In Washington, an employer may seek a variance from paid sick leave increments by written application to the department, according to Washington State Legislature. The department must issue a written decision no later than sixty days after it receives that application, according to Washington State Legislature. A request for reconsideration may be filed within fifteen days after receiving notice of the variance determination, according to Washington State Legislature. Unless subject to the reconsideration process, the director may revoke or terminate the variance order at any time after giving the employer at least thirty days' notice, according to Washington State Legislature.
Key takeaways
- a variance is sought by written application to the department, according to Washington State Legislature.
- the sixty-day decision period is counted from the date the department received the application, according to Washington State Legislature.
- the fifteen-day reconsideration period is counted from the day notice of the variance determination is received, according to Washington State Legislature.
- the thirty days' notice comes before revocation, unless the order is subject to the reconsideration process, according to Washington State Legislature.
- a temporary variance is tied to cases where immediate action is necessary, according to Washington State Legislature.
What a sick leave variance is
The variance in this rule concerns increments. An employer may seek a variance from the requirement to provide employees with paid sick leave in increments greater than the increments required by WAC 296-128-630(4), according to Washington State Legislature. Before drafting an application, compare the increment your timekeeping setup records with the increment the rule sets, so the request describes the gap precisely.
The rule also names a factor for good cause. The existence of a collective bargaining agreement which sets forth increments of use may be used as a factor in determining good cause for granting a variance from the increments required by WAC 296-128-630(4), according to Washington State Legislature. The wording is "may be used as a factor," which differs from saying the agreement decides the question. If your workplace has such an agreement, keep a copy with the application file.
The rule quoted here is Washington's. Do not assume it applies in another state. A timeline drawn from this rule is also not a forecast of how the department will rule on any application. Related reading on sick leave call-outs: see the sick leave call outs guide.
The sixty day decision window
No later than sixty days after the date on which the department received the application for a variance, the department must issue a written decision either granting or denying the variance, according to Washington State Legislature. The count begins when the department receives the application, not when the employer sends it. If the file shows the sending date but not the date the department received the application, add that date as a separate entry before calendaring anything.
The phrase "no later than" sets an outer limit. It is not a target date, so a manager who wants the answer sooner can plan review work for earlier in the window.
The department must also allow the employer, any involved employees and, if applicable, their union representatives, the opportunity for oral or written presentation during the variance application review process whenever circumstances of the particular application warrant it, according to Washington State Legislature. The rule ties that opportunity to the circumstances of the particular application, so do not assume one will be offered in every file. If one is held, log its date and whether it was oral or written.
When the department makes a determination to issue a variance, it must notify the employer in writing and, if applicable, the union representatives of any involved employees, according to Washington State Legislature. That written notice is the document whose arrival starts the fifteen-day reconsideration window, so keep the notice itself in the file.
A practical log for this window should hold the date the department received the application, the presentation date and form if one occurred, the decision date, and the date written notice arrived. Keep the decision with the application so both can be reviewed together, and keep the notice itself rather than only a note of its date. When the decision arrives, check that its wording states one of the two outcomes the rule names, granting or denying.
Illustrative example: counting from the right date
Suppose a payroll lead sends an application on day 0, and the department gets it on day 5. The sixty-day decision count starts on day 5, not day 0, so the log should record both dates and mark day 5 as the start. These dates are illustrative only and are not a forecast of any real file.
The fifteen day reconsideration window
An employer, involved employee and, if applicable, their union representative may file with the director a request for reconsideration within fifteen days after receiving notice of the variance determination, according to Washington State Legislature. The window is measured from receiving notice, so the arrival date of the notice belongs in the file beside the decision.
The rule names three possible filers: the employer, the involved employee, and, where applicable, a union representative. A payroll lead handling the file should confirm with the employer's HR contact, or the union contact where one exists, who will file. That confirmation is an editorial recommendation.
The rule measures from the date notice is received, according to Washington State Legislature, so record that date rather than the date the notice was issued. Write it at the top of the reconsideration entry, and count forward from that entry rather than from memory.
Where the notice reaches more than one party, record each arrival date separately. The rule lists the employer, the involved employee and the union representative in one sentence, so a single date may not describe every party's arrival. Keep any reconsideration request with the decision and the notice, so the dates can be checked together.
Related reading on approving hours: the timesheet approval and edit rules guide.
