WSR 17-14-113
PROPOSED RULES
DEPARTMENT OF
LABOR AND INDUSTRIES
[Filed July 5, 2017, 11:46 a.m.]
Original Notice.
Preproposal statement of inquiry was filed as WSR 17-02-082.
Title of Rule and Other Identifying Information: Rules implementing Initiative 1433, An Act Related to Fair Labor Standards – Paid Sick Leave and Retaliation; chapter 296-128 WAC, Minimum wages. Amending WAC 296-128-010 Records required, 296-128-055 Definition, 296-128-060 Application for certificate, 296-128-065 Conditions for granting certificate, 296-128-070 Issuance of certificate and 296-128-075 Terms of certificate; and new WAC 296-128-600 Definitions, 296-128-610 Requirements for a written policy—Duty of the department to provide sample policies, 296-128-620 Paid sick leave accrual, 296-128-630 Paid sick leave usage, 296-128-640 Variance from required increments of paid sick leave usage, 296-128-650 Reasonable notice, 296-128-660 Verification for absences exceeding three days, 296-128-670 Rate of pay for use of paid sick leave, 296-128-680 Payment of paid sick leave, 296-128-690 Separation and reinstatement of accrued paid sick leave upon rehire, 296-128-700 Paid time off (PTO) programs, 296-128-710 Shared leave, 296-128-720 Shift swapping, 296-128-730 Frontloading, 296-128-740 Third-party administrators, 296-128-750 Employee use of paid sick leave for unauthorized purposes, 296-128-760 Employer notification and reporting to employees, and 296-128-770 Retaliation.
Hearing Location(s): Department of Labor and Industries (L&I) Headquarters, Auditorium, 7273 Linderson Way S.W., Tumwater, WA 98501, on August 8, 2017, at 10:00 a.m.; at the Spokane CenterPlace, Auditorium, 2426 North Discovery Place, Spokane Valley, WA 99216, on August 16, 2017, at 10:00 a.m.; at Columbia Basin Community College, L102, Building L, 2600 North 20th Avenue, Pasco, WA 99301, on August 17, 2017, at 10:00 a.m.; and at the Xfinity Center, Edward D. Hansen Conference Center, Ballroom 3 South, 2000 Hewitt Avenue, Suite 200, Everett, WA 98201, on August 29, 2017, at 10:00 a.m.
Date of Intended Adoption: October 17, 2017.
Submit Written Comments to: Allison Drake, P.O. Box 44400, Olympia, WA 98504-4400, email i1433Rules@Lni.wa.gov, fax (360) 902-5300, by September 1, 2017, at 11:59 p.m.
Assistance for Persons with Disabilities: Contact office of information and assistance by August 7, 2017, TTY (360) 902-5797 or (360) 902-5304.
Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: This rule making is being proposed to implement Initiative 1433, An Act Relating to Fair Labor Standards, which requires employers provide paid sick leave to employees. These proposed rules will:
•
Set parameters for the directives in chapter 49.46 RCW.
•
Create definitions and descriptions for paid sick leave pertaining to: Written policies, accrual, usage, variance from required increments of use, reasonable notice, verification for absences exceeding three days, rate of pay, payment of paid sick leave, separation and reinstatement of accrued paid sick leave upon rehire, PTO programs, shared leave, shift swapping, frontloading, third party administrators, employee use of paid sick leave for unauthorized purposes, employer notification and reporting to employees, and retaliation.
In addition to the paid sick leave proposed rules, amendments are being proposed to rules updating outdated language concerning people with disabilities to "People-first" language.
Enforcement of the retaliation and enforcement directives related to the implementation of Initiative 1433 are being addressed in a separate rule making.
Reasons Supporting Proposal: The department must implement the will of the people as passed by Initiative 1433.
Statutory Authority for Adoption: RCW 49.46.810.
Rule is not necessitated by federal law, federal or state court decision.
Agency Comments or Recommendations, if any, as to Statutory Language, Implementation, Enforcement, and Fiscal Matters: The proposed rule language describes the specifics of the statutes directly, but several rules are department interpretations of the statutes. The department, in consultation with worker and employer representatives, will develop policy templates, along with policy examples employers may use to comply with the new rules.
Name of Proponent: Department of labor and industries, as directed by Initiative 1433, governmental.
Name of Agency Personnel Responsible for Drafting: Allison Drake, Tumwater, Washington, (360) 902-5304; Implementation: Elizabeth Smith, Tumwater, Washington, (360) 902-5933; and Enforcement: Ernie LaPalm, Tumwater, Washington, (360) 902-9140.
A small business economic impact statement has been prepared under chapter 19.85 RCW.
Small Business Economic Impact Statement
Rules implementing Initiative 1433, An Act Related to Fair Labor Standards – Paid Sick Leave and Retaliation, chapter 296-128 WAC, Minimum wages.
Date: July 5, 2017.
1. Describe the proposed rule, including: A brief history of the issue; an explanation of why the proposed rule is needed; and a brief description of the amendments in this proposal that would impose new or additional costs on affected businesses, including small businesses.
In November 2016, Washington voters approved Initiative Measure No. 1433 (I-1433), a ballot measuring [measure] concerning labor standards. I-1433 was codified under chapter 49.46 RCW.
I-1433, in part, requires employers provide their employees paid sick leave, the purpose of which is to promote public health, family stability and economic security, balanced with the demands of the workplace. I-1433 includes: Provisions addressing the accrual and carry over of paid sick leave, defines what paid sick [leave] can be used for and when, and prohibits employers from retaliating against employees for exercising any rights provided by chapter 49.46 RCW.
I-1433 directed L&I to adopt and implement rules to carry out and enforce the initiative, including but not limited to procedures for notification to employees and reporting regarding sick leave, and protecting employees from retaliation for the lawful use of sick leave and exercising other rights under chapter 49.46 RCW.
The changes in the proposed rules that impose new or additional costs on businesses are: Amendments to the recordkeeping requirements; requirements related to employee notification and reporting; and requirements related to the paid sick leave increments of use.
2. Identify which businesses are required to comply with the proposed rule using the North American Industry Classification System (NAICS).
The initiative applies to all businesses that have paid employee(s) in Washington state covered under chapter 49.46 RCW. The proposed rule is intended to implement requirements of the initiative. Therefore, all businesses with employees covered under chapter 49.46 RCW are required to comply with the proposed rule. Table 1 below shows the total number of establishments and employment by each industry (2016Q1, ESD). This data does not distinguish between employees covered under chapter 49.46 RCW and those currently not covered.
