Washington PTO Overview
In Washington State, paid time off (PTO) has become an increasingly essential component of the modern workplace. It encompasses various forms of leave, which may include paid time off for vacations, personal matters, extended illnesses, and various family needs. With the changing times, more and more employers are offering paid time off policies, which can serve to promote employee satisfaction and retention. Such policies are also often appealing to job seekers who view PTO as a benefit of employment.
PTO is generally regarded in Washington as any type of paid time away from work that employees can use for virtually any purpose. This would exclude, for example, a paid holiday when the employer requires all employees to stay home from work. Some employers may use PTO to replace sick leave or vacation policies, although in that case, the PTO policy should make clear what the allowed uses can be. In Washington, there is not yet a law mandating employers to provide paid time off or even paid sick leave.
However, several local jurisdictions have such requirements. Seattle has a paid sick leave ordinance that imposed requirements on Seattle employers, regardless of size. Seattle’s law, known as the Paid Sick and Safe Time Ordinance, requires large employers (those with at least 5 full-time employees within Washington State) to provide paid sick leave for use by the employee when , for example, the employee must attend medical treatment for diagnosis or preventative care, or when to care for certain family members.
Seattle’s law also requires large employers to provide paid sick leave at a minimum rate of 1 hour for every 40 hours worked, to accrue at the same pace for all employees. For example, if an employee works less than 240 hours in a calendar year, the employee accrues enough paid sick leave to cover, at least, 10 8-hour shifts.
The sick leave provided under Seattle law cannot be taken, however, for the first 90 days of employment. Between the 91st day of employment and the end of the calendar year, the employee accrues 1 hour of paid sick leave for every 40 hours worked. In Washington State, the breakage of the first 90 days is significant. Once the employee is eligible for the paid sick leave, it will carry over into the next calendar year, but will be capped at 40 hours.
Employers who run a business in Seattle with 5 or more full-time employees in total—regardless of where they are located—must give their employees, who work in Seattle, paid sick leave; or substitute other paid leave, such as vacation leave, as long as the amount of leave, and the terms of use, meets the requirements of the Seattle leave law.
Washington State Paid Sick Leave
Washington’s paid sick leave law applies to businesses larger than eight employees, or those with eight employees in Washington State. Businesses that employ eight or fewer employees are not subject to the law; however, those employees may be subject to their city or county’s sick leave laws.
Washington paid sick leave law states that eligible employees accrue paid sick leave at a rate of one hour of paid leave for every 40 hours worked (only for hours worked within Washington State) with a maximum accrual of 40 hours per calendar year. Simply being employed by a Washington business does not mean a worker is entitled to paid sick leave under Washington’s law. Employees join the eligible class only after their employer has employed them for at least 90 days and they work at least 80 hours within Washington State during that 90-day period. Nonetheless, Washington State paid sick leave does not apply to all businesses; a state fund will pay for the earned sick leave of small businesses.
Employees must be allowed to take paid sick leave for the following reasons: Washington City Paid Sick Leave Even though all Washington businesses must provide Washington paid sick leave to eligible employees, those who employ eight or fewer employees in the state are not subject to the Washington paid sick leave law. Under Seattle, Tacoma, and Spokane’s city ordinances, however, businesses that meet the criterion applicable to the state’s laws must also meet those ordinances. Businesses that meet the Washington paid sick leave law’s criteria but whose employees are located outside of Seattle, Tacoma, or Spokane are not subject to the individual city ordinances. Seattle’s and Tacoma’s paid sick leave ordinances are similar to the state earned sick leave law, but Spokane’s earned sick leave and extended illness leave laws are more expansive. The Spokane ordinances cover all employers in the city limits, regardless of the number of employees in Washington.
FMLA in Washington State
The FMLA is a federal law that provides eligible employees the right to take up to 12 weeks of unpaid leave during a 12-month period to care for a newborn, a newly adopted child, or a newly placed foster child, a seriously ill child, spouse, or parent, or for the employee’s own serious health condition. Employment attorneys handling FMLA claims in Washington state need to know the federal statute very well and also how the statute interacts with the Washington Law Against Discrimination ("WLAD"). In Washington there are two statutes that govern leave: the FMLA and the L&I wage and hour laws. The FMLA is not used that frequently in Washington state.
As an overview, the FMLA applies to mid- to large-sized employers. Generally, the following three threshold requirements must be met before any of the FMLAs protections are triggered:
The law then applies to any "covered employer." Covered employers include all public agencies and private employers with at least 50 employees within 75 miles of the employee’s work site within a 75-mile radius. According to the Department of Labor, US Department of Labor Wage and Hour Division as of 2015, the FMLA applies to approximately 69 percent of the U.S. workforce.
The FMLA does set wage requirements, and the following employees are not eligible to take family and medical leave:
The FMLA has very specific notice requirements, reporting requirements, and proof of eligibility. There are many employer responsibilities under the FMLA, but among them are the following:
Importantly, the FMLA can run concurrently with Washington state L&I leave for work-related injuries. If an employee is on L&I leave for an extended period of time, such as over 30 days, employers should strongly consider sending FMLA notices of eligibility and rights to the employee.
Washington State Paid Family & Medical Leave
Washington’s new paid family and medical leave program began on January 1, 2019. The program allows workers to take time off for family caregiving and medical leave by receiving a salary payment from an insurance program at the state level. The insurance program requires funding through premium contributions from both employees and employers. Employees can obtain paid leave for the birth or adoption of a child, caring for a sick family member, or medical leave due to a personal health condition. The program interacts with Washington’s existing paid sick leave law. Washington paid family and medical leave leave runs concurrently with Washington paid sick leave.
