New Legislation Expands Washington's Family Care Act

By Rebecca Shapiro Cohen and Lawton Humphrey
[May 2002]

On March 29, 2002, Governor Locke signed into law several amendments to Washington’s Family Care Act. The new law becomes effective on January 1, 2003, and replaces RCW § 49.12.270. Under the current version of the Family Care Act, employees are allowed to use “accrued sick leave” to care not just for themselves, but also for their sick children under the age of 18. The recent amendments greatly expand the reasons for which an employee can use sick leave or other paid time off, and employers will soon have an obligation to allow paid leave for a number of different circumstances.

Expansion of purposes for which leave can be taken: After January 1, 2003, employees can use sick leave or other paid time off, such as vacation or personal holiday, to care for either a “child of the employee with a health condition that requires treatment or supervision,” or a “spouse, parent, parent-in-law, or grandparent of the employee who has a serious health condition or an emergency condition.” To qualify as a “child,” the person in need of care must be under the age of eighteen or “incapable of self care because of a mental or physical disability.” Biological, adopted, foster, and step children all meet the definition of “child.”

The statute does not define the term “serious health condition,” but most likely it will be construed in conformity with the Family Medical Leave Act (FMLA). Note that to care for a child, the child need only have a “health condition that requires treatment or supervision,” while the care of all other family members requires a serious health condition or emergency. Note also that the term “emergency condition” is not defined in the new statute.

Deficit spending is not allowed: Employees are prohibited from taking “advance leave before it has been earned.” This phrase is not defined, and replaces the term “accrued” in Washington’s Family Care Act. It is not yet clear whether the Department of Labor and Industries’ interpretation of “accrued sick leave” will be applied to the new statutory language. Under the prior law, the term “accrual” included both leave earned on the basis of hours worked or paid, as well as one time grants of sick leave at the beginning of a year. Thus the Act has applied in situations where employees do not “earn” the sick time by working for a set period of time. According to the Department of Labor and Industries’ interpretation, the Act has applied even if the employee has been granted paid time off simply by virtue of being employed.

Leave must comply with the employer’s policies: The employee must comply with the terms of any applicable collective bargaining agreement or employer policy when taking leave, except for any terms relating to the choice of leave. Thus, if an employee is required to call in at least one hour prior to her start time to be eligible to use sick leave, this can also be required when using sick leave to care for a family member. Or if an employee has to complete a trial period before being able to use leave, this should also apply if an employee wants to use the leave to care for a family member with a serious health condition.

Anti-Retaliation Provisions: The amendments to the Act add a new section that prohibits employers from discharging, threatening to discharge, demoting, suspending, disciplining, or discriminating against employees who exercise their rights under the Act. This language is very broad and may call into question whether an absence under the Act may count as an occurrence under a no-fault attendance policy.

Differences from the FMLA: The FMLA provides eligible employees up to 12 weeks per year of unpaid leave to care for a child, spouse, or parent with a “serious health condition” and guarantees job protection. The Washington Family Care Act has always granted employees the right to use sick leave in certain situations where the FMLA does not apply—namely, when a child is sick but does not necessarily have a “serious health condition.” Additionally, under state law employees need not have worked for a year to become eligible, as long as they have accrued the sick leave or other paid time off.

The amendments to the Act do not provide additional time off above and beyond what the employee is already entitled to take. Instead, the Act greatly expands the situations in which an employer can use the paid time off he or she has already earned.

Amendments do not apply to disability leave: Although not specifically noted in the language of the bill, a discussion on the floor of the House made it clear that the amendments were not intended to apply to short-term or long-term disability leave. Unfortunately, this limitation was not included in the language of the statute. Therefore, the issue of whether insured or uninsured short and long term disability benefits have effectively been excluded from this law may need to be decided by the courts.

Comment

These changes to the law will have a substantial impact on the ability of employees to use their sick leave or other paid time off. For employers that allow generous accumulation of sick leave or have no “caps” on the use of sick leave, the financial implications could be great. Employers may also wish to consider a unified paid time off plan in lieu of separate policies based on the type of leave at issue. These amendments were passed without extensive comment and therefore it is difficult to predict how the language changes will be interpreted in specific situations. Therefore, to ensure compliance with the amendments, and to protect against the unintended use of sick leave, we recommend that employers check with counsel to review their policies governing the use of accrued leave.

Any questions about this Advisory should be directed to :

Rebecca Shapiro Cohen, Seattle, (206) 903-3951, rebeccashapirocohen@dwt.com
Lawton Humphrey, Seattle, (206) 628-7672, lawtonhumphrey@dwt.com

This Employment Law Advisory is a publication of the Employment Law Department of Davis Wright Tremaine LLP. Our purpose in publishing this Advisory is to inform our clients and friends of recent developments in employment law. It is not intended, nor should it be used, as a substitute for specific legal advice as legal counsel may only be given in response to inquiries regarding particular situations. Copyright © 2002, Davis Wright Tremaine LLP.

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