| 
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.
return to Advisory
Bulletins main page
|