Table 1: Establishments and employment by industry
(excluding nonemployers)
NAICS
Industry
# of establishments
Total employment
11
Agriculture, forestry, fishing and hunting
5,749
87,020
21
Mining
145
2,268
23
Construction
18,288
158,058
31, 32, 33
Manufacturing
6,908
299,917
22
Utilities
572
18,662
42
Wholesale trade
12,421
128,622
44, 45
Retail trade
18,842
352,976
48, 49
Transportation and warehousing
4,708
119,900
51
Information
3,630
121,833
52
Finance and insurance
8,010
92,114
53
Real estate and rental and leasing
7,314
49,989
54
Professional and technical services
20,465
193,301
55
Management of companies and enterprises
664
43,032
56
Administrative and waste services
9,803
156,907
61
Educational services
3,321
278,421
62
Health care and social assistance
48,152
449,342
71
Arts, entertainment and recreation
2,600
67,945
72
Accommodation and food services
15,240
253,471
81
Other services, except public administration
17,196
91,832
92
Public administration
1,938
157,734
3. Identify and analyze the probable costs to comply with the proposed rule.
The probable costs analyzed included both the following required and optional elements of the proposed rule. The proposed rule changes determined to be exempt from the cost-benefit analysis (CBA) requirement were not considered1.
1 See Chapter 1 of CBA.
Require[d] elements of the proposed rule:
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WAC 296-128-010 Recordkeeping.
Rule Overview: The existing recordkeeping requirements of chapter 49.46 RCW are amended to incorporate payroll or other records documenting sick leave accrued, used, and paid to employees. Employers must keep records that show, for each employee, paid sick leave accruals each month, and any unused paid sick leave available for use; paid sick leave reductions each month, and the date of the employee's commencement of employment.
Costs to be Estimated: The costs associated with the recordkeeping requirements created by the initiative.
•
WAC 296-128-630 Paid sick leave usage.
Rule Overview: Employers must allow employees to use paid sick leave in increments consistent with the employer's payroll system and practices, not to exceed one hour. For example, if an employer's normal practice is to track increments of work for the purposes of compensation in fifteen-minute increments, then an employer must allow employees to use paid sick leave in fifteen minute increments.
Costs to be Estimated: The administrative cost of processing leave usage in increments of one hour or less. When employees use paid sick leave, some employers may experience costs associated with covering the employee's absence. While L&I recognizes there are costs to employers, these costs are attributable to the initiative which created the employee's right to use paid sick leave and are not considered in this analysis. Additionally, many employers will not automatically cover an employee's absence by calling another employee to fill in. There are an array of options available to employers to cover an employee's absence while on paid sick leave that do not cause any increased cost, including, but not limited to rearranging rest and meal breaks, working with fewer employees, or filling in themselves. For purposes of estimating costs associated with the rule in general, it would be difficult to predict how employers will address this issue2.
2 According to a study of New York City's paid sick leave law, eighty-four percent of employers reported covering short absences of nonexempt employees taking sick leave by temporarily assigning work to other workers, allowing employees to swap shifts, putting the work on hold, or having some employees work from home while out sick. (Center Economic and Policy Research (2016), "No Big Deal: The Impact of New York City's Paid Sick Days Law on Employers," available at http://cepr.net/images/stories/reports/nyc-paid-sick-days-2016-09.pdf).
During the rule development process, some employers commented that while they normally track work in small increments, including five minutes or less, allowing leave in those increments would be infeasible. Similarly, some employers commented one hour increments would be infeasible. To mitigate the costs in these situations, L&I added the variance provision in WAC 296-128-640.
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WAC 296-128-760 Employer notification and reporting to employees.
Rule Overview: Employers must notify each employee of their entitlement to paid sick leave, the rate of accrual, the authorized purposes for use of paid sick leave, and that employers may not retaliate against employees for the lawful use of paid sick leave and other rights provided under chapter 49.46 RCW. Employers can decide whether the notification is written or electronic. A one time notification must be given to existing employees no later than March 1, 2018. New hires are notified on the date of commencement of their employment. Employers must report to employees about their leave balances each month, but only if they have worked since the prior notification.
Costs to be Estimated: The administrative costs associated with providing initial notice to existing employees, providing notice to new hires, and satisfying the ongoing monthly reporting requirements.
Optional elements of the proposed rule:
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WAC 296-128-640 Variance from required increments of paid sick leave usage.
Rule Overview: This rule permits L&I to grant a variance from the increment of use requirement if an employer can show "good cause" that providing paid sick leave in increments consistent with the employer's payroll system and practices, not to exceed one hour, is infeasible, and the variance does not affect the health, safety, or welfare of employees. Variances may be sought by submitting a written application. Affected employees are given notice of the employer's request for variance and have an opportunity to be heard. L&I will grant a variance if good cause is shown and will issue an order detailing the terms of the variance. Variance determinations are subject to reconsideration. L&I may issue temporary variances. The terms of any variance granted must be made readily available to employees.
Costs to be Estimated: The administrative costs associated with completing the application for a variance, communicating with employees about the variance request and their right to participate in L&I's determination, and costs associated with presenting any additional information, if requested, as part of the process.
•
WAC 296-128-650 Reasonable notice.
Rule Overview: The initiative permits employers to require reasonable notice of an absence from work for the use of paid sick leave for an authorized purpose. If the need for leave is foreseeable, the employer may, but is not required to, ask for advance notice from the employee. Employers may ask for less notice, but if the employer does not have a policy on the number of days for advance notice, an employee must provide at least ten days notice, or as early as practicable, to use paid sick leave.
When the need for paid sick leave is unforeseeable, an employer may ask for notice as soon as possible before the scheduled start of a shift, unless it is not practicable to do so. Another person can provide notice to the employer on the employee's behalf. Notice requirements must comply with the Domestic Violence Leave Act, must be part of a written policy or collective bargaining agreement, and must be provided to employees before notice is required for the use of paid sick leave.
Costs to be Estimated: Administrative costs associated with creating a written policy for employees to provide advance notice for the use of paid sick leave.
•
WAC 296-128-660 Verification for absences exceeding three days.
Rule Overview: The rule allows, but does not require, employers to ask employees to verify any absence exceeding three days is for an authorized purpose. As part of the employer's verification requirement, an employer may require an employee to provide verification from a health care provider. If an employer has a notification policy, the policy must be in writing and provided to the employee in advance of requiring the employee to provide verification. If an employer creates a verification policy requiring an employee to provide verification from a health care provider, employers are prohibited from asking about the nature of the condition for which leave is used, and must keep any medical information obtained confidential.
Employer verification requirements may not result in an unreasonable burden or expense on employees. If an employee believes an employer's verification requirements result in an unreasonable burden or expense, employees must be allowed to provide an oral or written explanation to their employer asserting that the leave was for an authorized purpose and how the verification requirement results in an unreasonable burden or expense. An employer must consider the employee's explanation and make a reasonable effort to identify alternative methods for the employee to meet the employer's verification requirement, including mitigating any out-of-pocket expenses associated with meeting medical verification requirements or accepting the employee's oral or written explanation as a form of verification that meets the employer's requirements. If the employer and employee are unable to resolve a disagreement, either may consult with L&I, and the employee can file a complaint. If an employer does have a verification requirement, such employee verification must be provided within a ten day calendar period after the leave begins, and verification requirements must be in a written policy made readily available to employees before verification requirements are requested by employers. Verification requirements must be consistent with the Domestic Violence Leave Act and the Family and Medical Leave Act.
