By Megan P. Toth and Erin Dougherty Foley

Seyfarth Synopsis: The Washington State Office of the Attorney General has recently published a Guide outlining pregnant employees’ civil rights under the Washington “Healthy Starts Act,” a law which became effective July 23, 2017.

Under the Healthy Starts Act, employers with at least 15 employees in the state of Washington must provide certain accommodations to pregnant works, regardless of a disability, and the Act provides a list of nine accommodations to be considered, including:

  1. Providing more frequent, longer, or flexible restroom breaks;
  2. Modifying a no food or drink policy;
  3. Providing seating or allowing the employee to sit more frequently if her job requires her to stand;  and
  4. Limiting lifting to 17 pounds or less.
  5. Job restructuring, including a part-time or modified work schedule, job reassignment to a vacant position, or providing or modifying equipment, devices, or an employee’s work station;
  6. Providing for a temporary transfer to a less strenuous or less hazardous position;
  7. Providing assistance with manual labor;
  8. Scheduling flexibility for prenatal visits; and
  9. Any further accommodations the employee may request, which an employer must give reasonable consideration, taking into account any Department of Labor & Industries or other medical documents provided by the employee.

The rececently issued Guide outlines employers’ obligations with regard to the above suggested accommodations, and sets forth employer prohibited acts with regard to pregnancy accommodations under the Act. Specifically, the Guide clarifies that employers must provide accommodations 1-4 above and cannot request medical certification from a health care professional for those accommodations, and employers may request written certification from a health care professional regarding the need for the accommodations in 5–8 above, or for restrictions on lifting less than 17 pounds.

The Guide also outlines “prohibited practices” under the Act, which include: (1) Failing or refusing to accommodate a pregnant employee, unless doing so would impose an “undue hardship,” which is defined as “an action requiring significant difficulty or expense.” (2) Retaliating against a pregnant employee who requests a change to their work environment (3) Denying employment opportunities to an otherwise qualified employee because of their needs, or (4) Requiring a pregnant employee to take leave if an alternative solution could be provided.

Finally, the Guide provides information for employees regarding how to report a violation of their rights under the Act.

So what now? The Guide does not actually change or alter employers’ obligations under the Act with regard to pregnancy accommodations, but rather clarifies and outlines what employers should be doing (since the law was enacted in July 2017). Therefore, employers should review their pregnancy accommodation policies and practices in Washington, and ensure they comply with the Act, as outlined in the Guide.

For more information on this, or any related topic please contact the authors, your Seyfarth attorney, or any member of the Absence Management & Accommodations Team or the Workplace Policies and Handbooks Team.

By Joshua D. Seidman and Tracy M. Billows

Seyfarth Synopsis: As expected, on November 8, 2016, residents in Washington and Arizona voted on and passed the nation’s sixth and seventh statewide mandatory paid sick leave laws.

The 2016 election will go down as one of the most memorable elections in our lifetime. As the country scrambles to prepare for the seemingly inevitable wave of change that will mark at least the next four years, one understated winner last Tuesday was the nation’s recent mandatory paid sick leave wave.

As highlighted in last week’s post, two statewide mandatory paid sick leave (“PSL”) laws were poised for passage during the November 8 election. And pass they did. Voters in both Washington and Arizona passed separate ballot measures on election night that will extend mandatory PSL obligations to employers across both states. Washington and Arizona are now the sixth and seventh states in the country to pass such a law, following Connecticut, California, Massachusetts, Oregon, and Vermont.

The Washington and Arizona laws are currently slated to go into effect on January 1, 2018 and July 1, 2017, respectively. While administrative guidance and state regulations could clarify and adjust employers’ compliance obligations in the coming months, below are some highlights of these two impending laws as of today.

Washington PSL Law

Employers covered by the Washington PSL law must allow employees to accrue one hour of PSL for every 40 hours worked. Employers also must allow 40 hours of earned, unused PSL to carry over at year-end. The approved initiative currently is silent on whether there is any cap on how much PSL employees can ultimately accrue and use in a single year. Employers should keep close watch on whether any such requirements are imposed before January 1, 2018.

