Washington’s New Leave Laws and the COVID-19 Outbreak

No sooner has Washington enacted two major new leave laws – the Washington Paid Sick Leave Law and the Washington Paid Family and Medical Leave Law (WPFML) – than the State has found itself to be one of the epicenters of the COVID-19 outbreak.  Here is what Washington employers need to know about Paid Sick Leave and WPFML in the coming weeks.

WA Paid Sick Leave

All non-exempt/hourly employees within the state of Washington are entitled to accrue paid sick leave.  Those employees who have worked for you for at least 90 days are entitled to use their paid sick leave for several reasons that the COVID-19 outbreak may trigger.

Not surprisingly, the employee may use accrued sick leave for his or her own healthcare needs, as well as to allow the employee to provide care for a covered family member with a health condition.  Unlike the federal Family and Medical Leave Act (FMLA) and WPFML, the health condition need not be “serious.”  Even the most mild version of COVID-19 would be covered.

In addition, sick leave may be used for the employee’s or the employee’s family member’s “preventive medical care.”  While this likely contemplates preventive medical appointments, such as an annual check-up with one’s family doctor, it could potentially extend to circumstances where the employee’s medical provider warns against the employee coming into work because the employee is in a high-risk category for complications from COVID-19: for example, if the employee is pregnant or has a chronic health condition that may place the employee in danger if he or she were to contract COVID-19.

Finally, accrued sick leave may be used “[w]hen the employee’s place of business has been closed by order of a public official for any health-related reason, or when an employee’s child’s school or place of care has been closed for such a reason.”  This may become a reality for large groups of employees if COVID-19 continues to spread through the State.

While the WA Paid Sick Leave Law applies only to non-exempt employees, employers should be aware that certain cities have local ordinances covering all employees.  For example, the Seattle Paid Sick and Safe Time Ordinance applies to all Seattle employees and allows use of leave for the same reasons covered by the state-wide Paid Sick Leave Law.

WA Paid Family & Medical Leave 

WPFML kicked in as of January 1st of this year and will no doubt be put to the test with the COVID-19 outbreak.  Eligible employees may apply to the WA Employment Security Department (ESD) for WPFML benefits when out on leave due to their own or a covered family member’s serious health condition.  This may or may not apply to mild incidents of COVID-19.  A typical bout with the flu, for instance, does not usually trigger FMLA or WPFML.  However, given the careful medical supervision and quarantining surrounding even mild cases of COVID-19, it is possible that a mild case could still meet the definition of a “serious health condition.”  The employee would arguably have an “inability to work” because of COVID-19 if he or she is prevented from coming into the workplace because of quarantine concerns, and he or she may be subject to a continuing regimen of medical treatment even if the symptoms are minor.  It remains an open question whether ESD will treat such cases as eligible for WPFML benefits.

Given this gray area, employers should treat all cases of COVID-19 as triggering the employer’s notification requirements.  When an employee has been absent for seven days for COVID-19-related reasons (or sooner than that if the employer prefers), the employer should notify the employee of the potential availability of WPFML benefits and refer him or her to the ESD website for more information.