Employee Handbooks - Work Rules - Employee Conduct: Washington
Federal law and guidance on this subject should be reviewed together with this section.
Author: Gloria Ju
- Washington is an employment at-will state, and it recognizes that an employee handbook can alter the at-will relationship. See At-Will Nature of Employment.
- State employees have the right to vote, express political opinions and participate in a political campaign. See Work Rules Concerning Political Activity and Employee Expression of Views.
- State and municipal officers must comply with Washington's laws on ethics. See Work Rules Concerning Employee Codes of Conduct, Ethics and Conflicts of Interest.
- The Washington Law Against Discrimination prohibits discrimination based on marital status, with exceptions for actual and potential conflicts of interest. See Work Rules Concerning Personal Relationships and Personal Activities.
- Although Washington legalized medical marijuana, employers are free to establish drug-free workplace policies that do not accommodate the use of medical marijuana. See Work Rules Concerning Alcohol, Drug Use and Smoking.
- Washington prohibits smoking in any place of employment. See Work Rules Concerning Alcohol, Drug Use and Smoking.
- Employers can have a policy prohibiting employees from bringing their pets to work, but must make an exception for service animals. See Work Rules Regarding Safety and Health.
- State agencies and schools must have written sexual harassment policies. See Work Rules Regarding Workplace Violence and Harassment.
- Washington requires the consent of all parties to a communication in order to legally intercept or record the communication. See Work Rules Regarding Use of Employer Equipment, Vehicles and Communication Systems.
- Employers with gender-specific dress codes must understand how to apply it to transgender employees. See Work Rules Regulating Employee Dress, Grooming and Personal Appearance.
- Employees are entitled to 30-minute meal breaks and 10-minute rest breaks. See Break Times and Meal Times.
- Employees must be paid at least monthly, and employers must establish regular paydays. See Regular Payday.
- Attendance policies must take into account state laws regarding military leave; pregnancy, parental, and family leave; emergency services leave; and domestic violence leave. State and school employees have additional leave rights. See Work Rules Regarding Attendance, Tardiness and Timekeeping.
- Employers must understand that an employee terminated for misconduct according to the company handbook may be able to collect unemployment benefits. See Work Rules Concerning Employee Misconduct.
- Localities including SeaTac, Seattle and Tacoma have requirements pertaining to employee handbooks, work rules and employee conduct.See Local Requirements.
At-Will Nature of Employment
Washington is an at-will employment state. Absent a contract of employment for a specified period, either the employer or employee can terminate employment at any time, with or without cause. See Webster v. Schauble, +65 Wn.2d 849 (1965); See Employment At-Will: Washington. An employer's right to terminate an at-will employee can be modified by statements contained in employee policy manuals or handbooks. If an employer promises specific treatment in specific situations, thereby creating an atmosphere of job security and fair treatment and inducing an employee to remain on the job and not actively seek other employment, those promises are enforceable components of the employment relationship. See Thompson v. St. Regis Paper Co., +102 Wash. 2d 219 (1984).
Employers can avoid being bound by statements in employment manuals by specifically stating in a conspicuous manner that nothing contained in the manual is intended to be part of the employment relationship and are simply general statements of company policy. Employers can also specifically reserve the right to modify policies or write them in a manner that retains discretion to the employer.See Thompson v. St. Regis Paper Co., +102 Wash. 2d 219 (1984). Such disclaimers are only effective if they are communicated to employees (i.e., they are conspicuous). Having employees sign a document acknowledging the disclaimer goes to the issue of effective communication. See Swanson v. Liquid Air Corp., +118 Wn.2d 512 (1992).
Work Rules Concerning Political and Charitable Activity and Employee Expression of Views
Employees of the state or any political subdivision have the right to:
- Express their opinions on all political subjects and candidates;
- Hold any political party office or participate in the management of a partisan, political campaign; and
- Participate fully in campaigns relating to constitutional amendments, referendums, initiatives, and issues of a similar character, and for nonpartisan offices.
Executive branch state officers and employees may solicit gifts, grants and donations to support bona fide charitable or nonprofit organizations only from state employees or businesses and organizations that have no business dealings with the soliciting employee's agency. +Wash. Rev. Code § 9.46.0209; +Wash. Rev. Code § 42.52.805. Charitable solicitations must also comply with the gifts provision of the state's law on ethics in public service. +Wash. Rev. Code § 42.52.140.
Work Rules Concerning Employee Codes of Conduct, Ethics and Conflicts of Interest
The Washington Law Against Discrimination (WLAD) prohibits discrimination in employment based on marital status. However, the law allows such discrimination if a marital relationship creates a conflict of interest. See Work Rules Concerning Personal Relationships and Personal Activities.
Ethics in Public Service
The state law on ethics in public service prohibits state officers and employees from:
- Having an interest, financial or otherwise, direct or indirect;
- Engaging in a business or transaction or professional activity; or
- Incurring an obligation of any nature, that is in conflict with the proper discharge of the state officer's or employee's official duties.
+Wash. Rev. Code §§ 42.52.010 et seq.