Relatedly, the Washington PSL law expressly permits frontloading PSL at the start of a benefit year. However and significantly, frontloading PSL may not get rid of an employer’s year-end carryover obligations. The approved initiative states that frontloading is allowed if it “meets or exceeds the requirements of this section for accrual, use, and carryover of paid sick leave.”

Employees eligible can use Washington PSL for a number of reasons, including (a) their own injury, illness, or health condition, (b) the injury, illness, or health condition of a covered family member, (c) closure of the employee’s place of business or employee’s child’s school or place of care by order of a public official, and (d) certain absences related to domestic violence. Covered family members include, among other relationships, the employee’s children, parents, spouse, registered domestic partner, grandparents, grandchildren, and siblings.

The Washington law also contains a number of other substantive, technical components. These include, among other provisions, (a) employers can mandate that employees provide reasonable notice of a PSL absence, (b) a 90 calendar day usage waiting period for new hires, (c) employers may require employees to verify that PSL was used for an authorized purpose only after an absence exceeding three days, and (d) unused PSL does not need to be cashed out upon separation of employment.

Arizona PSL Law

Unlike the Washington law, the Arizona PSL law determines covered employers’ accrual and usage obligations based on the size of their workforce. Employers with 15 or more employees must allow employees to accrue and use at least 40 hours of PSL per year. The accrual and usage duties drop to 24 hours of PSL per year for smaller employers. The law requires that PSL accrue at least as fast as one hour for every 30 hours worked, regardless of employer size.

The Arizona law notes that earned PSL shall carry over from one year to the next, subject to the above usage cap limitations. However, the law does not clarify whether employers can cap how much unused PSL carries over at year-end. Importantly, Arizona employers can eliminate their year-end carryover obligations if they (a) pay employees for unused PSL at year-end, and (b) provide employees with a lump grant of PSL that is equal to the above amounts (depending on employer size).

Among the protected reasons for using Arizona PSL are (a) employees’ own injury, illness, or health condition, (b) the injury, illness, or health condition of a covered family member, (c) certain public health absences, and (d) certain absences related to domestic violence, sexual violence, abuse, or stalking of the employee or the employee’s covered family member. Covered family members include, among other relationships, any individual related by blood or affinity whose close association with the employee is the equivalent of a family relationship.

Other substantive components of the Arizona PSL law include (a) PSL begins accruing on the later of July 1, 2017 or an employee’s start of employment, (b) there is a 90-day PSL usage waiting period for employees hired after July 1, 2017, (c) PSL must be provided upon employee request, which can be done orally, in writing, electronically, or by other means acceptable to the company, and (d) unused PSL need not be cashed out upon separation of employment.

Employers in Washington and Arizona should continue to monitor developments involving their state’s respective PSL laws, including looking for possible regulations, FAQs, or notices and begin taking steps as soon as possible to ensure that they will be able to achieve full compliance by the July 1, 2017 (Arizona) and January 1, 2018 (Washington) effective dates.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Absence Management & Accommodations Team or the Workplace Policies and Handbooks Team.

By Joshua D. Seidman and Tracy M. Billows

Seyfarth Synopsis: On November 8, 2016, two states — Washington and Arizona — are poised to become the sixth and seventh states in the country to pass a statewide mandatory paid sick leave law.

The noise surrounding the 2016 election’s major party candidates has left the American public full of both tension and hope heading into Election Day.  While many have been focusing on Tweets, video recordings, and alleged scandals, the paid sick leave epidemic that has spread throughout the nation in recent years has quietly infected this year’s election as well.  In particular, both Washington and Arizona have proposed statewide paid sick leave bills on their respective ballots.  When the Election Day dust settles, the country will not only know its Commander in Chief for the next four years, but also whether the number of statewide paid sick leave laws has increased from five to either six or seven.