Costs to be Estimated: Administrative costs associated with creating a policy explaining notification requirements to employees, making the policy readily available to employees, and administering the policy.
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WAC 296-128-700 Shared Leave.
Rule Overview: This rule allows, but does not require, employers to establish a shared paid sick leave program in which an employee may choose to donate paid sick leave to a coworker. The employer must have a written policy or a collective bargaining agreement describing the shared leave program. The employer must notify employees of the policy and make the information readily available to employees.
Costs to be Estimated: Costs associated with developing a written program, notifying employees, and making the information available to employees.
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WAC 296-128-730 Frontloading.
Rule Overview: The rule allows, but does not require, employers to establish processes that provide employees to use paid sick leave before it has accrued. If an employer chooses to provide employees with paid sick leave to use before they have accrued it, the employer must have a written policy or collective bargaining agreement describing the program to employees and explaining how balances are administered before the employee can use the frontloaded leave. Employees must be notified about their paid sick leave available for use not less than monthly.
Costs to be Estimated: Costs associated with developing a written policy and creating processes to frontload leave and to notify employees about balances.
As detailed in Chapter 2 of L&I's CBA, the following is the summary of the annualized costs of the required and optional rule amendments.
Table 2: Summary of the annualized costs for small businesses and large businesses for each required and optional proposed rule element
Cost component
Required or optional
Small (1-49 employees)
10% of largest (250+ employees)
Costs of notification, monthly reporting and recordkeeping requirements.
Required
$37,625,242 - $43,023,370
$2,403 - $4,807
Costs of increment requirement for PSL usage and variance application.
Required
$6,747,607 - $7,416,332
$585,574 - $585,822
All Required
$44,372,848 - $50,439,703
 
Costs of verification for absences exceeding three days.
Optional
$1,175,275 - $1,936,893
$108,090 - $177,753
Costs of creating and updating a comprehensive PSL written policy.
Optional
$10,838,895 - $27,853,718
$2,403 - $6,009
Recordkeeping costs for optional programs.
Optional
$373,052 - $1,492,207
10% of Largest (250+ employees)
All Optional
$12,387,221 - $31,282,818
 
For more information, see Chapter 2 of the CBA, which includes our cost-impact analysis for the proposed rule.
The CBA is available on the L&I web site or it may be obtained by email i1433Rules@Lni.wa.gov, phone Allison Drake at (360) 902-5304.
4. Determine whether the proposed rule may impose a disproportionate impact on small businesses compared to the ten percent of businesses that are the largest businesses required to comply with the proposed rule.
Section 3 provides the details on the estimated total costs of each identified rule amendment. To determine whether or not the proposed rule may have a disproportionate impact on small businesses, L&I also is required to derive and compare the unit cost for small businesses (with fifty or fewer employees) and for largest businesses as well. Due to data limitations, we choose the group of businesses with one to forty-nine employees as a representative of small business, and those with two hundred fifty and more employees as a representative of largest businesses that are required to comply with the rule. In addition, cost-per-employee is most commonly used as the basis for this comparison. Employment data is readily available for each different firm size. For these reasons, this measure is also used here for comparison purpose[s].
Based on the total costs analyzed in the previous section for these two groups and their corresponding employment, L&I estimates that the per-employee cost for the required elements of the proposed rule for small businesses is approximately 6.6 to 7.6 times the unit cost for the ten percent of the largest businesses. For both the required and optional elements of the proposed rule, the per-employee cost for small businesses is approximately 6.5 to 10.3 times the unit cost for the ten percent of the largest businesses. Therefore, L&I concludes this proposed rule will impose disproportionate impact on small businesses.
Table 2: Cost comparison between small businesses and large businesses
Firm Size
 
Total costs per year
Per-employee
 cost per year
Small (1-49 employees)
Number of businesses = 196,148
Total employment = 1,222,866
Required costs
$44,372,848 -$50,439,703
$36.29 - $41.25
Total required and optional costs
$56,760,070 - $81,722,521
$46.42 - $66.83
10% of Largest (250+ employees)
Number of businesses = 135
Total employment = 108,159
Required costs
$587,978 –
$590,629
$5.44 - $5.46
Total required and optional costs
$698,772 –
$775,593
$6.46 - $7.17
5. If the proposed rule is likely to impose a disproportionate impact on small businesses, identify the steps taken to reduce the costs of the rule on small businesses.
L&I is taking the following steps to reduce the costs of the rule on small businesses:
5.1 As described below, L&I added language to the rule specifically to mitigate cost where possible.
•
WAC 296-128-630 Paid sick leave usage and 296-128-640 Variance from required increments of paid sick leave usage.
Under the proposed rules, employers must allow employees to use paid sick leave in increments consistent with the employer's payroll system and practices, not to exceed one hour. For example, if an employer's normal practice is to track increments of work for the purposes of compensation in fifteen minute increments, then an employer must allow employees to use paid sick leave in fifteen minute increments. During the rule development process, some employers commented that while they normally track work in small increments, including five minutes or less, allowing leave in those increments would be infeasible. Similarly, some employers commented one hour increments would be infeasible. To mitigate the costs in situations, L&I added the variance provisions to address cost mitigation and provide a less burdensome alternative. Additionally, although the variance review process can take sixty days or more under limited circumstances, the process allows for the issuance of a temporary variance where immediate action is necessary. If granted, a temporary variance will remain valid until L&I makes a decision on the variance.
•
Multiple WAC, paid sick leave policies.
The proposed rules do not require employers to have written policies unless employers choose to require employees to give reasonable notice before paid sick leave is used; choose to require employees to provide verification for use of paid sick leave; to establish a shared leave program, or to frontload paid sick leave. Since these are not required elements of the rule, written policies are need[ed] to ensure employees understand how the employer's administration of the optional features of the initiative and rules are carried out. To mitigate any potential costs the policy requirements may create, L&I proposed WAC 296-128-610, providing for sample policies that will meet its standard for compliance with these rules.
•
WAC 296-128-660 Verification for absences exceeding three days.
The initiative states "[a]n employer's requirements for verification may not result in an unreasonable burden or expense on the employee …" Rather than automatically requiring an employer pay all or a part of the costs associated with obtaining medical verification when doing so places an unreasonable burden or expense on the employee, the proposed rule provides the employer and employee with flexibility to identify alternatives for the employee to meet the employer's verification requirement in a manner which does not result in an unreasonable burden or expense on the employee. When an employer requires an employee to provide verification from a medical provider, and the employee asserts that such verification requirement results in an unreasonable burden or expense on the employee, one option an employer may consider is mitigating the employee's out-of-pocket expense.
