Washington State Mandates Paid Sick Leave for All Agricultural Workers — Even for Companies Exempt from the FFCRA

Aug 18, 2020

By Aviva Kamm | Related Practices: Agriculture and Employment

Updated August 28, 2020

Proclamation 20-67 - Food Production Workers Paid Leave requires agricultural employers to provide up to 80 hours of paid leave to food production workers who meet criteria between August 18 and November 13, 2020. These dates appear to have been selected to provide paid leave during Washington’s apple harvest.

Employers, be sure to read the last section of this article, which outlines critical deadlines in the process to be reimbursed by the state for amounts you pay to workers under this program. The first deadline is September 7, 2020.

Program Guidelines, Sample Leave Request Forms, and Reporting Templates are all available at the Department of Commerce’s website.

Eligibility

Which employers must offer emergency supplemental paid sick leave?

This proclamation applies to all agricultural employers. In this instance, “agricultural employers” is more inclusive than definitions in other laws. Covered employers include growers, warehouses, dairies, meatpackers, and other agricultural production and packing operations. It includes warehouses and other packers, whether packing produce grown by the owner or by a different entity. And it also includes farm labor contractors (FLC) that are paying workers wages. There is no size maximum or minimum, so unlike the federal emergency leave law, employers of 500 or more employees must still offer emergency supplemental paid sick leave.

Which employees are entitled to emergency supplemental paid sick leave?

All food production workers who have started working for a covered employer are entitled to leave. This includes domestic workers who are domiciled in Washington, “seasonal or migrant workers” as defined by the federal Migrant and Seasonal Agricultural Worker Protection Act (MSPA), and temporary foreign workers on H-2A visas. The worker in question does not need to be classified as an employee by the employer’s “hiring entity.” In other words, using labor provided by an FLC or paid by a payroll service or some other arrangement for administrative ease does not sidestep the obligation to provide the paid leave. Unlike the federal FFCRA, there is no minimum tenure of employment to qualify, so an employee is entitled to take emergency supplemental paid sick leave if they meet qualifying circumstances even on their first or second day of work. However, this leave program is intended to supplement the federal program. Workers entitled to receive paid sick leave under the FFCRA who actually receive that leave if/when they qualify are not entitled to also receive this Washington State emergency supplemental leave.

When can an employee take emergency supplemental paid sick leave?

An agricultural worker is entitled to take up to two weeks (14 days) of paid sick leave between August 18 and November 13, 2020 upon the occurrence of any of the following events:

  • The Covered Worker is subject to a federal, state or local quarantine or isolation order related to COVID-19;
  • The Covered Worker is advised by a health care official or provider to self-quarantine or self-isolate due to concerns related to, or a positive diagnosis of, COVID-19;
  • The Covered Worker is prohibited from working due to health concerns related to the potential transmission of COVID-19; or
  • The Covered Worker is experiencing COVID-19 symptoms and is seeking a medical diagnosis.

This list of qualifying events mirrors three of the six situations when an employee can qualify for FFCRA leave. The item designated above with italics is new and seems to broaden the availability of leave. For example, it arguably extends leave to a worker who was exposed to the virus through close contact with someone who later developed symptoms, even if that person has not been advised to self-isolate. This broader reach means that more people can request time off, which may be difficult to manage when labor demand already exceeds supply. On the other hand, it may enable an employer to take protective measures by prohibiting exposed workers from working without resistance from employees since the affected workers will receive pay for the missed days.

Remember that an employee who already qualified for FFCRA leave and used that leave is not able to take the supplemental leave; it only applies to workers who are not eligible for FFCRA leave. Also, if an employee has accrued paid sick leave under company policies that satisfy the obligation to provide the state’s regular paid sick leave, that regular paid sick leave must be used before emergency supplemental leave is used.

Does this proclamation give employees an additional 80 hours of paid sick leave in addition to the paid sick leave companies already offer to comply with the state’s paid sick leave law?

The proclamation  is designed to make paid leave available to workers as soon as they begin working, without requiring accrual as the regular state paid sick leave law allows: “Whereas, without certain and immediate access to paid sick leave for absences related to COVID-19, food production workers who may have contracted or been exposed to COVID-19 may feel compelled to work, but with certain and immediate access to paid sick leave, workers will be incentivized to remain home to reduce the potential spread of the virus among workers….”  The proclamation goes on to say that employers “must substitute” emergency supplemental leave with other paid sick leave that is provided, “if that leave is immediately available under the same terms described here.” The Department of Commerce’s FAQ’s state clearly that “The worker must exhaust all other banked leave before becoming eligible for this program.” Thus, if a worker has accrued paid sick leave available, they must use that leave before they are eligible for state-reimbursed supplemental leave. For example, if an employee has accrued 40 hours of paid sick leave, the employer must allow the employee to take up to 80 hours of paid leave for a qualifying reason, 40 hours of which would be the already accrued paid sick leave, to be paid by the company, and an additional 40 hours of which would be emergency supplemental paid sick leave, which would be initially paid for by the company, and then reimbursed by the state.

