Mandatory Sick Leave

EMPLOYERS AND EMPLOYEES—Mandatory Sick Leave

1.         Employees who fall within the definition of “employee” for minimum wage purposes are entitled to paid sick leave under RCW 49.46.200-.210.

2.         Effective January 1, 2018, employees who had worked for the employer in question for at least 90 days became entitled to use sick leave.

3.         Under RCW 49.46.210 and WAC 296-128-620, employers are required to carry over up to 40 hours of unused paid sick leave during the following year, whether that leave is “front-loaded” or “accrued.”

December 5, 2018

Dear Senator King:

            By letter previously acknowledged, you have requested our opinion on the following questions:

            1.          Which employees are entitled to paid sick leave under RCW 49.46.200-.210?

            2.         By what date in 2018 must employers allow employees to use accrued and/or front-loaded paid sick leave?

            3.         Do RCW 49.46.210(1)(j) and WAC 296-128-620(4)-(5) require employers to carry over up to 40 hours of front-loaded, unused paid sick leave to the following year?

BRIEF ANSWERS

            1.         Employees who fall within the definition of an “employee” in the Minimum Wage Requirements and Labor Standards Act, as set forth in RCW 49.46.010(3), are entitled to paid sick leave under RCW 49.46.200-.210.

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            2.         Effective January 1, 2018, employees working for the employer in question on or before October 2, 2017, are entitled to use any accrued and/or front-loaded paid sick leave.

            3.         Yes. Regardless of whether an employer opts to provide paid sick leave via the accrual method or the front-loading method, an employee is entitled to carry over up to 40 hours of unused paid sick leave to the following year.

ANALYSIS

1.         Which employees are entitled to paid sick leave under RCW 49.46.200-.210?

            On November 8, 2016, Washington voters approved Initiative 1433. Initiative 1433 increased the state minimum wage and required employers to provide employees with paid sick leave. Laws of 2017, ch. 2. The provisions of the initiative relating to paid sick leave are codified within the Minimum Wage Requirements and Labor Standards Act, RCW 49.46.

            Effective January 1, 2018, employers were required to provide “employees” with paid sick leave. RCW 49.46.210(1). You have asked who is considered an “employee” within the meaning of RCW 49.46.210. This particular statute does not define the term “employee.” Additionally, Initiative 1433 did not define “employee.”

            Although Initiative 1433 did not include a definition of “employee,” it explicitly stated that the new provisions regarding sick leave were to be “new sections to chapter 49.46 RCW[.]” Laws of 2017, ch. 2. RCW 49.46.010 contains definitions for the entire chapter. Among those definitions is a definition of “employee,” which also includes a number of exemptions from that definition. RCW 49.46.010(3)(a)-(p). As the paid sick leave laws are contained within the chapter and the definitional statute explicitly states it applies to the entire chapter, a court would determine the definition of employee set forth in RCW 49.46.010(3) (including the exemptions) is the definition of employee for purposes of RCW 49.46.210. See 1A Norman B. Singer & J.D. Shambie Singer, Statutes and Statutory Construction § 22:35 (7th ed. 2009) (applying the rule that statutes are read in context).

            We believe this statutory language is unambiguous on this point, so there is no need to look any further. TracFone Wireless, Inc. v. Dep’t of Revenue, 170 Wn.2d 273, 281, 242 P.3d 810 (2010). But our conclusion about the definition of “employee” is consistent with the Department of Labor and Industries’ (L&I) interpretation. Initiative 1433 specifically granted L&I the authority and responsibility to “adopt and implement rules” regarding paid sick leave. Laws of 2017, ch. 2, § 10. In accordance with this authority, L&I promulgated regulations. See WAC 296-128-600 to -760. These regulations specify that in relation to paid sick leave requirements, the term “‘employee’ has the same meaning as RCW 49.46.010(3).” WAC 296-128-600(5); see Armstrong v. State, 91 Wn. App. 530, 536-37, 958 P.2d 1010 (1998) (“where the Legislature has specifically delegated rule-making authority to an agency, the agency’s regulations are presumed valid, and

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only compelling reasons demonstrating that the regulation conflicts with the intent and purpose of the legislation warrant striking down a challenged regulation”).

