Legal Updates

9/9/2008

Washington, D.C. Passes Law Making Paid Leave Mandatory

Washington, D.C. recently became the second municipality in the nation to require employers to provide certain types of paid leave to employees. The Accrued Sick and Safe Leave Act of 2008 (“ASSLA” or the “Act”) becomes effective November 13, 2008, and requires all employers to provide paid sick leave to eligible employees working in the District for absences related to physical or mental illness, preventive medical care or family care. Additionally, ASSLA requires employers to provide paid “safe” leave for absences associated with stalking, domestic violence or sexual abuse. Although all D.C. employers – regardless of size – are covered by the Act, some businesses may be excused pursuant to the Act’s “hardship exemption.”

Paid Leave Provisions

Under the Act, eligible employees accrue leave based on the size of their employer and the number of hours they work:

  • Employers with 100 or more employees must provide at least one hour of paid leave for every 37 hours worked, up to seven days per year.
  • Employers with 25 to 99 employees must provide at least one hour of paid leave for every 43 hours worked, up to five days per year.
  • Employers with 24 or fewer employees must provide at least one hour of paid leave for every 87 hours worked, up to three days per year.

Unused accrued leave carries over each year, but in any given year, employees may not use more than the maximum leave that they could earn in that year. Employees do not need to be paid for any unused leave when they separate from employment. However, employees who are terminated from employment and rehired within 12 months may access immediately any leave they accrued prior to their separation date.

Employee Obligations and Exemptions

Employees who request leave that is foreseeable must submit a written request 10 days in advance. Further:

  • Employees submitting requests for medical appointments must make a “reasonable effort” to schedule leave such that it does not “unduly disrupt the operations of the employer.”
  • If the request for leave is unforeseeable or an emergency, employees may submit their requests orally.
  • Employers may require employees seeking three or more consecutive days of paid leave to provide appropriate certification supporting the reason for leave.

There are several important employee exemptions in the Act. ASSLA does not apply to restaurant wait staff or bartenders who receive income based on a combination of tips and wages. The Act also does not apply to independent contractors, most student work/study arrangements, or health care workers who choose to participate in premium pay programs.

Notice Requirements

Employers are required to post a notice, which should be forthcoming from the District of Columbia Mayor’s Office, setting forth a summary of ASSLA and complaint procedures. An employer’s failure to comply with this notice requirement may result in a civil penalty. ASSLA also prohibits employers from retaliating against employees who exercise their rights under the Act. However, employers are not prohibited from establishing policies relating to improper use of paid leave.

Ensuring Compliance with the Act

Employers who currently have a paid time off or universal leave program that is at least as generous as ASSLA, and can be used for the same reasons as provided for in the Act, do not need to modify their policy. However, given the Act’s provision of paid “safe” leave – which could include absences relating to relocation, taking legal action, or obtaining help from a victim services organization – many employers will need to revise their policies to ensure that paid leave may be taken for reasons stated under the Act.

Accordingly, all employers with existing paid leave policies should review them now to ensure that they grant employees sufficient paid leave for the reasons enumerated in ASSLA. Employers who do not presently provide paid leave to employees will need to have such policies in place on or before November 13, 2008, the date the Act goes into effect.

Unresolved Issues in the Act

ASSLA contains some significant inconsistencies and ambiguities of which employers should be aware. For example, the length of the waiting period before employees can access paid leave is unclear. On the one hand, the Act states employees can begin accessing paid leave after they have been employed for 90 days. On the other hand, the Act’s definition of an eligible “employee” is identical to that used in the District of Columbia Family and Medical Leave Act, which defines an employee as one who has worked for the employer for at least one year and who has worked at least 1,000 hours. Therefore, it is not clear whether the waiting period is 90 days or one year. Although legislative history indicates the waiting period should be one year, this important issue still needs to be resolved through interpretive regulations that have not yet been issued by the D.C. Department of Employment Services (DOES).

The Act also does not address whether employees who work both inside and outside the District will “count” in determining the size of the employer and rate of leave accrual. This ambiguity also leaves open the question of whether these dual-jurisdiction employees may accrue and use leave on the same basis as employees who work in the District full-time.

McGuireWoods Webinar

McGuireWoods is currently serving on a D.C. Chamber of Commerce committee to draft proposed regulations for consideration by DOES. The firm is also communicating closely with DOES and D.C.-based businesses to obtain the best available information on the Act’s unresolved issues.

McGuireWoods will provide a full overview of ASSLA, as well as best practices and tips for complying with the Act, in a one-hour, complimentary Webinar: “The New D.C. Accrued Sick and Safe Leave Act,” to be held on September 25, 2008 from 12:30 to 1:30 ET. Online registration is available.

For further information or assistance in complying with the Act, please also contact any member of the McGuireWoods Labor & Employment or Employee Benefits Teams.

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