5.2 L&I will be pursuing other steps to mitgate [mitigate] costs to small business, including:
º
Developing and implementing a robust outreach and education program, small business[es] are informed about what they need to know to comply with the law.
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Developing a standard application form for employers to use to request a variance from required increments of paid sick leave usage.
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Developing a template letter to use for medical verification.
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Reach out to payroll software companies to help develop instructions on how to program the software for Washington's paid sick leave requirements.
º
Consider other mitigation techniques including those suggested by small businesses or small business advocates.
6. Describe how small businesses were involved in the development of the proposed rule.
In order to have rules [in] place before the paid sick leave implementation date of January 1, 2018, L&I began a comprehensive rule-making development process with the public and with stakeholders, which began in January 2017. As part of the process, L&I set up an engagement web site that gave the public an opportunity to review and comment throughout, including small businesses.
An initial public meeting with stakeholders was held, and L&I asked stakeholders to provide feedback on key questions to be covered in the rules. A draft document containing stakeholder input was created and circulated, and stakeholders were able to provide comment on each other's contributions. An initial version of the proposed rules was circulated during April 2017, and a second public meeting was held to discuss the initial version and to obtain stakeholder comment. Thereafter, a second version of the rules was drafted and circulated during May 2017, and a third public meeting was held. Small business employers and organizations representing small businesses were involved in these processes.
7. Identify the estimated number of jobs that will be created or lost as the result of compliance with the proposed rule.
L&I believes that potential job impact is mostly the result of the initiative, which granted employees [the] benefit of paid sick leave. L&I lacks credible information or data to come up with an estimate on how many jobs will be created or lost due to the proposed rule.
A copy of the statement may be obtained by contacting Allison Drake, P.O. Box 44400, Olympia, WA 98504-4400, phone (360) 902-5304, fax (360) 902-5300, email i1433Rules@Lni.wa.gov.
A cost-benefit analysis is required under RCW 34.05.328. A preliminary cost-benefit analysis may be obtained by contacting Allison Drake, P.O. Box 44400, Olympia, WA 98504-4400, phone (360) 902-5304, fax (360) 902-5300, email i1433Rules@Lni.wa.gov.
July 5, 2017
Joel Sacks
Director
AMENDATORY SECTION (Amending Regulation 294.7.001 (part), filed 12/30/60)
WAC 296-128-010 Records required.
For all employees who are subject to RCW 49.46.020, employers shall be required to keep and preserve payroll or other records containing the following information and data with respect to each and every employee to whom said section of said act applies:
(1) Name in full, and on the same record, the employee's identifying symbol or number if such is used in place of name on any time, work, or payroll records. This shall be the same name as that used for Social Security record purposes;
(2) Home address;
(3) Occupation in which employed;
(4) Date of birth if under eighteen;
(5) Time of day and day of week on which the employee's workweek begins. If the employee is part of a workforce or employed in or by an establishment all of whose workers have a workweek beginning at the same time on the same day, a single notation of the time of the day and beginning day of the workweek for the whole workforce or establishment will suffice. If, however, any employee or group of employees has a workweek beginning and ending at a different time, a separate notation shall then be kept for that employee or group of employees;
(6) Hours worked each workday and total hours worked each workweek (for purposes of this section, a "workday" shall be any consecutive twenty-four hours);
(7) Total daily or weekly straight-time earnings or wages; that is, the total earnings or wages due for hours worked during the workday or workweek, including all earnings or wages due during any overtime worked, but exclusive of overtime excess compensation;
(8) Total overtime excess compensation for the workweek; that is, the excess compensation for overtime worked which amount is over and above all straight-time earnings or wages also earned during overtime worked;
(9) Total additions to or deductions from wages paid each pay period. Every employer making additions to or deductions from wages shall also maintain a record of the dates, amounts, and nature of the items which make up the total additions and deductions;
(10) Total wages paid each pay period;
(11) Date of payment and the pay period covered by payment;
(12) Paid sick leave accruals each month, and any unused paid sick leave available for use by an employee;
(13) Paid sick leave reductions each month including, but not limited to: Paid sick leave used by an employee, paid sick leave donated to a co-worker through a shared leave program, or paid sick leave not carried over to the following year ("year" as defined in WAC 296-128-620(6));
(14) The date of commencement of his or her employment, as defined in WAC 296-128-600(2);
(15) Employer may use symbols where names or figures are called for so long as such symbols are uniform and defined.
NEW SECTION
WAC 296-128-600 Definitions.
(1) "Absences exceeding three days" means absences exceeding three consecutive days an employee is scheduled to work. For example, assume an employee is scheduled to work on Mondays, Wednesdays, and Fridays, and then the employee uses paid sick leave for any portion of those three work days in a row. If the employee uses paid sick leave again on the following Monday, the employee would have absences exceeding three days.
(2) "Commencement of his or her employment" means no later than the beginning of the first day on which the employee is authorized or required by the employer to be on duty on the employer's premises or at a prescribed workplace.
(3) "Department" means the department of labor and industries.
(4) "Director" means the director of the department of labor and industries, or the director's authorized representative.
(5) "Employee" has the same meaning as RCW 49.46.010(3).
(6) "Employer" has the same meaning as RCW 49.46.010(4).
(7) "Frontloading" means providing an employee with paid sick leave before it has accrued at the rate required by RCW 49.46.210 (1)(a).
(8) "Health-related reason" means a serious public health concern that could result in bodily injury or exposure to an infectious agent, biological toxin, or hazardous material. Health-related reason does not include closures for inclement weather.
(9) "Hours worked" shall be interpreted in the same manner as WAC 296-126-002(8).
(10) "Normal hourly compensation" means the hourly rate that an employee would have earned for the time during which the employee used paid sick leave. For employees who use paid sick leave for hours that would have been overtime hours if worked, employers are not required to apply overtime standards to an employee's normal hourly compensation. Normal hourly compensation does not include tips, gratuities, service charges, holiday pay, or other premium rates, unless the employer or a collective bargaining agreement allow for such considerations. However, where an employee's normal hourly compensation is a differential rate, meaning a different rate paid for the same work performed under differing conditions (e.g., a night shift), the differential rate is not a premium rate.
(11) "Regular and normal wage" has the same meaning as normal hourly compensation.
(12) "Separation" and "separates from employment" mean the end of the last day an employee is authorized or required by the employer to be on duty on the employer's premises or at a prescribed workplace.
(13) "Verification" means evidence that establishes or confirms that an employee's use of paid sick leave is for an authorized purpose under RCW 49.46.210 (1)(b) and (c).
(14) "Workweek" means a fixed and regularly recurring period of one hundred sixty-eight hours, or seven consecutive twenty-four hour periods. It may begin on any day of the week and any hour of the day, and need not coincide with a calendar week.
NEW SECTION
WAC 296-128-610 Requirements for a written policy—Duty of the department to provide sample policies.