2.         By what date in 2018 must employers allow employees to use accrued and/or front-loaded paid sick leave?

            Your second question relates to the interplay between the time of the effective date of the paid sick leave laws and the permitted eligibility requirement it contains. Effective January 1, 2018, employers were required to begin providing paid sick leave to their employees. RCW 49.46.210(1). Employees hired on or before that date had to begin accruing sick leave as of that date.  RCW 49.46.210(1); WAC 296-128-620(2) (“Paid sick leave for employees who are employed on or before January 1, 2018, will accrue for all hours worked beginning on January 1, 2018.”). Employers are permitted to place some restrictions on the accrual and use of paid sick leave. For example, RCW 49.46.210(1)(g) permits, but does not mandate, employers to require an employee to be employed for 90 days before the employee is eligible to use accrued paid sick leave.

            Your question has to do with when employees may begin using leave they have earned, not when they begin earning it. You ask whether employers may require employees who were employed for 90 days prior to January 1, 2018, to wait 90 days after January 1 to use sick leave. The plain language of the statute does not support such a reading. The statute provides an employee must be permitted to use accrued paid sick leave “beginning on the ninetieth calendar day after the commencement of his or her employment.” RCW 49.46.210(1)(d) (emphasis added); see WAC 296-128-600(2) (defining “commencement of employment” as the first date an employee is authorized or required to be on duty). The 90-day period is triggered by “commencement of his or her employment,” not the effective date of the statute. Thus, while the initiative does not require employers to provide employees sick leave for hours worked before January 1, 2018, it does require them to allow employees who were hired more than 90 days before January 1, 2018, to use paid sick leave they earn starting on January 1, 2018.

3.         Do RCW 49.46.210(1)(j) and WAC 296-128-620(4)-(5) require employers to carry over up to 40 hours of front-loaded, unused paid sick leave to the following year?

            Employers have two options for complying with the paid sick leave accrual requirements. The first is to award employees paid sick leave based on the actual number of hours worked at a minimum ratio of one hour of paid sick leave for every forty hours worked. RCW 49.46.210(1)(a). The second option is to estimate the amount of paid sick leave an employee would accrue based on the actual number of hours and award the paid sick leave in advance. RCW 49.46.210(1)(a). The statute refers to this second practice as “front-loading” and permits the practice of front-loading as long as it “meets or exceeds the requirements of this section for accrual, use, and carryover of paid sick leave.” RCW 49.46.210(1)(a).

            With respect to carryover requirements, the new law specifies, “[u]nused paid sick leave carries over to the following year, except that an employer is not required to allow an employee to

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carry over paid sick leave in excess of forty hours.” RCW 49.46.210(1)(j). An employer may decide to measure the year based on its fiscal year, a calendar year, “or any other fixed consecutive twelve-month period” that is “used in the ordinary course of the employer’s business for the purpose of calculating wages and benefits,” WAC 296-128-620(6), and may cap the carryover of accrued paid sick leave to forty hours, WAC 296-128-620(5).

            You have asked whether these carryover laws and regulations apply equally to front-loaded leave. By way of illustration, if an employer provided front-loaded leave for its employees at the rate of 60 hours per calendar year and an employee used 30 hours during the year, would the employer have to permit the employee to carry over the remaining 30 hours from the first year plus provide a new 60 hours of front-loaded pay? Based on the language of the statute and regulations, the answer to this hypothetical is “yes.”

            RCW 49.26.210(1)(a) permits an employer to utilize front-loaded paid sick leave only if it meets or exceeds the requirements of the new law for carryover of paid sick leave. The new law specifies that an employer must permit an employee to carry over forty hours of unused paid sick leave. RCW 49.46.210(1)(j). The carryover statute does not differentiate between leave accrued at an hourly rate and front-loaded leave. Furthermore, the amount of leave carried over cannot be credited towards the amount the employer would be required to award in the second year using either an hourly or front-loaded accrual method. WAC 296-128-620(4). An employer therefore must permit an employee who is provided with front-loaded paid sick leave to carry over 40 hours of unused leave to the next year. [1]

            We trust the foregoing will be useful to you.

ROBERT W. FERGUSON
Attorney General

JEFFREY T. EVEN
Deputy Solicitor General