Code of Ethics for Municipal Officers
The state regulates business transactions by municipal officers that may conflict with the proper performance of their duties in the public interest. Municipal officers may not:
- Be directly or indirectly beneficially interested in any contract that is made by, through or under the officer's supervision or that is made for the benefit of his or her office; or
- Directly or indirectly accept any compensation, gratuity or reward in connection with a contract from any other person beneficially interested in it, except under limited circumstances.
+Wash. Rev. Code §§ 42.23.010 et seq.
Work Rules Concerning Personal Relationships and Personal Activities
The Washington Law Against Discrimination (WLAD) prohibits employers with eight or more employees from discriminating on the basis of marital status, which means the legal status of being married, single, separated, divorced or widowed. +Wash. Rev. Code § 49.60.040; +Wash. Rev. Code § 49.60.180. Employers enforcing a documented conflict of interest policy are permitted to limit employment opportunities on the basis of marital status in the following situations:
- Where one spouse would have the authority or practical power to supervise, appoint, remove or discipline the other;
- Where one spouse would be responsible for auditing the work of the other;
- Where other circumstances exist that would place the spouses in a situation of actual or reasonably foreseeable conflict between the employer's interest and their own; or
- Where, in order to avoid the reality or appearance of improper influence or favor, or to protect its confidentiality, the employer must limit the employment of close relatives of policy level officers of customers, competitors, regulatory agencies or others with whom the employer deals.
Work Rules Concerning Alcohol, Drug Use, and Smoking
Washington does not have any drug testing laws specific to private employers. Employers should follow the federal Americans with Disabilities Act and ensure that their drug testing policies and practices do not violate any other antidiscrimination laws.
Public employers must limit preemployment drug testing to applicants whose duties will genuinely implicate public safety. Specifically, this includes sworn police officers and firefighters, and positions requiring the employee to carry a firearm. Other positions may be included if the employer demonstrates that the position involves the performance of duties whereby public safety is in jeopardy. See Robinson v. City of Seattle, +102 Wash. App. 795 (2000).
Washington passed the Medical Cannabis Act, +Wash. Rev. Code § 69.51A.005 et seq., which decriminalizes the medical use of cannabis for patients with certain terminal or debilitating conditions. The Act specifically states that employers are not required to accommodate the on-site use of medical cannabis. +Wash. Rev. Code § 69.51A.060(4). Employers are free to establish drug-free workplace policies. The Act does not require an accommodation for the medical use of cannabis if an employer has a drug-free workplace. +Wash. Rev. Code § 69.51A.060(6).
Smoking in the Workplace
Employers in Washington should have a policy banning smoking in the workplace. The law prohibits smoking in a public place or in any place of employment. +Wash. Rev. Code § 70.160.030.
Place of employment means any area under the control of a public or private employer that employees are required to pass through during the course of employment, including, but not limited to: Entrances and exits to the places of employment, including a presumptively reasonable minimum distance of 25 feet from entrances, exits, windows that open and ventilation intakes that serve an enclosed area where smoking is prohibited; work areas; restrooms; conference rooms and classrooms; break rooms and cafeterias; and other common areas. It does not include a private residence or home-based business, unless used to provide licensed child care, foster care, adult care or other similar social service care on the premises. +Wash. Rev. Code § 70.160.020(3).
The owner, lessee or person in charge of the public place or place of employment must post conspicuous signs prohibiting smoking at each building entrance. In the case of retail stores and retail service establishments, signs must be posted conspicuously at each entrance and in prominent locations throughout the place. +Wash. Rev. Code § 70.160.050.
This law is not intended to regulate smoking in a private enclosed workplace, within a public place, even though the workplace may be visited by nonsmokers, excepting places in which smoking is prohibited by the chief of the Washington state patrol, through the director of fire protection, or by other law, ordinance or regulation. +Wash. Rev. Code § 70.160.060.
Work Rules Regarding Safety and Health
Animals in the Workplace
Employers can have a policy prohibiting employees from bringing their pets to work. This ban, however, must make an exception for service animals. The Washington Law Against Discrimination (WLAD) prohibits employers with eight or more employees from discriminating because of the presence of any sensory, mental or physical disability or the use of a trained dog guide or service animal by a person with a disability. +Wash. Rev. Code § 49.60.180; +Wash. Rev. Code § 49.60.218.
An employer can request that a dog guide or service animal be removed from the workplace if it can show that the presence, behavior or actions of the animal constitutes an unreasonable risk to property or other persons. It is an unfair practice to remove a trained dog guide or service animal from the entire workplace because the animal presents a risk of injury or harm when in part of the workplace. Risk to property or other persons must be immediate or reasonably foreseeable under the circumstances, not remote or speculative. An employer cannot justify removing the dog guide or service animal merely because other employees or customers are annoyed by the presence of the animal. If there is risk of injury or harm to the animal in the workplace, it is the decision of the person with a disability using the dog guide or service animal whether to bring the animal to the worksite, not the employer. If the employer is justified in removing the dog guide or service animal from the workplace, it must make an effort to reasonably accommodate the person with a disability. +Wash. Admin. Code § 162-22-100.
