Update (Aug. 26, 2020): After the below article was published, D.C. amended the law. Here are the
most significant updates:
- The leave is now called “public emergency leave” rather than “Declared
- At the employee’s discretion, the employee may use public emergency leave
either concurrently with or after exhausting other paid leave provided by
law or employer policy.
- If the employee elects to use public emergency leave concurrently with
other paid leave, the employer may reduce the monetary benefit of the
public emergency leave by the amount of the monetary benefit the employee
will receive under law or employer policy.
- If the employee elects to use public emergency leave after exhausting
other paid leave, the employer may reduce the number of hours of public
emergency leave by the number of hours of paid leave taken under law or
Details of the leave requirements are provided in
D.C. Code § 32-531.02a.
On April 10, 2020, the District of Columbia passed Act 23-286, the COVID-19 Response Supplemental Emergency Amendment Act of 2020.
Among many other things, the new law amends the D.C. Accrued Sick and Safe Leave Act (ASSLA) to create a new category of paid leave called “Declared Emergency Leave.” This is in addition to the March 17, 2020, amendment of the D.C. Family and Medical Leave Act (D.C. FMLA) that created “Declaration of Emergency” leave, which McGuireWoods discussed in a previous legal alert.
ASSLA is a D.C. law that requires employers to provide covered employees with paid leave for certain purposes, primarily to care for themselves and their family members in the event of a sickness, stalking, domestic violence or sexual assault.
The COVID-19 Response Supplemental Emergency Amendment Act of 2020 creates a new category of ASSLA leave called “Declared Emergency Leave.” Employers now must provide paid leave to employees for any covered reason provided by the Families First Coronavirus Response Act (FFCRA). This leave appears to be in addition to: (1) leave provided by FFCRA; (2) leave provided by D.C. FMLA; and (3) leave provided by the employer’s policies.
The below discussion analyzes key features of the new law, as published. The D.C. Department of Employment Services may issue regulations interpreting or further clarifying the new law in the future.
Covered Employers. Companies employing between 50 and 499 people must provide Declared Emergency Leave to D.C. employees. This is different from “traditional” ASSLA, which: (1) pertains to all D.C. employers regardless of size; and (2) scales the leave entitlement depending on the size of the employer.
ASSLA’s usual employer-size requirements turn on the number of employees working in D.C. For Declared Emergency Leave, however, it is unclear that the 50 to 499 employees must all work in D.C. to trigger the law’s application, or whether the new law applies to any employee who works in D.C. so long as the employer employs between 50 and 499 employees nationwide. Subsequent regulations may clarify this issue.
Exemption for Healthcare Providers. Healthcare providers are exempt from providing Declared Emergency Leave. For purposes of Declared Emergency Leave, healthcare provider is defined as any doctor’s office, hospital, healthcare center, clinic, post-secondary educational institution offering healthcare instruction, medical school, local health department or agency, nursing facility, retirement facility, nursing home, home healthcare provider, any facility that performs laboratory or medical testing, pharmacy, or any similar institution, employer or entity. This includes any permanent or temporary institution, facility, location or site where medical services are provided that are similar to such institutions.
This definition is similar, but not identical, to the definition of healthcare provider in the FFCRA regulations. First, FFCRA defines a healthcare provider as a class of employees, not the employer. Second, FFCRA’s definition includes the above but also includes: (1) additional individuals employed by entities that contract with these institutions or who provide medical services, produce medical products, or otherwise are involved in the making of COVID-19-related medical equipment, tests, drugs, vaccines, diagnostic vehicles or treatments; and (2) any individual that the highest official of a state or territory, including the District of Columbia, determines is a healthcare provider necessary for that jurisdiction’s response to COVID-19.
Eligible Employees. An employee is eligible to take Declared Emergency Leave if the employee commenced work for the employer at least 15 days before the request for leave. This is different from other ASSLA leave, which begins accruing immediately but is accessible only after 90 days of employment.
Reasons for Leave. Declared Emergency Leave is available to an employee absent from work due to any of the six FFCRA-protected reasons. Those reasons are explained in greater detail in a previous McGuireWoods alert.