Can employees take both FFCRA and emergency supplemental paid sick leave?

The proclamation’s intent appears to be to create up to 80 hours of leave for workers who are not able to utilize the federal FFCRA leave. The Department of Commerce’s FAQ’s state clearly that “The worker must exhaust all other banked leave before becoming eligible for this program.”  However, it is possible that if an employer’s total workforce was less than 500 at the time an employee took FFCRA leave, and has now increased to above 500, making the employee ineligible for FFCRA leave based on the employer’s size, then an employee with qualifying circumstances could argue she is entitled to the additional emergency supplemental paid sick leave.

Until when is the emergency supplemental paid leave available?

The state will only reimburse leave taken on or between August 18, 2020 and November 13, 2020. Employers are not required to provide paid supplemental sick leave after November 13, 2020.

Amount of Pay and Amount of Leave

How much must employees be paid?

Employees may take up to 80 hours total leave, at a rate of $430 for 40 hours/$860 for 80 hours. This is an hourly rate of $10.75. The amount is reduced pro rata on a formula for workers who are scheduled to work less than 40 hours in the two weeks immediately preceding when they take leave.

Employees must be paid for the leave within one pay period after the employee returns to work.

May employees use emergency supplemental paid sick leave intermittently?

The proclamation does not specifically address whether the leave can be used intermittently. A common-sense reading, taken alongside a court ruling interpreting the FFCRA’s similar language, suggests that the leave can be taken in individual blocks of time for each qualifying reason: “An employee taking leave…must take his or her leave consecutively until his or her need for leave abates. But once the need for leave abates, the employee retains any remaining paid leave, and may resume leave if and when another qualifying condition arises.” State of New York v. U.S. Department of Labor, case number 1:20-cv-03020 (August 3, 2020). There is no limit in the proclamation that requires leave be taken in full day increments. Thus, for example, if an employee arrives at work and works for two hours before developing symptoms and leaving work early, the employer must offer emergency paid sick leave for the remainder of the workday on which the employee went home early.

Enforcement

What is the penalty for denying leave?

The proclamation prohibits retaliation against an employee who uses or seeks to use emergency supplemental paid sick leave. Though the proclamation does not spell it out, by analogy to the state’s paid sick leave law, damages for violations could include lost wages for missed days, lost wages in the event of wrongful termination, doubling of unpaid sick leave as a penalty, civil penalties, and attorneys’ fees.

What and how are employers expected to notify their workers about this leave?

The proclamation does not impose specific notification requirements. Unless specific requirements are promulgated, we recommend delivering a basic summary to employees that includes the qualifying events for leave, the amount of leave available, and a phone number to call in order to request emergency supplemental paid leave. This summary should be provided in a method designed to be received and understood by the workers and consistent with other employer efforts to communicate with the workforce. This might include all or some of the following: announcements by crew leads, ranch managers, or supervisors at safety meetings or daily work assignments; signs posted on bulletin boards, signs posted near bathrooms, entrances, or similar visible locations; pages inserted in paycheck envelopes or handed out with paychecks; or by text message announcement.

Reimbursement

How will employers claim reimbursements for leave be paid to employees?

The Department of Commerce has outlined Program Guidelines for employers who wish to be reimbursed for leave payments to workers.

The Program Guidelines, Template Leave Request Forms, and Reporting Templates are all available at the Department of Commerce’s website.

Key deadlines include:

  • September 7, 2020: Initial Application due to Department of Commerce
  • September 30, 2020: First Report Due, identifying the total number of workers who received paid leave and the total amount paid as of September 16, 2020
  • October 30, 2020: Second Report Due, identifying the total number of workers who received paid leave and the total amount paid between September 17, 2020 and October 16, 2020
  • November 30, 2020: Reimbursement Request Due
  • December 2020: Reimbursements Processed

Contact Aviva Kamm, Sarah Wixson or any member of Stokes Lawrence’s Employment Group for help following these requirements or applying for reimbursement.