Where these rules set forth requirements for an employer to have a written policy (WAC 296-128-650(3), 296-128-660(2), 296-128-710(2), and 296-128-730(4)), the department shall, in consultation with worker and employer representatives, develop sample policies which meet the department's standard for compliance with these rules. The department shall make such sample policies available on the department's web site.
NEW SECTION
WAC 296-128-620 Paid sick leave accrual.
(1) Employees accrue paid sick leave for all hours worked. An employee must accrue at least one hour of paid sick leave for every forty hours worked as an employee. Employers may provide employees with a more generous paid sick leave accrual rate.
(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. Employees hired after January 1, 2018, begin accruing paid sick leave upon the commencement of his or her employment.
(3) Employers are not required to allow employees to accrue paid sick leave for hours paid when not working. For example, employers are not required to allow employees to accrue paid sick leave during vacation, paid time off, or while using paid sick leave.
(4) Employers must allow employees to carry over at least forty hours of accrued, unused paid sick leave to the following year. If an employee carries over forty hours of unused paid sick leave to the following year, accrual of paid sick leave in the subsequent year would be in addition to the forty hours accrued in the previous year and carried over.
(5) Employers may cap carryover of accrued, unused paid sick leave to the following year at forty hours. Employers may allow for a more generous carryover of accrued, unused paid sick leave to the following year.
(6) "Year," for purposes of this section, means calendar year, fiscal year, benefit year, employment year, or any other fixed consecutive twelve-month period established by an employer policy or a collective bargaining agreement, and used in the ordinary course of the employer's business for the purpose of calculating wages and benefits. Unless otherwise established by the employer, the default definition of "year" is calendar year.
NEW SECTION
WAC 296-128-630 Paid sick leave usage.
(1) An employee is entitled to use paid sick leave for the authorized purposes outlined in RCW 49.46.210 (1)(b) and (c).
(2) An employee is entitled to use accrued, unused paid sick leave beginning on the ninetieth calendar day after the commencement of his or her employment. Employers may allow employees to use accrued, unused paid sick leave prior to the ninetieth calendar day after the commencement of his or her employment.
(3) Beginning on the ninetieth calendar day after the commencement of his or her employment, employers must make accrued paid sick leave available to employees for use in a manner consistent with the employer's established payment interval or leave records management system, not to exceed one month after the date of accrual.
(4) Unless a greater increment is approved by a variance as provided by WAC 296-128-640, employers must allow employees to use paid sick leave in increments consistent with the employer's payroll system and practices, not to exceed one hour. For example, if an employer's normal practice is to track increments of work for the purposes of compensation in fifteen-minute increments, then an employer must allow employees to use paid sick leave in fifteen-minute increments.
NEW SECTION
WAC 296-128-640 Variance from required increments of paid sick leave usage.
(1) The department may grant a variance from the increments required by WAC 296-128-630(4) for "good cause." Good cause means situations where an employer can establish that compliance with the requirements for increments of use are infeasible, and that granting a variance does not have a significant harmful effect on the health, safety, and welfare of the involved employees. The existence of a collective bargaining agreement which sets forth increments of use may be used as a factor in determining good cause for granting a variance from the increments required by WAC 296-128-630(4).
(2) An employer may seek a variance from the requirement to provide employees with paid sick leave in increments greater than the increments required by WAC 296-128-630(4) by submitting a written application to the department. The application must contain the following:
(a) A justification for the variance, which establishes good cause for providing paid sick leave in increments greater than the increments required by WAC 296-128-630(4);
(b) The paid sick leave increments of use being sought;
(c) The group of employees for whom the variance is sought; and
(d) Evidence that the employer provided to the involved employees and, if applicable, to their union representatives, the following:
(i) A copy of the written request for a variance;
(ii) Information about the right of the involved employees and, if applicable, their union representatives, to be heard by the department during the variance application review process;
(iii) Information about the process by which involved employees and, if applicable, their union representatives, may make a written request to the director for reconsideration, subject to the provisions outlined in subsection (7) of this section; and
(iv) The department's address and phone number, or other contact information.
(3) The department must allow the employer, any involved employees and, if applicable, their union representatives, the opportunity for oral or written presentation during the variance application review process whenever circumstances of the particular application warrant it.
(4) No later than sixty days after the date on which the department received the application for a variance, the department must issue a written decision either granting or denying the variance. The department may extend the sixty-day time period by providing advance written notice to the employer and, if applicable, the union representatives of any involved employees, setting forth a reasonable justification for an extension of the sixty-day time period, and specifying the duration of the extension. The employer must provide involved employees with notice about any such extension.
(5) Variances will be granted if the department determines that there is good cause for allowing an employer to provide paid sick leave in increments greater than the increments required by WAC 296-128-630(4). The variance order shall state the following:
(a) The paid sick leave increments of use approved in the variance;
(b) The basis for a finding of good cause;
(c) The group of employees impacted; and
(d) The period of time for which the variance will be valid, not to exceed three years from the date of issuance.
(6) Upon making a determination for issuance of a variance, the department must make notification in writing to the employer and, if applicable, the union representatives of any involved employees. If the variance is denied, the written notification will include a stated basis for the denial.
(7) An employer, involved employee and, if applicable, their union representative, may file with the director a request for reconsideration within fifteen days after receiving notice of the variance determination. The request for reconsideration must set forth the grounds upon which the reconsideration is being made. If reasonable grounds exist, the director may grant such review and, to the extent deemed appropriate, afford all interested parties an opportunity to be heard. If the director grants such review, the written decision of the department will remain in place until the reconsideration process is complete.
(8) Unless subject to the reconsideration process, the director may revoke or terminate the variance order at any time after giving the employer at least thirty days' notice before revoking or terminating the order.
(9) Where immediate action is necessary pending further review by the department, the department may issue a temporary variance. The temporary variance will remain valid until the department determines whether good cause exists for issuing a variance. An employer need not meet the requirement in subsection (2)(d) of this section in order to be granted a temporary variance.
(10) If an employer obtains a variance under these rules, the employer must provide the involved employees with information about the increments of use requirements that apply within fifteen days of receiving notification of such approval from the department. An employer must make this information readily available to all employees.
NEW SECTION
WAC 296-128-650 Reasonable notice.
(1) An employer may require employees to give reasonable notice of an absence from work for the use of paid sick leave for an authorized purpose under RCW 49.46.210 (1)(b). Employers may require employees to comply with the employer's notification policies, as long as such policies do not interfere with an employee's lawful use of paid sick leave.
(a) If the need for paid sick leave is foreseeable, the employer may require advance notice from the employee. Unless the employer allows less advance notice, the employee must provide notice at least ten days, or as early as practicable, in advance of the use of paid sick leave.
(b) If the need for paid sick leave is unforeseeable, the employer may require notice from the employee. The employee must provide notice to the employer as soon as possible before the scheduled start of their shift, unless it is not practicable to do so. In the event it is impracticable for an employee to provide notice to their employer, a person on the employee's behalf may provide notice to the employer.