Amount of Leave. An employee is entitled to Declared Emergency Leave in an amount sufficient to ensure that the employee is able to remain away from work for two full weeks of work, up to 80 hours or, for a part-time employee, the usual number of hours the employee works in a two-week period. This is substantially more leave than other ASSLA leave, which for the largest employers is capped at seven days per calendar year.
Accrual. Unlike other ASSLA leave, Declared Emergency Leave does not accrue over time.
Compensation During Leave. An employee is paid for Declared Emergency Leave at the employee’s regular rate of pay. In the case of an employee who does not have a regular rate of pay, the employee’s rate of pay is determined by dividing: (x) the employee’s total gross earnings (including all tips, commissions, piecework or other earnings accrued on an irregular basis) for the most recent two-week period the employee worked; by (y) the number of hours the employee worked during that two-week period. This must be at least equal to the D.C. minimum wage.
Employee’s Notice to Employer. An employer can require an employee to provide notice of the need to use Declared Emergency Leave, but cannot require such notice to be provided more than 48 hours in advance of the need for such leave. If the need for leave is an emergency, the employer can require only “reasonable” notice (which still must be no more than 48 hours’ notice).
Certification of Need for Leave. An employer may require an employee to provide certification of the need to use Declared Emergency Leave only if: (1) the employer contributes payments toward a health insurance plan on behalf of the employee; and (2) the employee uses three or more consecutive working days of paid leave. If the employer requires certification, the employee cannot be required to provide the certification until one week after the employee’s return to work. The new law does not identify what certification is permitted or required; employers may consider drawing on the FFCRA certification requirements.
No Retaliation. An employer may not retaliate against an employee who seeks Declared Emergency Leave. This prohibits the employer from threatening the employee, issuing verbal or written warnings, or otherwise retaliating against the employee.
No Worker Substitution Search. An employer may not require an employee who needs Declared Emergency Leave to search for or identify another worker to perform the employee’s work during the leave.
Interaction With Other Leave Availability. Employers may require that an employee exhaust any available leave under federal or D.C. law or an employer’s own policies prior to using Declared Emergency Leave. If an employee uses all of the Declared Emergency Leave available and subsequently informs the employer of the employee’s continued need to be absent from work, the employer must inform the employee of any paid or unpaid leave to which the employee may be entitled pursuant to federal law, other D.C. law or the employer’s own policies.
Note that FFCRA prohibits employers from requiring an employee to use other employer-provided paid leave before the employee uses FFCRA paid sick leave. Accordingly, it appears that Declared Emergency Leave may be additional to: (1) the leave provided by FFCRA; (2) the 16 weeks of leave provided by D.C. FMLA (as modified on March 17, 2020, by Act 23-247); and (3) leave provided by the employer’s policies. Employers will need to analyze the patchwork of available leave entitlements when determining the sequencing of leave to which an employee may be entitled under the circumstances.
Duration of Applicability. Declared Emergency Leave is available only during the COVID-19 emergency, which means the emergencies declared in the mayor’s March 11, 2020, Declaration of Public Emergency and Declaration of Public Health Emergency, including any extension of those declared emergencies.
Violations. The new law requires the D.C. mayor to provide an employer who violates this new law with an opportunity to cure such violation within five business days from the date the employer is notified in writing of the potential violation of the law. Under ASSLA, employees may file a lawsuit and claim lost wages, compensatory and punitive damages, and attorneys’ fees, among other categories of damages.
Record Keeping. The new law does not provide record-keeping requirements separate from those already included in ASSLA. Under ASSLA, employers must retain records documenting hours worked by employees and paid leave taken by employees for a period of three years or the prevailing federal standard at the time the record is created. If the employer does not maintain or retain adequate records documenting hours worked by the employee and paid leave taken by the employee, a rebuttable presumption exists that the employer has violated the ASSLA.
For more information about the COVID-19 Response Supplemental Emergency Amendment Act of 2020 or any other aspect of D.C. employment law, please contact the authors of this article or your McGuireWoods labor and employment contact.
McGuireWoods has published additional thought leadership related to how companies across various industries can address crucial COVID-19-related business and legal issues.