Washington encourages employers to accommodate breastfeeding mothers. Employers can advertise as an "infant friendly" workplace if they set up lactation support for their employees. In order to use the "infant friendly" designation on promotional materials, employers must have an approved workplace breastfeeding policy that includes the following:
- Flexible work scheduling, including permitting breaks and work patterns that provide time for expressing breast milk;
- A convenient, sanitary, safe and private location (other than a restroom), allowing privacy for breastfeeding or expressing breast milk;
- A convenient, clean and safe water source with facilities for washing hands and rinsing breast-pumping equipment located in the private location; and
- A convenient hygienic refrigerator in the workplace for the mother's breast milk.
Because this is an incentive program for Washington employers, employers must get the State Department of Health's approval of their workplace breastfeeding policy. +Wash. Rev. Code § 43.70.640.
Washington employers with 15 or more employees are required to provide reasonable accommodations to employees based on pregnancy or a pregnancy-related health condition. +2017 Bill Text WA S.B. 5835.
A reasonable accommodationmay include:
- More frequent, longer or flexible restroom breaks;
- Modified no-food or -drink policy;
- Job restructuring;
- Part-time or modified work schedules;
- Reassignment to a vacant position;
- Acquisition or modification of equipment, devices or an employee's work station;
- Seating or ability to sit more frequently if the job requires the employee to stand;
- Temporary transfer to a less-strenuous or less-hazardous position;
- Assistance with manual labor and limits on lifting;
- Scheduling flexibility for prenatal visits; and
- Any further accommodation the employee may request, which the employer must reasonably consideration by consulting with information on pregnancy accommodation provided by the Department of Labor and Industries or the employee's attending health care provider.
An employer may request that the employee provide written certification from her treating health care professional supporting the need for the reasonable accommodation. However, an employer may not require certification for the following accommodations; nor may the employer fail to provide claiming undue hardship:
- More frequent, longer or flexible restroom breaks;
- Modified no-food or -drink policy;
- Seating or ability to sit more frequently if the job requires the employee to stand; and
- A limit on lifting over 17 pounds.
Unless it does so or would do so to accommodate other classes of employees, an employer is not required to:
- Created additional employment that the employer otherwise would not have created;
- Terminate any employee;
- Transfer any employee with more seniority; or
- Promote any employee not qualified to perform the job.
An employer should review its policies and procedures concerning reasonable accommodations related to pregnancy and pregnancy-related health conditions.
Work Rules Regarding Workplace Violence and Harassment
Guns in the Workplace
There is no law prohibiting employers from implementing a rule banning employees from carrying guns in the workplace.
Sexual Harassment Policy - State Agencies
State agencies, excluding institutions of higher education, must update or develop and disseminate among all agency employees and contractors a policy that:
- Defines and prohibits sexual harassment in the workplace;
- Includes procedures that describe how the agency will address concerns of employees who are affected by sexual harassment in the workplace;
- Identifies appropriate sanctions and disciplinary actions; and
- Complies with guidelines adopted by the Director of Personnel.
Sexual Harassment Policy - Schools
As of June 30, 1995, every school district must have adopted and implemented a written sexual harassment policy that applies to all school district employees, volunteers, parents and students. The policy must be conspicuously posted throughout each school building, provided to each employee, and included in any publication of the school or school district setting forth the rules, regulations, procedures and standards of conduct for the school or school district. +Wash. Rev. Code § 28A.640.020(2).
Work Rules Regarding Use of Employer Equipment, Vehicles and Communication Systems
No individual, partnership, corporation, association or the state of Washington, its agencies and political subdivisions may intercept or record any (1) private communication transmitted by telephone, telegraph, radio or other device between two or more individuals or (2) private conversation by any device electronic or otherwise designed to record or transmit such conversation, without first obtaining the consent of all the participants in the communication. +Wash. Rev. Code § 9.73.030(1).
An employer can obtain consent by announcing in any reasonably effective manner to all other parties engaged in the communication or conversation that such communication or conversation is about to be recorded or transmitted. If the conversation is to be recorded, the announcement must also be recorded. +Wash. Rev. Code § 9.73.030(3).
An employee of any regularly published newspaper, magazine, wire service, radio station or television station engaging in bona fide news gathering duties are deemed to have consent to record and divulge communications or conversations otherwise prohibited by law if the consent is expressly given or if the recording or transmitting device is readily apparent or obvious to the speakers. Withdrawal of the consent after the communication has been made does not prohibit the employee from divulging the communication or conversation. +Wash. Rev. Code § 9.73.030(4).
Work Rules Regarding Off-Duty Conduct
Although Washington has legalized the use of medical cannabis, employers are free to establish drug-free workplace policies and are not required to accommodate such use. See Work Rules Concerning Smoking, Alcohol and Drug Use.
Under the state's ethics in public service law, no state officer or employee may receive any thing of economic value under any contract or grant outside of his or her official duties, unless certain conditions are met. +Wash. Rev. Code § 42.52.120.
Work Rules Regulating Employee Dress, Grooming and Personal Appearance
Employers in Washington are relatively free to implement rules regarding dress, grooming and personal appearance, as long as they comply with the Washington Law Against Discrimination (WLAD). The WLAD prohibits employers with eight or more employees from discriminating because of age, sex, marital status, sexual orientation, race, creed, color, national origin, honorably discharged veteran or military status, or the presence of any sensory, mental, or physical disability or the use of a trained dog guide or service animal by a person with a disability. Sexual orientation means heterosexuality, homosexuality, bisexuality, and gender expression or identity. Gender expression or identity means having or being perceived as having a gender identity, self-image, appearance, behavior or expression, whether or not that gender identity, self-image, appearance, behavior or expression is different from that traditionally associated with the sex assigned to that person at birth. +Wash. Rev. Code § 49.60.040; +Wash. Rev. Code § 49.60.180.