(2) If an employer requires employees to give reasonable notice of an absence from work for the use of paid sick leave for an authorized purpose under the Domestic Violence Leave Act, chapter 49.76 RCW, any such reasonable notice requirements must comply with the provisions outlined in WAC 296-135-060.
(3) Employers must have a written policy or a collective bargaining agreement outlining any requirements of an employee to give reasonable notice for the use of paid sick leave, and must make notification of such policy or agreement, prior to requiring an employee to provide reasonable notice. An employer must make this information readily available to all employees. If an employer does not require an employee to give reasonable notice for the use of paid sick leave, a written policy is not required.
NEW SECTION
WAC 296-128-660 Verification for absences exceeding three days.
(1) For absences exceeding three days, an employer may require verification that an employee's use of paid sick leave is for an authorized purpose under RCW 49.46.210 (1)(b) and (c).
(2) If an employer requires verification for the use of paid sick leave under RCW 49.46.210 (1)(b) and (c), the employer must have a written policy or a collective bargaining agreement outlining any such requirements. The employer must notify the employee of such policy or agreement, including the employee's right to assert that the verification requirement results in an unreasonable burden or expense on the employee, prior to requiring the employee to provide verification. An employer must make this information readily available to all employees.
(3) If an employer requires an employee to provide verification from a health care provider identifying the need for use of paid sick leave for an authorized purpose under RCW 49.46.210 (1)(b) and (c), the employer must not require that the information provided explain the nature of the condition. If the employer obtains any health information about an employee or an employee's family member, the employer must treat such information in a confidential manner consistent with applicable privacy laws.
(4) Employer-required verification may not result in an unreasonable burden or expense on the employee.
(a) If an employer requires verification, and the employee anticipates that the requirement will result in an unreasonable burden or expense, the employee must be allowed to provide an oral or written explanation to their employer which asserts:
(i) That the employee's use of paid sick leave was for an authorized purpose under RCW 49.46.210 (1)(b) or (c); and
(ii) How the employer's verification requirement creates an unreasonable burden or expense on the employee.
(b) The employer must consider the employee's explanation. Within ten calendar days of the employee providing an explanation to their employer about the existence of an unreasonable burden or expense, the employer must make a reasonable effort to identify and provide alternatives for the employee to meet the employer's verification requirement in a manner which does not result in an unreasonable burden or expense on the employee. A reasonable effort by the employer to identify and provide alternatives could include, but is not limited to:
(i) Accepting the oral or written explanation provided by the employee, as outlined in (a)(i) and (ii) of this subsection, as a form of verification which meets the employer's verification requirement; or
(ii) Mitigating the employee's out-of-pocket expenses associated with obtaining medical verification.
(c) If after the employer considers the employee's explanation, the employer and employee disagree that the employer's verification requirement results in an unreasonable burden or expense on the employee:
(i) The employer and employee may consult with the department regarding the verification requirement; and
(ii) The employee may file a complaint with the department.
(5) If an employer requires verification that the use of paid sick leave is for an authorized purpose under RCW 49.46.210 (1)(b), verification must be provided to the employer within a reasonable time period during or after the leave. For employee use of paid sick leave under RCW 49.46.210 (1)(b), "reasonable time period" is a period of time defined by a written policy or a collective bargaining agreement, but may not be less than ten calendar days following the first day upon which the employee uses paid sick leave.
(6) If an employer requires verification that the use of paid sick leave is for an authorized purpose under the Domestic Violence Leave Act, chapter 49.76 RCW, any such verification requirements must comply with the provisions outlined in WAC 296-135-070.
(7) For use of paid sick leave for purposes authorized under the federal Family and Medical Leave Act (FMLA), an employer may require verification from an employee that complies with the FMLA's certification requirements.
NEW SECTION
WAC 296-128-670 Rate of pay for use of paid sick leave.
(1) For each hour of paid sick leave used, an employee must be paid the greater of the minimum hourly wage rate established by RCW 49.46.020 or their normal hourly compensation.
(2) An employer must calculate an employee's normal hourly compensation using a reasonable calculation based on the hourly rate that an employee would have earned for the time during which the employee used paid sick leave. Examples of reasonable calculations to determine normal hourly compensation include, but are not limited to:
(a) For an employee paid partially or wholly on a commission basis, dividing the total earnings by the total hours worked in the full pay periods in the prior ninety days of employment;
(b) For an employee paid partially or wholly on a piece rate basis, dividing the total earnings by the total hours worked in the most recent workweek in which the employee performed identical or substantially similar work to the work they would have performed had they not used paid sick leave;
(c) For nonexempt employees paid a salary, dividing the annual salary by fifty-two to determine the weekly salary, and then dividing the weekly salary by the employee's normal scheduled hours of work;
(d) For an employee whose hourly rate of pay fluctuates:
(i) Where the employer can identify the hourly rates of pay for which the employee was scheduled to work, a calculation equal to the scheduled hourly rates of pay the employee would have earned during the period in which paid sick leave is used;
(ii) Where the employer cannot identify the hourly rates of pay for which the employee would have earned if the employee worked, a calculation based on the employee's average hourly rate of pay in the current or preceding thirty days, whichever yields the higher hourly rate.
(3) For employees who are scheduled to work a shift of indeterminate length (e.g., a shift that is defined by business needs rather than a specific number of hours), the rate of pay may be calculated by multiplying the employee's normal hourly compensation by the total hours worked by a replacement employee in the same shift, or similarly situated employees who worked that same or similar shift.
(4) An employer must apply a consistent methodology when calculating the normal hourly compensation of similarly situated employees.
NEW SECTION
WAC 296-128-680 Payment of paid sick leave.
Unless verification for absences exceeding three days is required by an employer, the employer must pay paid sick leave to an employee no later than the payday for the pay period in which the paid sick leave was used by the employee. If verification is required by the employer, paid sick leave must be paid to the employee no later than the payday for the pay period during which verification is provided to the employer by the employee.
NEW SECTION
WAC 296-128-690 Separation and reinstatement of accrued paid sick leave upon rehire.
(1) When an employee separates from employment and is rehired within twelve months of separation by the same employer, whether at the same or a different business location of the employer, the employer must comply with the provisions of RCW 49.46.210 (1)(k). If an employee separates from employment, the employer is not required to provide financial or other reimbursement to the employee for accrued, unused paid sick leave at the time of separation.
(2) An employer may choose to reimburse an employee for any portion of their accrued, unused paid sick leave at the time the employee separates from employment.
(a) If an employer chooses to reimburse an employee for any portion of their accrued, unused paid sick leave at the time the employee separates from employment, any such terms for reimbursement must be mutually agreed upon in writing by both the employer and the employee, unless the right to such reimbursement is set forth elsewhere in state law or through a collective bargaining agreement.
