In January 2016, the City Council of Spokane, Washington overrode the mayor’s veto to enact the Earned Sick and Safe Leave Ordinance. Ten months later, in November 2016, Washington State voters approved Initiative 1433, which requires employers statewide to provide paid sick leave. In response to I-1433, the City Council of Spokane amended its ordinance to have it “sunset” upon I-1433’s implementation. Here, I use the PSL-4Step framework to analyze the Spokane ordinance.
Step 1: Does it apply?
Effective Date: The Earned Sick and Safe Leave Ordinance (referred to in this blog as PSL) is effective January 1, 2017 and will “sunset” on December 31, 2017 unless the implementation of Initiative 1433 has been delayed beyond January 1, 2018. If there is a delay in I-1433’s implementation, the Spokane PSL will continue until I-1433 becomes effective.
Any business that received its first registration after the Spokane ordinance was enacted (January 11, 2016) but before January 1, 2017 shall not be subject to the ordinance for a period of one year from the date of the first business registration.
Employer Definition: “Employer” includes every type of business entity or any “person or group of persons” acting in the interest of an employer, having a permanent location in the City of Spokane, and having at least one employee who performs more than 240 hours of work in the City of Spokane. “Employer” does not include federal, state, county or local government employees; any business owned and operated by one person (or one person and his or her spouse) with zero employees; and any federally recognized Indian tribe.
Employee Definition: “Employee” means any person who performs work in the City of Spokane for compensation including part time employees, but does not include occasional employees (those who work fewer than 240 hours per year within Spokane), seasonal (“term of employment expected to last less than one year and which is intermittent or recurs annually”), domestic workers, work-study students, those engaged in “construction work,” and employees who are immediate family members of business owners, or independent contractors.
Step 2: The Benefit
Accrual: One hour of leave for every 30 hours worked within the City of Spokane, beginning the first day of employment. An employer may require that employees complete a probationary period of up to 90 days prior to using accrued leave. An employer may cap accrual and use at 40 hours per year (any fixed consecutive 12 month period used by the employer for wage or benefit calculation) except that employers with fewer than 10 employees may cap accrual and use at 24 hours per year.
Exempt Employees: Are assumed to work 40 hours weekly for accrual unless their normal work week is less than 40 hours, in which case PSL accrues based upon that normal work week.
Rate of Pay: The same rate of pay and with the same benefits as the employee would have received had the employee worked during the leave period except an employer need not pay tips or commissions the employee would have earned during the leave period.
Unused Hours: Shall be carried over to the following year, subject to use limits set forth in “Accrual” section above.
Alternatives to Accrual: An employer may frontload leave hours annually or provide a “combined or universal paid leave program (PTO)” The carryover of unused hours does not apply to an employer who frontloads leave hours.
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 to limit exposure to an infectious agent, biological toxin or hazardous material;
- Reasons due to domestic violence, sexual assault or stalking, provided the absence is to obtain related services, i.e. obtain or assist a family member in obtaining medical attention, services from a domestic violence shelter, rape crisis center or other social services program; mental health counseling; safety planning, temporary or permanently relocating or taking other actions to increase the safety of the employee or employee’s family member; legal or law enforcement assistance.
- Bereavement leave in connection with a family member of the employee.
Minimum Increments of Use: No provision.
Step 3: Common Clauses
Family Member: Spouse, domestic partner, child who is either under 18 years of age or 18 years of age or older and incapable of self-care due to a mental or physical disability, parent or guardian, grandparent, or grandchild.
- Employee notice: “When possible,” an employee’s request for leave “shall include a reasonable estimate of the expected duration of the absence.”
- Employer notice:
- Post in a place commonly accessible to employees the Spokane-provided notice summarizing employees’ and employers’ rights and obligations concerning earned sick and safe leave under this ordinance.
- Provide employees at least quarterly, and upon request, the amount of earned paid sick time used to date in the year and remaining time available.
Termination of Employment: No requirement to pay employee for unused PSL if employment terminates for any reason.
Shift-Swapping: An employer may allow shift-swapping.
Relations to Other Employer Sick Time Policies: Employers may offer “all-purpose” PTO in lieu of PSL provided the PTO policy shall accrue and be available for use in at least the same amounts and for at least the same purposes as is the earned sick and safe leave provided in this ordinance. An employer which provides such PTO need not provide additional PSL. The ordinance encourages polices that are more generous than the requirements of the ordinance.
Relationship to Other Laws/Agreements: PSL shall not affect any other requirement of state or federal law concerning the conditions of employment. This ordinance shall not be construed to be a waiver, limitation or preemption of any right, whether arising under state, federal or local law or regulation or due to the existence of any bona fide collective bargaining agreement covering public sector employees in Washington.
Employer Prohibitions: Employer may not retaliate against any employee covered by this ordinance and may not mispresent its business activities to evade the requirements of the ordinance. “Retaliate” means an employer’s taking an adverse action against an employee because of an employee’s status as a charging party or because of an employee’s exercise of rights established by this ordinance. “Adverse action” means any action taken or threatened by an employer against an employee including, but not limited to, discipline, suspension, discharge, transfer, demotion or denial of promotion.
Payroll Records: Employers must maintain records showing information relating to accrual and use of earned sick time for three years. In any enforcement action, an employer’s failure to maintain such records shall create a rebuttable presumption of a violation of the ordinance.
Enforcement: The Spokane Contract and Business Standards Compliance Office (the “Agency”) shall investigate and make determinations concerning alleged violations of the PSL ordinance. For the calendar year 2017, which may be the law’s entire existence, the Agency’s “enforcement posture” shall be that of informing employers and employees of their rights and obligation sunder this ordinance and providing technical assistance to employers to increase compliance. The City of Spokane’s FAQ’s states that that Agency has the exclusive authority to enforce the ordinance; there is no private right of action in court.
Documentation to Support Need for PSL: No provision.
Ban on Replacement Requirement: No provision.
Effect of Employee’s Transfer or Rehire: No provision.
Effect of Sale of Business: No provision.
Step 4: Unique Provisions
Annual Employer Certification: Every employer must file an annual certification that it is providing earned sick and safe leave in line with the requirements of the ordinance. The certification is online here.
Business Registration Certification: When applying for a new or renewal of a business registration, each applicant or registrant must certify its compliance with this ordinance.
Impact Study: The enforcement Agency shall present findings and data concerning the “fiscal impact” and “public health effectiveness” of this ordinance in one year to a City Council Committee. Given that this ordinance will likely sunset at the end of one year, the purpose of such study is unclear.