AN ACT Relating to assuring that all workers may take at least forty hours of accrued paid sick or safe leave per year and that workers for employers with more than fifty full-time equivalent employees may take greater amounts of paid leave, excepting only certain occasional Washington workers, workers of employers with four or fewer full-time equivalent employees, and workers in certain new firms; adding a new chapter to Title 49 RCW; and prescribing penalties.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

(1) "Child," "grandparent," "parent," "parent-in-law," and "spouse" have the same meanings as in RCW 49.12.265.

(2) "Department" and "director" have the same meanings as in RCW 49.12.005.

(3) "Domestic violence" has the same meaning as in RCW 26.50.010.

(4)(a) "Employee" means any individual employed by an employer, including individuals employed on a temporary and part-time basis.

(b) An employee is a "covered employee" when the employee performs services in the state. An employee performing services in the state on an occasional basis is a covered employee only if he or she performs more than two hundred forty hours of work in the state in a calendar year. An employee performing services in the state on a temporary basis and supplied by a temporary service, staffing agency, or similar entity, absent a contractual agreement stating otherwise, is a covered employee of the staffing agency or similar entity.

(5)(a) "Employer" has the same meaning as in RCW 49.12.005.

(i) "Tier one employer" means an employer that employs more than four and fewer than fifty full-time equivalents on average per calendar week.

(ii) "Tier two employer" means an employer that employs at least fifty and fewer than two hundred fifty full-time equivalents on average per calendar week.

(iii) "Tier three employer" means an employer that employs two hundred fifty or more full-time equivalents on average per calendar week.

(b) The employer tier for the current year is determined by the average number of full-time equivalents paid per calendar week during the preceding year for any and all weeks during which at least one employee worked for compensation. To determine the number of full-time equivalents, all compensated hours of all employees shall be counted, including part-time employment, temporary employment, employment outside the state, and employment through the services of a staffing agency or similar entity. Separate entities that form an integrated enterprise are a single employer for purposes of determining the employer tier. If an employer did not employ any employees during the previous year, the employer tier is determined based upon the average number of full-time equivalents paid per calendar week during the first ninety calendar days of the current year in which the employer engaged in business.

(6) "Full-time equivalent" means the number of hours worked for compensation that add up to one full-time employee, based either on an eight hour day and a five day week or as full-time is defined, in writing or in practice, by the employer.

(7) "Health care provider" means any person licensed to provide medical or emergency services and any other person as determined by the director to be capable of providing documentation under section 5(4) of this act.

(8) "Sexual assault" has the same meaning as in RCW 70.125.030.

(9) "Sick and safe leave" means hours of paid time provided by an employer for use by a covered employee for absence from work for the purposes specified in section 4 of this act.

(10) "Staffing agency" means any person undertaking with or without compensation to procure opportunities to work or to procure, recruit, refer, or place individuals with an employer or in employment.

(11) "Stalking" has the same meaning as in RCW 9A.46.110.

(i) An employee of a tier one or tier two employer must accrue at least one hour of leave for every forty hours worked.

(ii) An employee of a tier three employer must accrue at least one hour of leave for every thirty hours worked.

(b) An employer may provide paid sick and safe leave in advance of accrual as permitted front loading as long as the front loading meets or exceeds the requirements of this chapter for accrual, use, and carry over of leave.

(2) Sick and safe leave begins to accrue at the commencement of employment, except that an employee is not entitled to begin accruing leave before January 1st of the year following the effective date of this section.

(3) If an employee is exempt from overtime payment under state and federal law: (a) The employee is not entitled to accrue leave for hours worked in excess of forty hours in a work week; and (b) if the employee's normal work week is less than forty hours, leave accrues based on the employee's normal work week.

(4) Unused sick and safe leave carries over to the following year, except that an employer is not required to allow an employee to carry over sick and safe leave in excess of:

(a) Forty hours for a tier one employer;

(b) Fifty-six hours for a tier two employer; or

(c) Subject to subsection (5) of this section, seventy-two hours for a tier three employer.

(5)(a) A tier one or tier two employer with a combined or universal paid leave policy, including but not limited to a paid time off policy, is not required to provide sick and safe leave in addition to the leave provided by that policy if:

(i) Paid leave under the policy may be used for the same purposes and under the same conditions as sick and safe leave may be used under section 4 of this act;

(ii) Paid leave accrues at a rate of at least one hour of leave for every forty hours worked;

(iii) Use of paid leave within any year is limited to no less than the amounts specified for tier one and tier two employers, respectively, in section 4 of this act; and

(iv) Any accrued but unused paid leave may be carried over to the following year. However, this section does not require a tier one or tier two employer to carry over leave in excess of the leave specified in subsection (4)(a) and (b) of this section.