(b) If an employee is rehired by the same employer, whether at the same or a different business location of the employer, within twelve months after the date the employee separates from employment, the employer must reinstate the employee's accrued, unused paid sick leave. An employer need not reinstate any hours of paid sick leave previously provided to the employee through financial or other reimbursement at the time of separation, as long as the value of the paid sick leave was established and paid at a rate that was at least equal to the employee's normal hourly compensation.
(3) When an employee separates from employment and the employee is rehired within twelve months of separation by the same employer, whether at the same or a different business location of the employer, an employee who reached the ninetieth calendar day of employment prior to separation shall have their previously accrued, unused paid sick leave balance available for use upon rehire. If the employee did not reach the ninetieth calendar day of employment prior to separation, the previous period of employment must be counted for purposes of determining the date upon which the employee is entitled to use paid sick leave.
(4) Upon rehire, an employer must provide notification to the employee of the amount of accrued, unused paid sick leave available for use by the employee.
(5) If the period of time an employee separates from employment extends into the following year ("year" as defined at WAC 296-128-620(6)), the employer is not required to reinstate more than forty hours of the employee's accrued, unused paid sick leave.
NEW SECTION
WAC 296-128-700 Paid time off (PTO) programs.
(1) Paid time off (PTO) provided to employees by an employer's PTO program (e.g., a program that combines vacation leave, sick leave, or other forms of leave into one pool), created by a written policy or a collective bargaining agreement, satisfies the requirement to provide paid sick leave if the PTO program meets or exceeds the provisions of RCW 49.46.200 and 49.46.210, and all applicable rules, including:
(a) Accrual of PTO leave at a rate of not less than one hour for every forty hours worked as an employee;
(b) Payment for PTO leave at the employee's normal hourly compensation;
(c) Carryover of at least forty hours of accrued, unused PTO leave to the following year ("year" as defined at WAC 296-128-620(6));
(d) Access to use PTO leave for all the purposes authorized under RCW 49.46.210 (1)(b) and (c); and
(e) Employer notification and recordkeeping requirements set forth in WAC 296-128-010 and 296-128-760.
(2) If an employee chooses to use their PTO leave for purposes other than those authorized under RCW 49.46.210 (1)(b) and (c), and the need for use of paid sick leave later arises when no additional PTO leave is available, the employer is not required to provide any additional PTO leave to the employee as long as the employer's PTO program meets or exceeds the provisions of RCW 49.46.200 and 49.46.210, and all applicable rules.
NEW SECTION
WAC 296-128-710 Shared leave.
(1) An employer may establish a shared paid sick leave program in which an employee may choose to donate paid sick leave to a co-worker.
(2) If an employer establishes a shared paid sick leave program, the employer must have a written policy or a collective bargaining agreement which specifies that an employee may donate accrued, unused paid sick leave to a co-worker for purposes authorized under RCW 49.46.210 (1)(b) and (c).
The employer must notify employees of such policy or agreement prior to allowing an employee to donate or use shared paid sick leave. An employer must make this information readily available to all employees.
NEW SECTION
WAC 296-128-720 Shift swapping.
(1) An employer may not require, as a condition of an employee using paid sick leave, that the employee search for or find a replacement worker to cover the hours during which the employee is using paid sick leave.
(2) Upon mutual agreement by the employer and employee(s) involved, an employee may work additional hours or shifts, or trade shifts with another employee, in lieu of using available paid sick leave for missed hours or shifts that qualify for the use of paid sick leave.
NEW SECTION
WAC 296-128-730 Frontloading.
(1) An employer may, but is not required to, frontload paid sick leave to an employee in advance of accrual.
(2) If an employer frontloads paid sick leave, the employer must ensure that such frontloaded paid sick leave complies with the provisions of RCW 49.46.200 and 49.46.210, and all applicable rules.
(3) If an employer frontloads paid sick leave, the employer must do so by using a reasonable calculation, consistent with the accrual requirement set forth under RCW 49.46.210 (1)(a), to determine the amount of paid sick leave the employee would be projected to accrue during the period of time for which paid sick leave is being frontloaded.
(a) If the employer calculates and frontloads, and an employee subsequently uses, an amount of paid sick leave which exceeds the paid sick leave the employee would have otherwise accrued absent frontloading, the employer shall not seek reimbursement from the employee for such paid sick leave used during the course of ongoing employment.
(b) If an employer frontloads paid sick leave to an employee, but such frontloaded paid sick leave is less than the amount the employee was entitled to accrue under RCW 49.46.210 (1)(a), the employer must make such additional amounts of paid sick leave available for use by the employee as soon as practicable, but no later than thirty days after identifying the discrepancy.
(4) The employer must have a written policy or a collective bargaining agreement which addresses the requirements for use of frontloaded paid sick leave. An employer must notify employees of such policy or agreement prior to frontloading an employee paid sick leave, and must make this information readily available to all employees.
(5) An employer may not make a deduction from an employee's final wages for frontloaded paid sick leave used prior to the accrual rate required by RCW 49.46.210 (1)(a), unless there is a specific agreement in place with the employee allowing for such a deduction. Such deductions must also meet the requirements set forth in RCW 49.48.010 and WAC 296-126-025.
NEW SECTION
WAC 296-128-740 Third-party administrators.
(1) Employers may contract with a third-party administrator in order to administer the paid sick leave requirements under RCW 49.46.200 and 49.46.210, and all applicable rules.
(2) Employers are not relieved of their obligations under RCW 49.46.200 and 49.46.210, and all applicable rules, if they elect to contract with a third-party administrator to administer paid sick leave requirements. With the consent of employers, third-party administrators may pool an employee's accrued, unused paid sick leave from multiple employers as long as the accrual rate is at least equal to one hour of paid sick leave for every forty hours worked as an employee. For example, if a group of employers have employees who perform work for various employers at different times, the employers may choose to contract with a third-party administrator to track the hours worked and rate of accrual for paid sick leave for each employee, and pool such accrued, unused paid sick leave for use by the employee when the employee is working for any employers in the same third-party administrator network.
(3) A collective bargaining agreement may outline the provisions for an employer to use a third-party administrator as long as such provisions meet all paid sick leave requirements under RCW 49.46.200 and 49.46.210, and all applicable rules.
NEW SECTION
WAC 296-128-750 Employee use of paid sick leave for unauthorized purposes.
(1) If an employer can demonstrate that an employee's use of paid sick leave was for a purpose not authorized under RCW 49.46.210 (1)(b) and (c), the employer may withhold payment of paid sick leave for such hours, but may not subsequently deduct those hours from an employee's legitimately accrued, unused paid sick leave hours.
(2) If an employer withholds payment for the use of paid sick leave for purposes not authorized under RCW 49.46.210 (1)(b) and (c), the employer must provide notification to the employee. If the employee maintains that the use of paid sick leave was for an authorized purpose, the employee may file a complaint with the department.
NEW SECTION
WAC 296-128-760 Employer notification and reporting to employees.
