by Karen Sutherland and Beth Van Moppes
The coronavirus pandemic has created stressful times for many lately. With Governor Inslee’s order to temporarily close all restaurants, bars, clubs, and a range of other facilities, including hair and nail salons, health and fitness clubs, and theaters, the stress on Washington State employees and employers has been compounded by the myriad questions related to these changing circumstances and their relative rights and responsibilities. To further contribute to the confusion, as these situations have changed, the laws and related advice for employers have changed, and continue to change, on an almost-daily basis. As a result, the resources and regulations listed here should be relied upon with the understanding that they are subject to change as the coronavirus situation changes.
Available Leave for Employees
The Employment Security Department summarizes the types of leave currently applicable to employees in Washington State for different coronavirus scenarios. This page includes a Q&A for workers that addresses various scenarios that may offer helpful solutions to both employers and employees. For example, it considers an employee’s application for unemployment benefits where they were temporarily laid off as the result of reduced business related to the temporary shut down.
Many employees are facing a need to stay home due to the closure of their child’s school. School closure is an authorized purpose for using employer-paid sick leave under both Washington State law and Seattle ordinance (and in some other cities) if the school attended by the employee’s child was ordered closed by a public official for health care reasons: click here to see City ordinances and click here to see State ordinances. However, employees who stay home because of a school closure are not entitled to leave under the Americans with Disabilities Act (ADA), the Family Medical Leave Act (FMLA), or Paid Family Medical Leave (PFML).
For qualifying events under the State’s new PFML, see ap.washington.edu/ahr/policies/leaves/washington-state-paid-family-and-medical-leave-pfml/. For qualifying events under the FMLA, see www.ecfr.gov/cgi-bin/retrieveECFR?n=pt29.3.825#se29.3.825_1112. Leave for a school closure also is not available as a reasonable accommodation under the ADA because the employee does not have a disability.
Exempt Employees & Deductions from Salary
There are also some unique considerations for employers whose exempt employees either take time off for personal reasons (e.g., coronavirus-related reasons that do not qualify for paid leave) or because they have exhausted their leave banks. Deductions from pay for exempt employees are covered by WAC 296-128-532, which states, in part:
Deductions for salaried, exempt employees.
(1) When does this section apply? This section applies to any employee who is paid on a salary basis and who meets the definitions of executive, administrative, or professional.
(2) What does salary basis mean? Salary basis is where an employee regularly receives for each pay period of one week or longer (but not to exceed one month) a predetermined monetary amount (the salary) consisting of all or part of his or her compensation, which amount will not be less than required to be paid pursuant to WAC 296-128-510 through 296-128-530. The salary shall not be subject to deduction because of variations in the quantity or quality of the work performed, except as provided in this section. Under RCW 49.46.130(2)(a), salaried employees may receive additional compensation or paid time off and still be considered exempt.
(3) When are deductions from salary allowed?
(a) If the employee performs no work in a particular week, regardless of the circumstances, the employer may deduct for the entire week.
(b) When the employee takes at least a whole day off for personal reasons other than sickness or accident, the employer may deduct in full day increments.
(c) Deductions for absences due to sickness or disability may be made in full day increments if the deduction is made according to the employer’s bona fide plan, policy or practice of providing paid sick and disability leave (other than industrial accidents or disability).
(i) Deductions are permitted when either leave is exhausted or the employee has not yet qualified under the plan.
(ii) Deductions are permitted even if an employee receives compensation under that plan or under workers’ compensation laws.
(d) When an employee is eligible for the federal Family and Medical Leave Act 29 U.S.C. Sec. 2611 et seq., deductions may be made for partial day absences due to leave taken according to that law and the applicable provisions in chapter 49.78 RCW.
(e) In the first and final week of employment, an employee’s salary may be prorated for the actual days worked. …
(g) Deductions are allowed when authorized under RCW 49.48.010, 49.52.060, or WAC 296-126-025.
(4) What are improper deductions from salary?
(a) Deductions are not permitted for partial days of work, except as permitted by subsection (3)(d) of this section or by WAC 296-128-533.
(b) Deductions are not permitted for lack of work for any amount of time less than a full week. …
(d) Deductions are not permitted for absences due to sickness or disability if the employer does not have a bona fide plan, policy or practice in place for sick or disability leave.
(e) Any other deductions not allowed under subsection (3) of this section.
(5) Is a “window of correction” permitted? A limited window of correction will be permitted when an improper deduction is shown to be infrequent and inadvertent and the employer immediately begins taking corrective steps to promptly resolve the improper deduction when brought to the attention of the supervisor or other appropriate representative of the employer. Such corrections will be allowed only to the extent that the deduction is not due to lack of work or part of a pattern of the same or substantially similar deductions.
(6) What deductions may be made from leave banks?
(a) Deductions may be made from compensatory time in any increment.
(b) Deductions may be made from bona fide leave banks in partial or full day increments. However, partial day deductions may be made only on the express or implied request of the employee for time off from work. Leave bank deductions may not be made for less than one hour.
A “bona fide leave bank” is a benefit provided to employees in the case of absence from work due to sickness or personal time off, including vacation. It must be in writing and contained in contract or agreement, or in a written policy that is distributed to employees. A leave bank policy, or a leave bank provision in a contract or agreement, is not “bona fide” if it is used as a subterfuge to circumvent or evade the requirements of this regulation.
(c) When leave banks are exhausted, deductions from salary may not be made, except as permitted in subsection (3) of this section.
This is not legal advice. Please consult your attorney for legal counsel, or reach out to our attorneys at (206) 447-7000. OMW Employment Attorneys have also been advising many employers on pay cuts and on the different types of layoff programs that are currently available, as well as on the recommendations for retailers, service providers, and daycares. We understand that this is a stressful situation and we are happy to talk to you or your clients about how to handle these complicated issues in this time of uncertainty. Please do not hesitate to reach out to one of us.