Employers with gender-specific dress codes may be unsure how to apply it to transgender employees. The Washington State Human Rights Commission, which enforces the WLAD, advises employers to permit transgender employees to comply with the policy in an appropriate manner that is consistent with their gender identity or expression. Transitioning employees are often required by their counselors to "present" as the gender to which they are transitioning before undertaking any surgical procedures. Employees may ask transitioning employees to present consistently as this gender throughout the transition.
Employers must furnish or compensate employees for uniforms that the employer requires employees to wear during working hours. Uniforms include:
- Apparel of a distinctive style and quality that, when worn outside of the workplace, clearly identifies the person as an employee of a specific employer;
- Apparel that is specially marked with an employer's logo;
- Unique apparel representing an historical time period or an ethnic tradition; or
- Formal apparel.
Uniforms do not include apparel of a common color (white, tan or blue, for tops; tan, black, blue or gray, for bottoms) that conforms to a general dress code or style.
An employer is permitted to require an employee to obtain two sets of wearing apparel to accommodate for the seasonal changes in weather that necessitate a change in wearing apparel. If an employer changes the color or colors of apparel required to be worn by employees during a two-year time period, the employer must furnish or compensate the employees who are affected by the change for the apparel.
Work Rules Regarding Employee Work Schedules and Shifts
When creating work rules and policies regarding employee work schedules and shifts, employers should consider the following issues.
Washington regulates the hours for the following workers:
- Public works employees: It is a part of the public policy of the state of Washington that all work done for the state or any county or municipality within the state is to be done in eight-hour workdays, except in cases of extraordinary emergency. Employees may agree to work four 10-hour days per week. +Wash. Rev. Code §§ 49.28.010et seq.
- Domestic employees: No male or female household or domestic employee may be employed by any person for a longer period than 60 hours in any one week, except in cases of emergency. Employed time includes minutes or hours when the employee is on-call and is not free to follow his or her inclinations. +Wash. Rev. Code § 49.28.080.
- Operators of power equipment in waterfront operations: Except in cases of emergency, employees may not operate on docks, in warehouses and/or in or on other waterfront properties any power driven mechanical equipment for the purpose of loading cargo on, or unloading cargo from, ships, barges or other watercraft, or of assisting in such loading or unloading operations, for a period in excess of 12.5 hours at any one time without having an interval of eight hours' rest. +Wash. Rev. Code § 49.28.100.
- Health care facility employees (i.e., licensed practical nurses and registered nurses): No employee of a health care facility may be required to work overtime; that is, hours worked in excess of 12 hours in a 24-hour period or 80 hours in a consecutive 14-day period. The acceptance of overtime must be strictly voluntary, and the refusal to accept overtime work cannot result in discrimination, termination or any other penalty, threat of reports for discipline or employment decision adverse to the employee. Exceptions include unforeseeable emergencies, prescheduled on-call time, after the employer has used reasonable efforts to obtain staffing and when the employee must complete a patient care procedure already in progress. +Wash. Rev. Code §§ 49.28.130 et seq.
Break Times and Meal Times
Employees must be given a meal period of at least 30 minutes that begins no less than two hours and no more than five hours from the beginning of the shift. Meal periods are on the employer's time when the employer requires the employee to remain on duty on the premises or at a prescribed work site in the interest of the employer. No employee can be required to work more than five consecutive hours without a meal period. Employees working three or more hours longer than a normal workday must be allowed at least one 30-minute meal period prior to or during the overtime period. +Wash. Admin. Code § 296-126-092(1) - (3).
Employees must be given a rest period of not less than 10 minutes, on the employer's time, for each four hours of working time. Rest periods must be scheduled as near as possible to the midpoint of the work period. No employee can be required to work more than three hours without a rest period. Scheduled rest periods are not required if the nature of the work allows employees to take intermittent rest periods equivalent to 10 minutes for each four hours worked. +Wash. Admin. Code §§ 296-126-092(4) - (5).
All certificated employees of school districts must be allowed a reasonable lunch period of not less than 30 continuous minutes per day during the regular school lunch periods and during which they have no assigned duties. Local districts may work out other arrangements with the consent of all affected parties. +Wash. Rev. Code § 28A.405.460.
Wages must be paid at least monthly on an established regular payday. If an employer pays more frequently than once per month, the regular payday must be no later than 10 calendar days after the end of the pay period, unless expressly provided otherwise by law. If an employer pays monthly, wages for work performed by an employee during the last seven days of the monthly pay period may be withheld and included with the wages paid on the payday for the next pay period. +Wash. Admin. Code § 296-126-023.