(b) A tier three employer with a combined or universal paid leave policy, including but not limited to a paid time off policy, is not required to provide sick and safe leave in addition to the leave provided by the policy if:

(i) Available paid leave may be used for the same purposes and under the same conditions as sick and safe leave may be used under section 4 of this act;

(ii) Paid leave accrues at a rate of at least one hour of leave for every thirty hours worked;

(iii) Use of paid leave within any year is limited to no less one hundred eight hours; and

(iv) Any accrued but unused paid leave may be carried over to the following year. However, this section does not require a tier three employer to carry over unused leave in excess of one hundred eight hours.

(6) If a covered employee separates from employment and the same employer rehires the employee within seven months of the separation: (a) The employer must reinstate previously accrued and unused sick and safe leave; (b) the employee is entitled to use accrued sick and safe leave immediately upon reemployment if the employee previously had been eligible to use the leave; and (c) the employee accrues additional leave immediately upon reemployment. If a covered employee separates from employment and the same employer rehires the employee more than seven months after the separation, this section does not require the employer to reinstate accrued sick and safe leave and the employee is considered to have newly commenced employment for purposes of sick and safe leave.

(7) This section does not require an employer to provide financial or other reimbursement for accrued and unused sick and safe leave to any employee upon the employee's termination, resignation, retirement, or other separation from employment.

(2) An employer must compensate a covered employee who uses sick and safe leave at the same hourly rate and with the same benefits, including health care benefits, as the employee would have earned during the time the leave is taken. An employer is not required to compensate an employee for lost tips or commissions and compensation is required only for hours that an employee was scheduled to work.

(3) A covered employee may use sick leave for the following reasons:

(a) An absence resulting from an employee's mental or physical illness, injury, or health condition; to accommodate the employee's need for medical diagnosis, care, or treatment of a mental or physical illness, injury, or health condition; or the employee's need for preventive medical care; or

(b) To allow the employee to provide care for a child, grandparent, parent, parent-in-law, or spouse with a mental or physical illness, injury, or health condition; care for a child, grandparent, parent, parent-in-law, or spouse who needs medical diagnosis, care, or treatment of a mental or physical illness, injury, or health condition; or care for a child, grandparent, parent, parent-in-law, or spouse who needs preventive medical care.

(4) A covered employee may use safe leave for the following reasons:

(a) When the employee's place of business has been closed by order of a public official to limit exposure to an infectious agent, biological toxin, or hazardous material; or to accommodate the employee's need to care for a child whose school or place of care has been closed by order of a public official to limit exposure to an infectious agent, biological toxin, or hazardous material; or

(b) For any of the reasons identified in RCW 49.76.030.

(5) An employer is not required to allow an employee to use in excess of the following hours of sick and safe leave in a year:

(a) Forty hours for a tier one employer;

(b) Fifty-six hours for a tier two employer; or

(c) Subject to section 3(5)(b) of this act, seventy-two hours for a tier three employer.

(2) When possible, the request must include the expected duration of the absence. An employer may require an employee to comply with the employer's usual and customary notice and procedural requirements for absences and requesting leave, as long as the requirements do not interfere with the purposes for which the leave is needed. If the leave is foreseeable, the employee must: (a) Make a reasonable effort to schedule the leave in a manner that does not unduly disrupt the operations of the employer; (b) make the request in writing; and (c) make the request at least ten days, or as early as possible, in advance of the leave unless the employer's usual and customary notice requirements provide for less advance notice. If the leave is unforeseeable, the employee must provide notice as soon as practicable and must comply with the employer's usual and customary notice and procedural requirements for absences as long as the requirements do not interfere with the purposes for which the leave is needed.

(3) For employees covered by federal or state overtime requirements, sick and safe leave may be used in hourly increments, or smaller increments if an employer so designates. For employees exempt from state and federal overtime requirements, the employer may make deductions of sick and safe leave in accordance with state and federal law.

(4) An employer may require reasonable documentation for use of more than three consecutive days of sick leave. Documentation signed by a health care provider stating that sick leave is necessary is reasonable documentation. An employer may not require the documentation to explain the nature of the illness, injury, or health condition. The employer and employee must each pay one-half the cost of any out-of-pocket expense incurred by the employee in obtaining the documentation requested by the employer. Out-of-pocket expenses are limited to the costs of services provided by health care providers, services of health care facilities, testing prescribed by health care providers, and transportation to the location where the services are provided.

(5) An employer may require verification for use of more than three consecutive days of safe leave. For leave under section 4(4)(a) of this act, the employer may require verification of a closure order. Notice of the closure order in whatever format the employee received the notice satisfies the verification request. For leave under section 4(4)(b) of this act, the employer may require verification that the employee or employee's family member is a victim of domestic violence, sexual assault, or stalking, and that the leave taken was for one of the purposes under section 4(4)(b) of this act. An employee may satisfy the verification requirement in the same manner as provided in RCW 49.76.040(4) and verification does not waive or diminish the confidential or privileged nature of communications in the same manner as under RCW 49.76.040(4).