The Washington Family and Medical Leave Insurance Task Force drafted the mandatory statewide program in 2018, intending to allow small, medium and large employers to offer a private paid family and medical leave plan that may qualify as a substitute to the state-run plan. A qualifying private plan must meet Washington’s Family and Medical Leave Insurance criteria and must provide an equivalent benefit.
Subject to certain conditions and exceptions, Washington family and medical leave is available to all employees who meet the eligibility requirements. Employees earn 15 weeks of paid family leave to care for a newborn child or adopted child, or in connection with being a family caregiver. Eligible employees may also take up to 12 weeks of paid medical leave due to an illness or injury, or to care for a family member due to the family caregiver’s pregnancy. An eligible employee may also take paid family leave and paid medical leave concurrently.
In 2020, Washington passed a law creating a social insurance program to provide paid family and medical leave for eligible employees. Employees will be able to take up to 12 weeks of paid family leave to recover from their own health conditions or to care for a sick family member. Employees may also take up to 16 weeks of paid family leave for the birth of a child. Employees may take an additional 4 weeks of family leave to bond with a child after birth or adoption. Coverage becomes available January 1, 2022.
Paid family leave programs guarantee job-protected leave for specified family and medical reasons. Federal law requires employers to provide family leave under the Family & Medical Leave Act (FMLA) and Washington law requires employers to provide job-protected leave under the Washington Family Care Act (WFCA). Washington law does not provide paid leave for pregnancy-related disability. Employers covered under federal law are required to provide unpaid leave for a total of 12 weeks under the FMLA ($0 per week) and local law requires employers in Seattle and Tacoma to provide paid sick leave, with pay ranging from $14.09 to $16.39 per hour. Under many local laws, employees are entitled to 12-40 hours of accrued sick leave per year to care for other family members (including grandparents, grandchildren and siblings); however, time off under a local paid sick leave law is subject to caps and can be taken only if it is available.
Vacation and Other PTO
Generally, in Washington State, vacation days or personal days that are made available to employees under the terms of an employment agreement, policy, or established pattern of conduct, are an earned wage subject to mandatory payout under Washington’s payment of wages law if not used while employed.
Courts have also considered whether vacation and other types of PTO are vacation days or other earned wages for purposes of laws governing terminated employees’ rights to receive all wages due. It has been established under Washington law that an employer’s terms for vacation time earned apply to all employees unless otherwise stated; therefore, the failure to actually take vacation days does not provide employees with any greater right to a payout than that which they had prior to separation from employment. For other types of paid time off (e.g. sick leave), however , the law is not as clear. Among its many ambiguities, the law does not state that all paid time off is necessarily an earned wage, and courts are likely to interpret such laws narrowly by not mandating payouts except for those days that were specifically offered as vacation days as a matter of right or that were formally earned as vacation.
Additionally, while the law is unclear about what happens to accrued vacation or other PTO upon layoff or temporary furlough, time off provided for the employer’s convenience may not be compensated as an earned wage. At-will employment in Washington is generally terminable at any time by either party with or without cause but as an exception to the employment-at-will rule, Washington courts enforce implied employment contracts that provide paid vacation days as earned even where an employer gives no promise of continued employment.
Compliance and Employer Obligations
Employers are responsible for keeping detailed records to verify that they are complying with Washington State law, including compliance with provisions related to the amount of paid time off that is received each pay period; the length of the time that paid time off is maintained; and the number of hours of paid sick and safe time and paid vacation time that is available to an employee to use in any given pay period. Employers must maintain these records for a minimum of five years.
Employers can be penalized for non-compliance in a number of ways. For example, employers face a third degree misdemeanor charge for any failure in granting sick and safe time, through a Tomazewski Case. (RCW 49.46.210) The minimum fine for each violation is $100. The Seattle Municipal Code contains enhanced penalties for non-compliance that are outlined in SMC 14.16.045. These include but are not limited to an award of costs, fines, or civil penalties against the employer that may include an award to employees of treble damages, attorneys’ fees, and litigation costs. An administrative law judge can also order an employer to provide sick and safe time. In the most serious cases of non-compliance, the Director of the Office for Civil Rights can revoke an employer’s business license or terminate a contract with a City department.
The Seattle Office for Civil Rights has the authority to take the lead in drafting rules on PTTO. It also has the authority to create and modify a complaint/intake process for employees. Its responsibility is also to provide education and training materials for employees on PTTO, as well as education and training materials for employers on the law and they can be more compliant with it.
PTO Rights & Resources
Employees in Washington State have rights when it comes to paid time off. These rights are primarily governed by the Washington State Minimum Wage Act, which includes provisions for sick leave, vacation, and other forms of paid time off. Employees best position themselves to enforce their rights related to paid time off when they understand the exact policies that their employer has in place, and do a thorough review of their employer’s employee handbook.
A comprehensive employee handbook will include all of an employee’s employment rights as well as their work obligations . It is illegal in Washington State for an employer to penalize an employee for exercising their legal rights, and as a matter of best practice, employees should not allow an employer to discourage them from pursuing enforcement of their earned paid time off. The Washington State Department of Labor and Industries is available to help employees use their paid time off. If there is a dispute about how much paid time off an employee has, their employer is required to provide documentation that shows their balance.
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