Vacation and Sick Leave
Private employees are not statutorily entitled to vacation or sick leave. State employees are entitled to earn:
- 12 vacation days during the first year of continuous state employment;
- 13 vacation days during the second year of continuous state employment;
- 14 vacation days during the third and fourth years of continuous state employment;
- 15 vacation days during the fifth, sixth and seventh years of total state employment;
- 16 vacation days during the eighth, ninth and 10th years of total state employment;
- 17 vacation days during the 11th year of total state employment;
- 18 vacation days during the 12th year of total state employment;
- 19 vacation days during the 13th year of total state employment;
- 20 vacation days during the 14th year of total state employment;
- 21 vacation days during the 15th year of total state employment;
- 22 vacation days during the 16th and succeeding years of total state employment; and
- Eights hours of sick leave per month.
General government state employees, within an agency, may pool sick leave to be used by participating employees who have a personal illness, accident or injury. Prior to creating a sick leave pool, an agency that decides to participate in the sick leave pool program must appoint an administrator for each sick leave pool and develop a written policy that, at a minimum, addresses:
- Eligibility requirements for employees who wish to participate;
- Enrollment process, including when open enrollment will occur;
- Amount of sick leave an employee must initially contribute to become a participant;
- Amount of sick leave a participating employee must contribute when a pool becomes depleted;
- When a pool will be considered to be depleted;
- What happens when a participating employee does not have enough leave to contribute to the pool;
- The process and criteria that will be used when a sick leave pool participant needs to withdraw sick leave from the pool;
- What happens when there is not enough leave in a pool to cover pool participants' requests to withdraw leave;
- The manner in which alleged abuse of the sick leave pool will be investigated and what actions will be taken if it has been determined that abuse has occurred;
- The manner in which employees can request an internal review of a finding of wrongdoing;
- Transferring of sick leave credits when a pool participant moves from one pool to another pool; and
- What happens to leave credits that are in a pool if the pool is disbanded.
+Wash. Admin. Code §§ 357-31-570 et seq.
The following days are designated as state holidays:
- January 1 (New Year's Day);
- The third Monday of January (Martin Luther King, Jr.'s birthday);
- The third Monday of February (Presidents' Day);
- The last Monday of May (Memorial Day);
- July 4 (Independence Day);
- The first Monday in September (Labor Day);
- November 11 (Veterans Day);
- The fourth Thursday of November (Thanksgiving Day);
- The day immediately following Thanksgiving Day; and
- December 25 (Christmas Day).
When a holiday falls on Saturday, the preceding Friday is observed as the nonworking or legal holiday. When a holiday falls on Sunday, the following Monday is observed as the nonworking or legal holiday. +Wash. Admin. Code § 357-31-040.
State employees who are scheduled to be, or have been, continuously employed by the state of Washington for at least four months are entitled to one paid personal holiday per calendar year in addition to those listed above. +Wash. Admin. Code §§ 357-31-055et seq.
Work Rules Regarding Attendance, Tardiness and Timekeeping
Employers should be aware of the various laws that limit the ability to discipline employees for absenteeism.
Leave as an Accommodation
The Washington Law Against Discrimination (WLAD) prohibits employers with eight or more employees from discriminating because of the presence of any sensory, mental or physical disability or the use of a trained dog guide or service animal by a person with a disability. +Wash. Rev. Code § 49.60.180; +Wash. Rev. Code § 49.60.218. It is an unfair practice for an employer to fail or refuse to reasonably accommodate an able worker with a disability or the use of a trained dog guide or service animal by an able worker with a disability, unless to do so would impose an undue hardship. +Wash. Admin. Code § 162-22-025(2). Reasonable accommodation can include adjusting work schedules. +Wash. Admin. Code § 162-22-065.
State agencies must provide allowances to employees with sensory disabilities who must attend training necessary to attain a new service animal. The employee's absence must be treated in the same manner as that granted to employees who are absent to attend training that supports or improves their job performance. Employees must provide at least 30 days' notice of the absence, if practicable. The agency can require the employee to support the absence with certification from the relevant training organization that states the date the training session is scheduled to commence and the duration of the session. +Wash. Rev. Code § 49.90.010.
Military Leave - All Employers
Any person who is a resident of Washington or is employed within the state, and who voluntarily or upon order from competent authority, vacates a position of employment for service in the uniformed services is entitled to be reinstated to his or her former position, or to a position of like seniority, status and pay. +Wash. Rev. Code § 73.16.033.
Under the Military Family Leave Act, an employee who is the spouse of a member of the United States armed forces, National Guard or reserves who has been notified of an impending call or order to active duty or has been deployed is entitled to a total of 15 days of unpaid leave per deployment after the military spouse has been notified of an impending call or order to active duty and before deployment or when the military spouse is on leave from deployment. Eligible employees must work an average of 20 or more hours per week for an employer, including the state and state and local government agencies. The law includes job restoration rights, benefits continuation rights, notification requirements, and the right to substitute accrued leave for unpaid leave. +Wash. Rev. Code §§ 49.77.010 to +Wash. Rev. Code §§ 49.77.900; +Wash. Admin. Code § 357-31-373.
Military Leave - State Employers
State employees must be granted up to 21 working days of paid military leave each year, beginning October 1 and ending the following September 30, in order to report for required military duty, training duty in the Washington National Guard or the Army, Navy, Air Force, Coast Guard, or Marine Corps reserves of the United States or any organized reserve or armed forces of the United States, or to report for drills, including those in the National Guard, or state active status. Employees required to appear during working hours for a physical examination to determine physical fitness for military service must receive full pay for the time required to complete the examination. Employees are also entitled to unpaid military leave for service in the US or state uniformed services. +Wash. Admin. Code §§ 357-31-360 et seq.
