As of January 1, 2024, certain construction workers and other employees in the construction industry must be paid the balance of their accrued and unused paid sick leave if they separate from employment before they have reached the 90th day of their employment. Under RCW 49.46.210(1)(l) and WAC 296-128-600, these requirements apply to workers who fall under the North American Industry classification code (NAICS) 23. This requirement does not cover workers who perform work solely in residential building construction (NAICS Code 2361).

Frequently asked questions on paid sick leave separation payments in the construction industry

    Which workers must receive paid sick leave balance payouts following separation?

    Any nonexempt workers covered under the 2022 NAICS industry Code 23 who have not reached the 90th calendar day of employment before separation. This includes workers who work for an employer who performs construction-related work as described in NAICS 23 but are not directly engaged in the construction work itself, such as nonexempt administrative staff. Workers who perform work limited to work described in NAICS 2361 are exempt from this requirement.

    I pay construction workers covered by a CBA for paid sick leave before it is used, under the requirements of RCW 49.46.180. Do I have to meet the separation payout requirements?

    Under most circumstances, no. However, if the applicable worker has any outstanding balance of accrued sick leave that has not been paid yet, the payment is owed following separation.

    What if the worker works in both residential and commercial construction?

    If the nonexempt worker covered under NAICS 23 performs work in both residential and non-residential NAICS codes, the separation payout requirements apply.

    If our business does not denominate itself under NAICS Code 23 but has a worker who engages in construction work described in NAICS 23, do I have to pay paid sick leave following separation?

    The worker is likely covered. Unless the worker is performing duties entirely outside of NAICS 23, they are likely protected by the requirements.

    Do I have to pay out sick leave for both involuntary and voluntary separations?

    Yes. “Separation” and “separates from employment” mean the end of the last day a worker is authorized or required by the employer to be on duty on the employer's premises or at a prescribed workplace. Workers who quit or are terminated are entitled to this payout regardless of the circumstances of their separation.

    Do I have to pay out sick leave if a worker is placed on stand-by for unemployment?

    Generally no. If the worker has a return-to-work date and actually returns to employment, the requirements would not apply to a worker placed on stand-by for unemployment.

    My organization rehires construction workers after they have separated from employment. How should I approach their paid sick leave upon rehire?

    When a worker, who did not reach their 90th calendar day of employment before their separation, is rehired within 12 months of separation whether at the same or a different business location of the employer, any sick leave previously paid out following separation does not need to be reinstated. However, the previous period of employment must be counted for purposes of determining the date upon which the worker is entitled to start using newly accrued paid sick leave. If the worker reached their 90th calendar day of employment before separation, any previously accrued and unused paid sick leave must be available for use upon rehire.

Resources

NAICS manual: https://www.census.gov/naics/reference_files_tools/2022_NAICS_Manual.pdf

Statutes: RCW 49.46.210, RCW 49.46.180

Rules: WAC 296-128-600 through 860