Washington Initiative 1433: PSL-4Step Analysis

I recently introduced the PSL-4Step framework to analyze a PSL law. Here, we use that framework to report on Washington state’s Initiative 1433, which was approved by voters last week.wa-seal

Step 1: Does it apply?

Effective January 1, 2018, “every employer” shall provide “each of its employees” PSL under this Initiative.

Step 2:  the Benefit

Accrual: One hour of leave for every 40 hours worked, beginning the first day of employment, which may be used on the 90th calendar day of employment. Amount of accrual is uncapped.

Rate of Pay: The greater of the state minimum hourly wage or employee’s normal hourly compensation.

Unused Hours: Carried over to the following year, but employer may cap the carryover at 40 hours.

Alternatives to Accrual: Frontloading allowed if it “meets or exceeds” the law’s requirements for accrual, use, and carryover of PSL.

Uses of PSL:

  • Employee’s or family member’s illness, injury or health condition (including diagnosis, care or treatment) or preventative medical care;
  • When employee’s workplace, or employee’s child’s school or place of care is closed by a public official for a health reason;
  • Leave under the state’s domestic violence leave act;
  • Other reasons permitted by the employer.

Step 3: Common Clauses

Family Member: Spouse, registered domestic partner, child, parent, grandparent, grandchild or sibling.

  • “Child” includes biological, adopted, foster, stepchild; person to whom employee stands in loco parentis or is a legal guardian, or is a “de facto parent,” regardless of age or dependency status;
  • “Parent” includes biological, adopted, de facto or foster parent; stepparent; legal guardian of an employee or employee’s spouse; registered domestic partner, person who stood in loco parentis with the employee when a minor child; person to whom employee stands in loco parentis or is a legal guardian, or is a “de facto parent,” regardless of age or dependency status;

Notice Requirements: An employer may require employees to give reasonable notice of absence so long as such notice does not interfere with an employee’s lawful use of PSL An employer must notify employees regularly about their available PSL

Documentation: For absences “exceeding three days,” an employer may require certification use of PSL is for an authorized purpose, but such requirement may not result in “an unreasonable burden or  expense” on employee and “may not exceed privacy or verification requirements” otherwise established by law. If verification is requested, an employee must provide it within a reasonable period of time during or after the leave.

Replacement Requirement: Prohibited. An employer may not require that an employee search for or find a replacement to cover the hours during which the employee is using PSL.

Termination of Employment: No requirement to pay employee for unused PSL if employment terminates for any reason. If employee is rehired within 12 months, accrued but unused PSL is reinstated.

Employer Prohibitions: Employer may not discriminate or retaliate against an employee for employee’s exercise of rights under the PSL law, including making a complaint or because employee has instituted or is about to institute a PSL proceeding or because employee has testified or is about to testify in any such proceeded. Employer who violates this provision may be guilty of a gross misdemeanor.

An employer may not have a policy that counts the use of PSL as an absence that may lead to or result in discipline or discharge.

Enforcement: By both private right of action or by complaint to the state Department of Labor and Industries. This department must adopt and implement rules to carry out and enforce the PSL law.

Relationship to Other Laws/Agreements:

PSL law establishes “minimum standards” and is in addition to any other legal requirements

Step 4: Unique Provisions

A rule of construction: The provisions of this act are to be liberally construed to effectuate its intent, policies and purposes.

An anti-preemption provision: Local jurisdictions are not precluded from enacting additional local fair labor standards that are more favorable to employees, including more generous PSL requirements.