The 2016 election would not be the first time a statewide paid sick leave law was passed through a ballot initiative.  In 2014, Massachusetts residents voted on and passed the state’s Earned Sick Time Law.

Washington Paid Sick Leave – Initiative Measure No. 1433

  • Paid Sick Leave Accrual, Usage, and Carryover:
    • Accrual Rate:  One hour of paid sick leave for every forty hours worked.
    • Accrual and Usage Caps:  The proposal currently is silent on whether there is any cap on how much paid sick leave employees can ultimately accrue and use in a single year.  Barring any further clarification from the state, if passed, the Washington proposal would be the first paid sick leave law in the country that does not set at least an accrual or usage cap.
    • Frontloading:  While frontloading paid sick time is expressly permitted under the proposed law, it may not get rid of an employer’s year-end carryover obligations.  The proposal states that providing paid sick leave in advance of accrual is permitted if the frontloading “meets or exceeds the requirements of this section for accrual, use, and carryover of paid sick leave.”
    • Carryover of Unused Paid Sick Leave:  Employers would only be required to allow 40 hours of earned, unused paid sick leave to carry over at year-end.
  • Reasons for Use:  Employees would be able to use earned paid sick leave for a number of reasons, including (a) their own injury, illness, or health condition, (b) the injury, illness, or health condition of a covered family member, (c) closure of the employee’s place of business or employee’s child’s school or place of care by order of a public official, and (d) certain absences related to domestic violence as set forth under the state’s Domestic Violence Leave law.  Covered family members would include, among other relationships, the employee’s children, parents, spouse, registered domestic partner, grandparents, grandchildren, and siblings.

Arizona Proposed Fair Wages and Health Families Act – Proposition 206

  • Paid Sick Leave Accrual, Usage, and Carryover:
    • Accrual Rate and Cap:  (a) Employers with 15 or more employees would be required to allow paid sick leave to accrue at least as fast as one hour for every 30 hours worked, up to 40 hours per year; (b) While the accrual rate remains the same for smaller employers, such employers would only be obligated to allow employees to accrue up to 24 hours of paid sick leave per year.
    • Usage Cap:  (a) Employers with 15 or more employees – 40 hours per year; (b) Employers with fewer than 15 employees – 24 hours per year.
    • Carryover:  The proposal states that earned paid sick time shall carry over from one year to the next, subject to the above usage cap limitations.  It is unclear from the current proposal if employers would be allowed to set a cap on how much unused sick time carries over at year-end.
    • Frontloading:  Employers would be able to get rid of their year-end carryover obligations if they (a) pay employees for unused paid sick leave at year-end, and (b) provide employees with a lump grant of sick time that is equal to the above amounts (depending on employer size).
  • Reasons for Use:  Employees would be able to use earned paid sick leave for a number of reasons, including (a) their own injury, illness, or health condition, (b) the injury, illness, or health condition of a covered family member, (c) closure of the employee’s place of business or employee’s child’s school or place of care by order of a public official, (d) care of the employee or a covered family member when it has been determined by health authorities that the individual’s presence in the community may jeopardize the health of others due to exposure to a communicable disease, and (e) certain absences related to domestic violence, sexual violence, abuse, or stalking of the employee or the employee’s covered family member.
  • Covered family members would include, among other relationships, an employee’s child (regardless of age), parent, spouse or registered domestic partner, grandparent, grandchild, and sibling, and any other individual related by blood or affinity whose close association with the employee is the equivalent of a family relationship.

Employers in Washington and Arizona should continue to track whether their states’ respective paid sick leave initiatives have passed.  And, if either initiative is approved, employers should begin taking steps as soon as possible to ensure that they will be able to achieve full compliance by the July 1, 2017 (Arizona) and January 1, 2018 (Washington) effective dates.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Absence Management & Accommodations Team or the Workplace Policies and Handbooks Team.