The state has created a voluntary uniformed service shared leave pool so that state employees who are called to service in the uniformed services will be able to maintain a level of compensation and employee benefits consistent with the amount they would have received had they remained in active state service. General government and higher education employees may voluntarily donate their leave to be used by any eligible employee who has been called to service in the uniform services. +Wash. Admin. Code §§ 357-31-640et seq.
Each employer must have a written policy that, at a minimum, addresses:
- Eligibility requirements for use of the uniformed service shared leave pool;
- Donation of leave;
- Use of pool leave; and
- Abuse of pool.
Any elective or judicial officer of the state or a political subdivision who enters into active service or training is entitled to an extended leave of absence to cover the period of active service or training. The leave of absence may not extend the term for which the occupant of any elective position has been elected. +Wash. Rev. Code § 73.16.041.
Regulations for the Washington Law Against Discrimination (WLAD) require employers to provide a leave absence to female employees who are sick or temporarily disabled because of pregnancy or childbirth. Employers must treat a woman on pregnancy-related leave the same as other employees on leave for sickness or other temporary disabilities. Employers must be careful of circumstances when the application of the employer's general leave policy to pregnancy or childbirth will not afford equal opportunity for women and men. For example, the employer allows no leave for any sickness or other disability by any employee, or so little leave time that a pregnant woman must terminate employment. Because such a leave policy has a disparate impact on women, it is an unfair practice, unless the policy is justified by business necessity. The regulations also cover reinstatement and benefits. +Wash. Admin. Code § 162-30-020(4).
Sick Leave to Care for Family Members
If, under the terms of a collective bargaining agreement or employer policy applicable to an employee, the employee is entitled to sick leave or other paid time off, then an employer must allow an employee to use any or all of the employee's choice of sick leave or other paid time off, in accordance with the agreement or policy, to care for:
- 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.
+Wash. Rev. Code §§ 49.12.265 et seq.
It is the public policy of Washington to require that employers that grant leave to their employees to care for a newborn child make the same leave available upon the same terms for adoptive parents and stepparents, men and women. +Wash. Rev. Code § 49.12.350. Specifically, employers must grant an adoptive parent or a stepparent, at the time of birth or initial placement for adoption of a child under the age of six, the same leave under the same terms as the employer grants to biological parents. As a term of leave, an employer may restrict leave to those living with the child at the time of birth or initial placement. +Wash. Rev. Code § 49.12.360(1). Employers must also grant the same leave upon the same terms for men as it does for women. +Wash. Rev. Code § 49.12.360(2).
This law does not require employers to:
- Grant leave equivalent to maternity disability leave; or
- Establish a leave policy to care for a newborn or newly placed child if no such leave policy is in place for any employees.
State employees are entitled to request six months of parental leave for purposes of:
- The birth and care of the employee's newborn child; or
- The placement of a minor/dependent child with the employee for adoption or foster care.
Employers may only deny requests for operational necessity, and may approve requests for more than six months.
+Wash. Admin. Code §§ 357-31-460 et seq.
The state's family leave act, +Wash. Rev. Code § 49.78.005 et seq., is equivalent to the federal Family and Medical Leave Act, but there are two major differences:
- The state law covers state registered domestic partners; and
- The state law does not cover exigency leave and leave for covered service members.
The state law entitles eligible employees to take a total of 12 workweeks of leave during any 12-month period for one or more of the following reasons:
- Because of the birth of the employee's child and in order to care for the child;
- Because of the placement of a child with the employee for adoption or foster care;
- In order to care for a family member who has a serious health condition; or
- Because of the employee's own serious health condition prevents the employee from performing job functions.
Emergency Services Leave
Employers with 20 or more full-time equivalent employees in the previous year may not terminate or discipline a volunteer firefighter, reserve officer or civil air patrol member because of leave taken related to an emergency call or emergency service operation. +Wash. Rev. Code § 49.12.460.
Under the state civil service law, a state agency must allow an employee who is a volunteer firefighter to respond, without pay, to a fire, natural disaster or medical emergency when called to duty. The agency may choose to grant leave with pay. +Wash. Rev. Code § 41.06.550.
Domestic Violence Leave
An employee who is a victim of domestic violence, sexual assault or stalking, or whose family member is a victim, is entitled to take reasonable leave from work, with or without pay, to seek legal, medical and other help. +Wash. Rev. Code § 49.76.030; +Wash. Admin. Code § 296-135-020. A family member includes a child, spouse, partner in a state registered domestic partnership, parent, parent-in-law, grandparent or person with whom the employee has a dating relationship. +Wash. Admin. Code § 296-135-010(12). What is considered a reasonable duration of leave must be determined on a case-by-case basis. +Wash. Admin. Code § 296-135-050.
Employers may not terminate, demote, deny a promotion to, sanction, discipline, retaliate against, harass or otherwise discriminate against an employee with respect to compensation, terms, conditions or privileges of employment because the employee:
- Exercised rights under the law;
- Filed or communicated to the employer an intent to file a complaint under the law; or
- Participated or assisted in another employee's attempt to exercise such rights.