(6) Upon mutual consent of the employee and employer, an employee may work additional hours or shifts during the same or next pay period instead of using accrued sick and safe leave for leave taken under this section. An employer may not require the employee to work additional shifts or hours. The employer must comply with any applicable laws regarding overtime pay.

(7) This chapter does not prohibit an employer from establishing a policy under which employees may: (a) Voluntarily exchange assigned hours or trade shifts; or (b) donate unused accrued sick and safe leave to another employee.

(b) This section does not require employers to modify their recordkeeping policies as long as records reasonably indicate accrued and used sick and safe leave. When an issue arises as to the amount of accrued sick and safe leave and the employer does not maintain or retain adequate records or does not allow the department reasonable access to the records, it is presumed that the employer violated this chapter.

(2) Employers shall retain records documenting hours worked by employees and sick and safe leave taken by employees for a period of three years, and shall allow the department access to such records, with appropriate notice and at a mutually agreeable time, to investigate potential violations and to monitor compliance with this chapter.

(3)(a) Except as provided in (b) of this subsection, an employer must maintain the confidentiality of information provided by the employee or others in support of an employee's request for sick or safe leave, including health information and the fact the employee or employee's family member is a victim of domestic violence, sexual assault, or stalking, that the employee has requested or taken leave under this chapter, and any written or oral statement, documentation, record, or corroborating evidence provided by the employee.

(b) Information provided by an employee may be disclosed by an employer only if the disclosure is: (i) Requested or consented to by the employee; (ii) ordered by a court or administrative agency; or (iii) otherwise required by applicable federal or state law.

(a) That covered employees are entitled to sick and safe leave;

(b) Of the amount of sick and safe leave and the terms of its use guaranteed under this chapter;

(c) That retaliation against employees who request or use sick or safe leave is prohibited; and

(d) That an employee has the right to file a complaint or bring a civil action if sick or safe leave as required by this chapter is denied by the employer or the employee is retaliated against for requesting or taking sick or safe leave.

(2) An employer may comply with this section by providing the information in subsection (1) of this section in English and in any language that is the first language spoken by at least five percent of the employer's workforce: (a) On a notice to each of the employer's covered employees; or (b) on a poster displayed in a conspicuous and accessible place in each establishment where the employer's covered employees are employed.

(3) The department must create and make available to employers posters for use under subsection (2) of this section.

(4) The department must provide notice to employers regarding the requirements of this chapter when the department updates information for employers about employment standards requirements.

(a) Exercised rights under section 4 of this act;

(b) Filed or communicated to the employer an intent to file a complaint under section 9 or 11 of this act; or

(c) Participated or assisted, as a witness or otherwise, in another employee's attempt to exercise rights under section 4, 9, or 11 of this act.

(2) Counting use of paid sick and safe leave as an absence that may lead to or result in adverse action against the employee is unlawful retaliation under this section.

(2) Within the first twenty-four months after a tier one or tier two employer's hiring of the employer's first employee, the department may educate and advise the employer and employees but may not investigate or order any other relief.

(a) Damages, including back pay, payment of any sick or safe leave unlawfully withheld, and interest on the damages at the prevailing rate;

(b) If any sick or safe leave was unlawfully withheld, statutory damages of three times the dollar amount of leave withheld, or two hundred fifty dollars, whichever is greater;

(c) If a violation resulted in other harm to the employee or any other person, such as discharge from employment, or otherwise violated the rights of employees or other persons, such as a failure to provide notice to employees or a prohibited act of retaliation, statutory damages of fifty dollars to each employee or person whose rights were violated for each day or portion of each day that the violation occurred or continued;

(d) To compensate the department for the costs of investigating or remedying the violation, not more than fifty dollars for each day or portion of each day and for each person or employee as to whom the violation occurred or continued;

(e) Attorneys' fees and costs; and

(f) Equitable relief, including reinstatement.

(2) In addition to any other remedies, if the director finds that an employer has willfully violated the notice and posting requirements of section 7 of this act, the director may impose a civil penalty not to exceed one hundred twenty-five dollars for the first violation and two hundred fifty dollars for subsequent violations.

(3) A judicial appeal from the director's determination may be taken in accordance with chapter 34.05 RCW, and an aggrieved employee who prevails and a person awarded statutory damages who prevails are entitled to attorneys' fees and costs.

(2) Exhaustion of administrative remedies is not required before filing a civil action.

(3) The remedies in this section are in addition to any common law or other remedies that may be available.

(4) This section does not apply to any violations during the first twenty-four months after a tier one or tier two employer's hiring of the employer's first employee.

(2) Any waiver by an employee of any requirements of this chapter is contrary to public policy and is void and unenforceable.

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