(1) Employers must notify each employee of their entitlement to paid sick leave, the rate at which the employee will accrue paid sick leave, the authorized purposes under which paid sick leave may be used, and that retaliation by the employer for the employee's lawful use of paid sick leave and other rights provided under chapter 49.46 RCW, and all applicable rules, is prohibited.
(a) Employers must provide such notification in written or electronic form, and must make this information readily available to all employees.
(b) For employees hired on or after January 1, 2018, employers must notify each employee of such rights no later than the commencement of his or her employment. For existing employees as of January 1, 2018, the employer must notify each employee no later than March 1, 2018.
(2) Not less than monthly, employers must provide each employee with written or electronic notification detailing the amount of paid sick leave accrued and the paid sick leave reductions since the last notification, and any unused paid sick leave available for use by the employee. Employers may satisfy the notification requirements by providing this information in regular payroll statements.
(a) Employers are not required to provide monthly notification to an employee if the employee has no hours worked since the last notification.
(b) If an employer chooses to frontload paid sick leave to an employee in advance of accrual:
(i) The employer must make written or electronic notification to an employee no later than the end of the period for which the frontloaded paid sick leave was intended to cover, establishing that the amount of paid sick leave frontloaded to the employee was at least equal to the accrual rate under RCW 49.46.210 (1)(a); and
(ii) The employer is not relieved of their obligation to provide notification, not less than monthly, of the paid sick leave available for use by the employee.
NEW SECTION
WAC 296-128-770 Retaliation.
(1) It is unlawful for an employer to interfere with, restrain, or deny the exercise of any employee right provided under or in connection with chapter 49.46 RCW. This means an employer may not use an employee's exercise of any of the rights provided under chapter 49.46 RCW as a negative factor in any employment action such as evaluation, promotion, or termination, or otherwise subject an employee to discipline for the exercise of any rights provided under chapter 49.46 RCW.
(2) It is unlawful for an employer to adopt or enforce any policy that counts the use of paid sick leave for a purpose authorized under RCW 49.46.210 (1)(b) and (c) as an absence that may lead to or result in discipline by the employer against the employee.
(3) It is unlawful for an employer to take any adverse action against an employee because the employee has exercised their rights provided under chapter 49.46 RCW. Such rights include, but are not limited to: Filing an action, or instituting or causing to be instituted any proceeding under or related to chapter 49.46 RCW; exercising their right to paid sick leave, minimum wage, overtime, tips and gratuities; or testifying or intending to testify in any such proceeding related to any rights provided under chapter 49.46 RCW.
(4) Adverse action means any action taken or threatened by an employer against an employee for their exercise of chapter 49.46 RCW rights, which may include, but is not limited to:
(a) Denying use of, or delaying payment for, paid sick leave, minimum wages, overtime wages, all tips and gratuities, and all service charges, except those service charges itemized as not being payable to the employee or employees servicing the customer;
(b) Terminating, suspending, demoting, or denying a promotion;
(c) Reducing the number of work hours for which the employee is scheduled;
(d) Altering the employee's preexisting work schedule;
(e) Reducing the employee's rate of pay; and
(f) Threatening to take, or taking action, based upon the immigration status of an employee or an employee's family member.
((HANDICAPPED)) WORKERS WITH A DISABILITY
AMENDATORY SECTION (Amending § 2, Regulation 294.6.005, filed 12/30/60)
WAC 296-128-055 Definition.
"((Handicapped)) Worker with a disability" means an individual whose earning capacity is impaired by age or physical or mental deficiency or injury for the work he or she is to perform.
AMENDATORY SECTION (Amending § 3, Regulation 294.6.005, filed 12/30/60)
WAC 296-128-060 Application for certificate.
(1) Application for a certificate authorizing the employment of ((handicapped)) workers with a disability shall be made upon forms made available by the director or ((his)) authorized representatives.
(2) The application shall set forth, among other things, the nature of the disability, a description of the occupation at which the ((handicapped)) worker with a disability is to be employed, and the wage the employer proposes to pay the ((handicapped)) worker with a disability per hour. The nature of the disability must be set out in detail.
(3) The application shall be signed jointly by the employer and the ((handicapped)) worker with a disability for whom such application is being made, except as otherwise authorized by the director or ((his)) an authorized representative.
AMENDATORY SECTION (Amending § 4, Regulation 294.6.005, filed 12/30/60)
WAC 296-128-065 Conditions for granting a certificate.
(1) If the application is in proper form and sets forth facts showing:
(a) A subminimum wage is necessary to prevent curtailment of the ((handicapped worker's)) worker with a disability's opportunities for employment;
(b) The ((handicap)) disability impairs the earning capacity of the worker for the work he or she is to perform, a certificate may be issued.
(2) The director or ((his)) an authorized representative may require the submission of additional information to that shown on the application and may require the ((handicapped)) worker with a disability to take a medical examination where it is deemed necessary in order to determine whether or not the issuance of a certificate is justified.
AMENDATORY SECTION (Amending § 5, Regulation 294.6.005, filed 12/30/60)
WAC 296-128-070 Issuance of certificate.
If the application and other available information indicate that the requirements of this regulation are satisfied, the director or ((his)) an authorized representative shall issue a certificate. Otherwise ((he)) the director or an authorized representative shall deny a certificate. If issued, copies of the certificate shall be mailed to the employer and the ((handicapped)) worker with a disability and if denied, the employer and the ((handicapped)) worker with a disability shall be given written notice of the denial.
AMENDATORY SECTION (Amending § 6, Regulation 294.6.005, filed 12/30/60)
WAC 296-128-075 Terms of certificate.
(1) A certificate shall specify, among other things, the name of the ((handicapped)) worker with a disability, the name of the employer, the occupation in which the ((handicapped)) worker with a disability is to be employed, the authorized subminimum wage rate and the period of time during which such wage rate may be paid.
(2) A certificate shall be effective for a period to be designated by the director or ((his)) an authorized representative and a ((handicapped)) worker with a disability employed under such certificate may be paid subminimum wages only during the effective period of the certificate.
(3) The wage rate set in the certificate shall be fixed at a figure designed to reflect adequately the ((handicapped worker's)) worker with a disability's earning capacity. No wage rate shall be fixed at less than seventy-five percent of the applicable minimum wage under RCW 49.46.020 unless, after investigation a lower rate appears to be clearly justified.
(4) Any money received by a ((handicapped)) worker with a disability by reason of any state or federal pension or compensation program for ((handicapped persons)) workers with a disability shall not be considered as offsetting any part of the wage or remuneration due the ((handicapped)) worker by the employer.
(5) The worker with a disability or trainee shall be paid not less than one and one-half times the regular rate for hours worked in excess of forty in the workweek or eight in the workday.
(6) The terms of any certificate, including the subminimum wage rate specified therein, may be amended by the director or ((his)) an authorized representative upon written notice to the parties concerned, if the facts justify such amendment.