This law applies to any person, firm, corporation, partnership, business trust, legal representative or other business entity that engages in any business, industry, profession or activity in the state and employs one or more employees, and includes the state, any state institution, state agency, political subdivisions of the state and any municipal corporation or quasi-municipal corporation. +Wash. Admin. Code § 296-135-010(3).
When a state employee or the employee's family member is a victim of domestic violence, sexual assault or stalking, and is seeking to use accrued leave or take unpaid leave, the employer may require that the request be supported by verification (e.g., police report, court order). +Wash. Admin. Code § 357-31-730(1). Verification of the familial relationship between the employee and the victim of domestic violence, assault or stalking may include, but is not limited to, a statement from the employee, a birth certificate, a court document or other similar documentation. +Wash. Admin. Code § 357-31-730(2).
Accommodations for Victims of Domestic Violence
Washington has added employment discrimination protections and safety accommodation rights to its Domestic Violence Leave Act. Effective June 7, 2018, an employer is prohibited from:
- Refusing to hire an otherwise qualified individual because the individual is an actual or perceived victim of domestic violence, sexual assault or stalking;
- Terminating, threatening to terminate, demoting, suspending or in any manner discriminating or retaliating against an individual with regard to promotion, compensation or other terms, conditions or privileges of employment because the individual is an actual or perceived victim of domestic violence, sexual assault or stalking; and
- Refusing to make a reasonable safety accommodation requested by an individual who is a victim of domestic violence, sexual assault or stalking, unless the employer can demonstrate that the accommodation would impose an undue hardship on the employer's business operations.
A reasonable safety accommodation may include, but is not limited to:
- A job transfer;
- A modified schedule;
- A changed work telephone number, work email address or workstation;
- An installed lock;
- Implemented safety procedures; or
- Any other adjustment to a job structure, workplace facility or work requirement in response to actual or threatened domestic violence, sexual assault or stalking.
An undue hardship means an action requiring significant difficulty or expense.
An employer may apply existing leave verification requirements to a safety accommodation request.
Paid Sick Leave
On November 8, 2016, Washington voters approved a statewide paid sick leave law that took effect January 1, 2018. Washington employers must comply with the statewide paid sick leave law, Initiative 1433 (I-1433), and final rules published by the Washington Department of Labor and Industries (WDLI). +Rev. Code Wash. (ARCW) § 49.46.210.
The paid sick and safe leave law applies to all employers in the state (i.e., any individual, partnership, association, corporation or business trust, or any person or group of persons acting directly or indirectly in the interest of an employer in relation to an employee). +Rev. Code Wash. (ARCW) § 49.46.010. All employees are generally covered, but exceptions apply. +Rev. Code Wash. (ARCW) § 49.46.010.
An employee may use paid sick leave for any of the following reasons:
- An employee's or a family member's mental or physical illness, injury or health condition; need for medical diagnosis, care or treatment of the employee's or a family member's illness, injury or health condition; or need for preventive medical care;
- An absence that qualifies for leave under the state's domestic violence leave law due to an incident of domestic violence, sexual assault, or stalking; and
- Closure of the employee's place of business or a child's school or place of care by order of a public official for any health-related reason.
An employer may not adopt or enforce any policy counting the use of paid sick leave as an absence that may lead to or result in discipline against the employee, or discriminate or retaliate against an employee for exercising any rights under the law, including using paid sick leave.
Work Rules Concerning Employee Misconduct
Employers are free to define misconduct in their employee handbooks as they see fit. However, employers must understand that their definition of misconduct that can result in termination may not match the state's definition for unemployment compensation purposes. Under the state's Employment Security Act, employees may be disqualified from receiving unemployment benefits if they were terminated or suspended for misconduct, which includes:
- Willful or wanton disregard of the rights, title and interests of the employer or a fellow employee (e.g., insubordination; repeated inexcusable tardiness after warnings by the employer; dishonesty, including deliberate falsification of company records, theft, deliberate deception and lying; repeated and inexcusable absences; deliberate acts that are illegal, provoke violence or violation of laws, or violate a collective bargaining agreement);
- Deliberate violations or disregard of standards of behavior that the employer has the right to expect of an employee;
- Carelessness or negligence that causes or would likely cause serious bodily harm to the employer or a fellow employee; or
- Carelessness or negligence of such degree or recurrence to show an intentional or substantial disregard of the employer's interest.
Misconduct does not include:
- Inefficiency, unsatisfactory conduct or failure to perform well as the result of inability or incapacity;
- Inadvertence or ordinary negligence in isolated instances; or
- Good-faith errors in judgment or discretion.
An employee who has been terminated because of gross misconduct will have all hourly wage credits based on that employment or 680 hours of wage credits, whichever is greater, canceled. +Wash. Rev. Code § 50.20.066. Gross misconduct means a criminal act in connection with an individual's work for which the individual has been convicted in a criminal court, or has admitted committing, or conduct connected with the individual's work that demonstrates a flagrant and wanton disregard of and for the rights, title or interest of the employer or a fellow employee. +Wash. Rev. Code § 50.04.294(4).
