 2016 is available here. The ESSL ordinance now goes to the mayor for approval; however, it is anticipated that this ordinance will go into effect as the city council has enough votes to override a mayoral veto, if any. [Update 1/25/16: As expected, the mayor vetoed the ESSL ordinance on January 22; however, the city council overrode that veto on January 25, setting the stage for the ordinance to take effect as passed.]
As written and passed by city council, the Spokane ESSL ordinance is slated to take effect January 1, 2017. But employers should start thinking now about how the law may affect their policies and practices. Witherspoon Kelley labor and employment law attorneys will be conducting a complimentary webinar in the near future to assist HR professionals ensure that their organization is compliant with the law. The webinar will also provide insight and recommendations on areas where the ESSL ordinance is potentially unclear. More details, including the exact date, time, and registration details for the webinar will follow.
In the meantime, here is a summary of the ESSL law as passed by the Spokane City Council and some potential implications:
What Are the Basics of Spokane's ESSL Law?
As passed by the city council, Spokane's ESSL ordinance applies to all private employers (including non-profits) in the city of Spokane who employ at least one employee within the city. With few exceptions, all employees who perform their work in Spokane for an employer in Spokane are covered by the law, including full-time, part-time, and "temporary" workers. Employees who only occasionally enter the city for work for a covered employer are only covered once they physically work more than 240 hours within the city in a year.
Employees are entitled to accrue at least one (1) hour of ESSL for every 30 hours worked. Employees start accruing ESSL from their first day of employment (or once an out-of-city employee reaches 240 hours work within the city). Although accrual starts immediately, employers can require employees to wait no more than 90 days after the start of employment to use accrued ESSL.
Per the ordinance as passed, the amount of accrued leave an employee may use per year depends on employer size. For employers with 10 or more employees, employees must be able to use at least 40 hours (5 days) of ESSL per year. Employees of employers with fewer than 10 employees may use at least 24 hours (3 days) of ESSL per year. Employers must also permit employees to carry over at least 24 hours of accrued but unused ESSL to the next year. Employees must be compensated for ESSL use at their regular rate of pay and benefits. The ordinance does not require employers to "cash out" accrued but unused ESSL upon the employee's separation or otherwise.
Employees can use ESSL for their own illness, injury, or preventative care, or for those health needs of the employee's family member (spouse/domestic partner, minor child or adult child incapable of self-care due to disability, parent or guardian, grandparent, or grandchild). Employees must also be allowed to use ESSL for issues related to the employee's or employee's family member's status as a victim of domestic violence, sexual assault, or stalking, or when the employer's place of business or employee's child's school or daycare is closed by a public official. Finally, ESSL may be used for bereavement leave for a family member.
The ESSL law, as passed by the city council, also requires employers to comply with various notice, posting, and other certification requirements. Employers are also prohibited from retaliating against an employee because of an employee's exercise of rights under the ESSL law, or from "misrepresenting" the employer's business activities in order to evade the law's requirements.
My Organization Already Offers the Same Amount or More Paid Leave than Spokane's ESSL Law Requires. Will That Comply?
Not necessarily. Employers with existing (even more generous) sick leave or all-purpose "PTO" policies must still comply with the ESSL law's minimum standards, including, but not limited to, accrual rates, limits on waiting periods, usage, notice, etc. For example, employers who offer 40 hours (5 days) of annual PTO that accrues over the year likely do not comply with the minimum accrual rate in the ordinance as passed by the city council. Existing policies with more than a 90-day waiting period to use sick leave or PTO, or those that only cover full time workers will also need to be changed. Various other changes to existing personnel policies and practices may also be needed.
How Will the ESSL Ordinance Be Enforced and What Are the Penalties for Violations?
As passed by the council, the ESSL ordinance currently does not specify the exact procedures for how the ESSL law will be enforced (e.g., which division within Spokane city government will enforce the law, etc.), stating procedures will be issued by October 2016. As currently drafted, a violation of the ESSL law is classified as a civil infraction under Spokane city code, which may include graduating penalties for multiple infractions. The city may also revoke or refuse to renew an employer's business license. The Spokane ESSL ordinance does not currently provide employees a right to bring a private lawsuit against an employer for violating the law.
Next Steps for Employers
Spokane's ESSL law states it will take effect January 1, 2017, but employers should start considering now what they may need to do to ensure compliance, including reviewing existing policies and practices. Get a head start and join Witherspoon Kelley labor and employment attorneys at our upcoming free webinar on the Spokane ESSL law. More details on the date, time, and registration for this webinar will follow. Please feel free to contact us for more information in the meantime, Amy Mensik (mailto:email@example.com) and William M. Symmes (mailto:firstname.lastname@example.org), or by phone at 509-624-5265. Please also check out the rest of our firm's website to see what else we're up to.