Changes to paid sick leave for unionized construction workers

From Karen Forner, K-Solutions Law

Very little reporting has focused on a new law, signed by Governor Inslee on April 30, 2019, that significantly changes the Paid Sick-Leave Law (RCW 49.46.210) for construction workers covered by a collective-bargaining agreement. Before this change and since 2018, all workers – regardless of their union membership – were entitled to paid sick-leave benefits paid and administered by their employer.

Now, thanks to the passage of Senate Bill 5233, the Paid Sick-Leave law “shall not apply” to unionized construction workers provided certain conditions are met. These conditions include:

The union signatory to the collective-bargaining agreement is an approved, authorized referral union program for unemployment-compensation purposes (criteria listed in WAC 296210-110 and RCW 50.20.010).
The collective-bargaining agreement establishes equivalent sick-leave provisions to the state’s existing paid sick-leave law, except that “payment of leave . . . may occur before usage.”
The requirements of the state’s paid sick-leave law are expressly waived in the collective-bargaining agreement in clear, unambiguous terms (or in an addendum to an existing agreement, including an agreement that is open for negotiation, so long as the sick-leave portions were previously ratified by the membership).

The Washington legislature expressly declared that its purpose in passing this amendment was to provide flexibility and portability of benefits for construction workers who may work for multiple employers, and it took effect July 28, 2019.

Construction employers should be careful. The amendment does not entirely excuse construction employers from ensuring that employees receive paid sick- and safe-leave benefits. Instead, it permits employers and unions to bargain for alternative payment structures that allow for payment of accrued paid sick leave prior to use while also requiring equivalent sick-leave entitlements. While an alternative payment structure may provide construction-industry employers and employees with more flexibility when bargaining how and when accrued leave will be paid, it presumably still leaves employers responsible for the law’s recordkeeping and notification requirements. Moreover, employees still need to be able access paid sick-leave accruals for the authorized purposes.

It is unclear why the legislature limited this new carve-out only to construction workers instead of all unionized employees. It is also unclear who falls within this exemption, since the law leaves many terms undefined, including “construction workers.” Must these employees work in the field, or do any unionized employees working for a construction company fall within this exemption? The Washington Department of Labor & Industries is currently scoping questions and answers concerning this amendment and plans to share this information with the public in the near future.

In the meantime, construction employers should reach out to friendly union partners to determine whether they intend to pursue changes to their collective-bargaining agreement consistent with this new amendment. Once those changes are made, employers can begin looking at how their existing paid sick-leave policies will apply to construction workers.

Karen Forner is Managing Partner with K-Solutions Law in Bellevue, 425.644.6142.