Sexual Misconduct by School Employees
A certificated or classified school employee who has knowledge or reasonable cause to believe that a student has been a victim of physical abuse or sexual misconduct by another school employee must report such abuse or misconduct to the appropriate school administrator. The school administrator must cause a report to be made to the proper law enforcement agency if he or she has reasonable cause to believe that the misconduct or abuse has occurred. During the process of making a reasonable cause determination, the school administrator must contact all parties involved in the complaint. +Wash. Rev. Code § 28A.400.317.
SeaTac Paid Sick and Safe Leave
The City of SeaTac's Setting Minimum Employment Standards for Hospitality and Transportation Industry Employers Ordinance requires employers in hospitality and transportation industries to provide their employees with paid sick and safe leave. The Ordinance also provides an increased minimum wage, job security and other benefits to nonmanagerial, nonsupervisory employees working for covered employers in the hospitality and transportation industries within the City. The City has established a website to provide guidance on compliance with and enforcement of the Ordinance. See Other Leaves: Washington.
Seattle Paid Sick and Safe Time Leave
Employees in Seattle are eligible for paid sick and safe leave under Seattle's Paid Sick and Safe Time (PSST) Ordinance. Effective January 14, 2018, the PSST ordinance has been amended to align with the state's paid sick leave law.
The City of Seattle and all private sector employers with at least one employee working in Seattle must comply with the PSST ordinance. However, employee accrual of sick leave varies depending on the employer's size (i.e., number of full-time equivalent (FTE) employees employed).
Seattle, Washington Municipal Code Sec. 14.16.045; See Other Leaves: Washington.
Seattle Secure Scheduling Ordinance
Seattle recently passed the Secure Scheduling Ordinance seeking to regulate scheduling practices for Seattle retailers fast food employers and coffee shops. See Managing Employees in Special Situations: Federal. Effective July 1, 2017, covered retail and food establishment employers are required to provide employees with good faith estimates of work schedules, including on-call shifts, at the time of hire, advance notice of work schedules and changes to those schedules and the right to request schedule preferences as well as the right to rest between shifts, access to available additional hours and compensation for work schedule changes.
If the scheduling preference relates to a major life event, the employer is required to engage in an interactive process and may request verifying information with adequate notice. However, the employer must grant the request unless a bona fide business reason exists for the denial. The employer's response to the interactive process relating to a major life event must be in writing. A "major life event" is defined as "changes in the employee's transportation or housing; the employee's own serious health condition; the employee's responsibilities as a caregiver; the employee's enrollment in a career-related educational or training program; or the employee's other job or jobs." If the schedule preference does not relate to a major life event, an employer must engage employees in a timely manner in a good faith interaction related to scheduling and an employ may deny the request if the reason for denial is not unlawful.
Spokane Paid Sick Leave
The City of Spokane had enacted an earned sick and safe leave law which remained in effect until the statewide paid sick leave law took effect on January 1, 2018. Spokane, Washington Municipal Code Sec. 09.01.140; see Other Leaves: Washington. Employers in Spokane should ensure they are compliant with the state law.
Tacoma Paid Sick Leave
The City of Tacoma enacted the Tacoma Paid Leave Ordinance (TPLO) that took effect February 1, 2016, or upon expiration of any collective bargaining agreement in effect on this date. The ordinance and the Paid Leave Rules contain all the requirements of the law. The ordinance has been amended to align with the state paid sick leave law. See Other Leaves: Washington; Tacoma, Washington Municipal Code Sec. 18.10.010(J).
Sexual Harassment and Sexual Assault Prevention for Isolated Workers
Washington has strengthened its sexual harassment prevention requirements with respect to certain industries that employ isolated workers. +2019 Bill Text WA S.B. 5258, adding a new section to Chapter 49.60 RCW. See EEO - Harassment: Washington.
The law takes effect:
- January 1, 2020, for hotels and motels with 60 or more rooms; and
- January 1, 2021, for all other covered employers.
The law covers employers in the hotel, motel, retail, security guard and property services contractor industries.
Employer means any person, association, partnership, property services contractor or public or private corporation, whether for-profit or not, who employs one or more persons.
Property services contractor means any person or entity that employs workers:
- To perform labor for another person to provide commercial janitorial services; or
- On behalf of an employer to provide commercial janitorial services.
The term does not include the Employment Security Department or individuals who perform labor under an agreement for exchanging their own labor or services with each other, provided the work is performed on land owned or leased by the individuals.
Security guard means an individual who is principally employed as, or typically referred to as, a security officer or guard, regardless of whether the individual is:
- Employed by a private security company;
- Employed by a single employer; or
- Subject to licensing requirements under Chapter 18.170 RCW. See Rev. Code Wash. (ARCW) § 18.170.010; Rev. Code Wash. (ARCW) § 18.170.030.
Employee means an individual who:
- Spends a majority of work hours alone, or whose primary work responsibility involves working without another co-worker present; and
- Is employed by a covered employer as a:
- Security guard;
- Hotel or motel housekeeper; or
- Room service attendant.
The law requires covered employers to:
- Adopt a sexual harassment policy;
- Provide mandatory training to the employer's managers, supervisors and employees;
- Provide a list of resources for the employer's employees to utilize; and
- Provide a panic button to each employee.
Property services contractors have reporting requirements under the law.
There are no other developments to report at this time. Continue to check XpertHR regularly for the latest information on this and other topics.