The City of Seattle’s temporary emergency rule limits the type of information that an employer can request to verify that employees are eligible to use paid sick time under the Seattle Paid Sick and Safe Time Ordinance (PSST). The Seattle PSST emergency rule automatically sunsets on June 7, unless extended or revoked through formal rulemaking.
Under the PSST before adoption of the emergency rule, an employer could require employee verification when an employee working within the Seattle city limits sought PSST for sick or safe time that exceeded three consecutive working days. If an absence is three days or less, an employer could not request verification.
Previously, for sick time, this generally would require an employee to seek health care provider verification. Under Seattle’s former rules, an employee could then object to verification as an unreasonable burden, and explain how the verification created an unreasonable burden or expense on the employee. If the employer chose not to accept the employee’s statement, the employer could choose to mitigate employee’s out-of-pocket expenses associated with the medical verification, among other possible alternatives.
The new temporary rule essentially suspends this process by declaring that requiring health care provider verifications is a per se unreasonable burden to both the employee and the health care system during the COVID-19 public health emergency. This applies even if an employer offers to pay for the expense to obtain the verification. Nevertheless, under the new rule, an employee remains free to choose to provide a health care provider’s note, if it is available to them.
Additionally, employers are required to identify and provide alternatives that do not result in an unreasonable burden or expense on the employee to meet the employer’s verification requirement. Again, employers may only request, as opposed to requiring, these alternative verification forms after an employee has been absent for three consecutive working days. Seattle’s temporary rule Q&A and updated Q&A provides examples of alternative documentation that should be sufficient:
Seattle’s emergency rule applies only to sick time, it does not change the rules regarding employer verification for safe time. As a reminder, the Seattle rules allow Seattle-based employees to submit the following information to support their request for safe time:
As a result of Seattle’s new emergency rule, HR teams and managers should suspend any practices that require health care verification for sick time. Keep in mind that employees using sick time outside the Seattle city limits will be subject to different rules under state and federal law, including the new Families First Coronavirus Relief Act. For more information, please consult Lane Powell’s COVID-19 Resource Page. Before denying sick leave for reasons related to COVID-19, employers should ensure that they are not inadvertently interfering with or retaliating against employees seeking leave for legally-protected reasons, and should consult with legal counsel in difficult cases to avoid claims.
The authors appreciate the assistance of Angélica González in co-authoring this alert. For more information, consult Lane Powell’s COVID-19 Resource Center or contact Priya Vivian or Katheryn Bradley
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