The Nitty Gritty on Seattle’s New Sick & Safe Leave Ordinance

On September 12, 2011, the Seattle City Council unanimously approved Ordinance No. 123698, which created a new chapter in the Seattle Municipal Code (“SMC”).  The new chapter (SMC 14.16), referred to as the (the “Ordinance”), provides minimum requirements for employers with employees who work within the Seattle city limits to provide those employees with paid sick and safe leave.  The Ordinance also establishes penalties, remedies, and enforcement procedures for employers who fail to do so.  The Ordinance goes into effect on September 1, 2012.

The Ordinance is 29 pages long and contains 51 separate sections, some of which contain complex definitions and/or references to other state or federal laws.  Below are a few of the highlights, as well as a link to a “compliance menu” as developed for the Washington Restaurant Association by our Employment law specialists.  The compliance menu is designed to provide an overview of the Ordinance’s requirements to assist with identifying and resolving issues.  The guide is not intended to be, nor should it be used as, a substitute for legal counsel.  So, when in doubt, call your legal professional for advice.

Who Needs to Pay Attention to the Ordinance?

• All employers, regardless of size, who have one or more employees who perform work within the Seattle city limits are covered by some aspects of the Ordinance, such as the anti-retaliation provisions.
• Employers with five (5) or more “full-time equivalent” (“FTE”) employees – regardless of where the employees work – are required to provide paid sick and safe leave to eligible employees.  Employers operating for less than two years are exempted from this requirement.

Which Employees are Covered?

• Employees are covered if they perform full-time, part-time or temporary work within Seattle city limits.  Employees who occasionally work in Seattle are covered if they perform more than 240 hours of work in Seattle within a calendar year.
• The Ordinance applies only to employees; not Independent Contractors.  Note of Caution:  The designation of an individual as an independent contractor or as an employee depends on a variety of factors.  Improperly classifying workers as independent contractors can lead to severe penalties.  Please confer with legal counsel before classifying a worker as an independent contractor. 
• All employees, including employees properly classified as salaried/exempt for purposes of the FLSA or the Washington State Minimum Wage Act, accrue sick/safe leave under the Ordinance.  However, exempt employees do not accrue paid leave for hours worked in excess of 40 hours per week.  Thus, if an exempt employee’s normal work week is 40 hours or more, the employee accrues leave based on a 40-hour work week.  If the exempt employee’s normal work week is less than 40 hours, then the employee accrues leave based on the employee’s normal work week.

What If I Offer Universal Paid Time Off (“PTO”)?

• Employers who have a PTO policy that combines sick and vacation time do not need to provide additional paid sick/safe leave.  However, the PTO policy must provide accrual and the use of paid leave for the same purposes and under the same conditions as the Ordinance.

How is Safe/Sick Leave Paid?

• Employers must pay employees for sick/safe leave at the same hourly rate and with the same benefits (including health care benefits) as during regular work hours.
• Employees are not entitled to lost tips or commissions during use of paid sick/safe leave.

Record-keeping:

• An employee does not need to provide documentation for use of paid sick leave unless the employee is absent for more than three consecutive days.
• Employers are required to provide employees with notice of their rights under this Ordinance, including employees’ rights regarding retaliation and the right to file a complaint or bring a civil action if paid sick/safe leave is denied by the employer.

Again, the Ordinance is 29 pages long and contains 51 separate sections, so the above is meant only to highlight a few key points.  Please feel free to request a copy of the entire “Compliance Menu” from any of our Retail, Hotel & Restaurant team members.