The thirty day revocation notice
Unless subject to the reconsideration process, the director may revoke or terminate the variance order at any time after giving the employer at least thirty days' notice before revoking or terminating the order, according to Washington State Legislature.
Before planning around any revocation date, check whether a reconsideration request is open on the same order. The exception depends on that status, so a timeline built without the check may not match the file. This check is an editorial recommendation.
Anchor the thirty-day count to the date notice was given to the employer, according to Washington State Legislature. A note of when a manager first heard about a possible revocation is a different event, so do not use that date as the starting point.
The rule uses the words "at any time" for when the director may revoke or terminate, according to Washington State Legislature. Because revocation can come at any time, keep the revocation or termination notice with the variance decision and record the date it was given. If an order is revoked or terminated, keep the order and that notice together so the thirty-day interval can be checked afterward.
Temporary variances
The department may issue a temporary variance where immediate action is necessary pending further review by the department, according to Washington State Legislature. The trigger is immediate action. Use that test to decide whether the route applies, rather than as a way to handle an ordinary scheduling problem.
An employer need not meet the requirement in subsection (2)(d) of this section in order to be granted a temporary variance, according to Washington State Legislature. Read the full section, including subsection (2)(d), before relying on this route.
Before relying on the route, write down the immediate action that makes it necessary. That note is the basis for the request, and it should be dated so it can be compared with the timing of the department's review.
Keep temporary variance paperwork in its own part of the file, apart from the final decision. Keeping the temporary paperwork dated and separate makes the sequence clear to anyone who reviews the file later. Do not fill in a duration from memory. Use the written department paperwork as the source for any end date.
How leave counts toward hours
The increment provisions quoted here do not address how sick leave counts toward hours, so that question needs a separate source for each state.
The Wisconsin page asks whether vacation time or sick leave count toward overtime hours, according to Wisconsin Department of Workforce Development. That is a Wisconsin question, so its answer belongs to Wisconsin's rules.
Do not carry a counting answer from one state into another state's timecards. In the payroll file, note which state's rule was applied to each set of hours, so a reviewer can see the basis for each entry.
New York has a separate notice rule. Section 195.5 of the Labor Law states: Every employer shall notify his employees in writing or by publicly posting the employer's policy on sick leave, vacation, personal leave, holidays and hours, according to New York State Department of Labor. That concerns notice to employees, so it does not change the Washington dates in this article.
Before changing how leave is entered, review the sick leave settings guide.
The table below sets each source's quoted wording beside its page. Each row applies to that publisher's own rule.
| Publisher | Page | Quoted wording |
|---|---|---|
| Washington State Legislature | WAC 296-128-640 | (2) An employer may seek a variance from the requirement to provide employees with paid sick leave in increments greater than the increments required by WAC 296-128-630(4) by submitting a written application to the department. |
| Wisconsin Department of Workforce Development | Hours of Work and Overtime | Does vacation time or sick leave count toward overtime hours? |
| New York State Department of Labor | Wages and Hours Frequently Asked Questions | Section 195.5 of the Labor Law states: Every employer shall notify his employees in writing or by publicly posting the employer's policy on sick leave, vacation, personal leave, holidays and hours. |
Next step: Calendar two dates today: the sixty-day decision date, counted from the day the department received the application, and the fifteen-day reconsideration date, counted from the day you receive the variance notice.
FAQ
How long does the department have to decide a variance?
No later than sixty days after the department receives the application, the department must issue a written decision either granting or denying the variance, according to Washington State Legislature. Check that the decision states one of those two outcomes, and keep the date the department received the application, since that date starts the count.
How long do I have to ask for reconsideration?
An employer, involved employee, or where applicable their union representative may file a request for reconsideration with the director within fifteen days after receiving notice of the variance determination, according to Washington State Legislature. Count from the day notice arrives, not from the day the application was sent.
Can a variance be revoked?
Yes, the director may revoke or terminate the variance order at any time after giving the employer at least thirty days' notice, according to Washington State Legislature. That notice comes first unless the order is subject to the reconsideration process, so check the reconsideration status before setting any revocation date.
What is a temporary variance?
The rule also says an employer need not meet the requirement in subsection (2)(d) of this section in order to be granted one, according to Washington State Legislature. Read the full section before relying on it.