COVID-19: D.C. Expands FMLA to Include “Declaration of Emergency” Leave

Update (October 19, 2022):  The COVID provisions under the D.C. FMLA expired on October 1, 2022.  In addition to passing 90-day emergency bills Act 24-209 and Act 24-319, the D.C. Council passed Act 24-255 which took effect on February 18, 2022 and by its terms expired 225 days later, on October 1, 2022. 

Update (Nov. 19, 2021):  D.C. passed Section 3(c) of Act 24-168, which effectively ended the COVID-19 D.C. FMLA amendments effective November 5, 2021, and subsequently passed Section 3 of Bill 24-404, which revised the COVID-19 D.C. FMLA provisions.

Update (August 6, 2021): On August 2, 2021, the D.C. Office of Human Rights again published Enforcement Guidance further interpreting the COVID-19 leave requirements under the D.C. FMLA. Here is the updated mandatory poster.

Update (June 9, 2021):  On June 8, 2021, the D.C. Office of Human Rights published Enforcement Guidance further interpreting the COVID-19 leave requirements under the D.C. FMLA.

Update (Aug. 20, 2020):  After the below article was published, D.C. amended the law to clarify a number of questions left unanswered.  Here are the most significant updates:

• The leave is now called “COVID-19 leave” rather than “Declaration of Emergency leave.”
• COVID-19 leave is available for an employee who is unable to work due to: (1) A recommendation from a health care provider that the employee isolate or quarantine, including because the employee or a household member is at high risk for serious illness from COVID-19; (2) a need to care for a family member or household member who is under a government or health care provider's order to quarantine or isolate; or (3) a need to care for a child whose school or place of care is closed or whose childcare provider is unavailable to the employee.
• Employees are entitled to 16 weeks of COVID-19 leave.
• An employer may require certification of the need for COVID-19 leave as follows: (1) If the leave is based on the recommendation of a health care provider, a written, dated statement from a health care provider stating that the individual has such need and the probable duration of the need for leave; and (2) if the leave is needed because a school, place of care, or childcare provider is unavailable, a statement by the head of the agency, company, or childcare provider stating such closure or unavailability, which may include a printed statement obtained from the institution's website.
• Employers must maintain group health benefits just like traditional D.C. FMLA.
• Employees are entitled to restoration of employment just like traditional D.C. FMLA.

Details of the leave requirements are provided in D.C. Code § 32-502.01.

On March 17, 2020, the District of Columbia amended the D.C. Family and Medical Leave Act to create a new category of protected leave, called “Declaration of Emergency Leave.” This amendment affects every employer with at least one employee who works in D.C.

D.C. has long had a local analogue to the federal Family and Medical Leave Act, called the D.C. Family and Medical Leave Act (the D.C. FMLA). The D.C. FMLA generally provides greater eligibility and leave rights than the FMLA. On March 17, the D.C. Council amended the D.C. FMLA to create a new category of protected leave, called “Declaration of Emergency” leave. This alert (1) offers a high-level summary of the D.C. FMLA; (2) explains the new Declaration of Emergency leave amendment; (3) discusses how this new amendment affects employers’ existing obligations under local and federal laws; and (4) describes selected additional legislative developments in D.C. in response to the COVID-19 pandemic.

D.C. FMLA Summary

The D.C. FMLA provides job-protected, unpaid leave for certain employees who need to take medical leave or family leave. Whereas the FMLA generally provides for 12 weeks of leave (or 26 weeks of leave to care for a covered service member) in a 12-month period, the D.C. FMLA generally provides eligible employees with 16 work weeks for medical leave purposes and 16 work weeks for family leave purposes in a 24-month period. An eligible employee may take both up to 16 weeks of medical leave and up to 16 weeks of family leave during the same 24-month period. For details, see this summary of key differences between the FMLA and the D.C. FMLA.

COVID-19 Response Emergency Amendment Act of 2020

On March 17, D.C. Mayor Muriel Bowser signed D.C. Act 23-247, the COVID-19 Response Emergency Amendment Act of 2020 (the Act). The Act amended the D.C. FMLA to create a new category of leave called “Declaration of Emergency” leave, or “DOE leave.”

The Act includes few specifics about how DOE leave is administered, but does expressly provide the following:

• DOE leave is available, during a public health emergency declared by the mayor, to employees who are unable to work as a result of the circumstances giving rise to the public health emergency.
• The one-year-of-service and 1,000-hour requirements that apply to family leave and medical leave under the D.C. FMLA do not apply to any employee who has been ordered or recommended to quarantine or isolate by the Department of Health, any other D.C. or federal agency, or a medical professional.
• Whereas the D.C. FMLA applies only to employers of 20 or more employees in D.C., DOE leave applies to any employer, regardless of the number of people it employs in D.C.
• The amount of DOE leave is not specified; rather, DOE leave is available during a period of time for which the mayor has declared a public health emergency.
• Certification of the need for DOE leave is established by a recommendation from the mayor, Department of Health, any other D.C. or federal agency or a medical professional that the employee self-quarantine or self-isolate.
• In the case of a government-mandated quarantine or isolation, the declaration of a public health emergency serves as certification of the need for such leave.

The Act provides no additional information about DOE leave, and cautious employers should assume that other relevant provisions of the D.C. FMLA apply to DOE leave:

• Employers may not interfere with DOE leave or retaliate against an employee for taking DOE leave.
• DOE leave applies only to employees who work within the District of Columbia (defined generally as spending more than 50 percent of work time in D.C. or being based in D.C. and regularly spending a substantial portion of time working in D.C.)

However, several provisions of the D.C. FMLA expressly specify that they apply only to “family leave” or “medical leave,” without addressing DOE leave. Thus, absent additional regulations, it is unclear the degree to which the D.C. Office of Human Rights will interpret such laws as applying to DOE leave.

• Presumably, DOE leave may be unpaid, even for exempt employees.
• It is clear that for family leave or medical leave under the D.C. FMLA, employees must not lose any employment benefit or seniority accrued before such leave. The Act does not expressly extend such protections to DOE leave.
• For employees on family leave or medical leave, employers may require employees to continue to make contributions to a group health plan that the employee would have made if the employee had not taken such leave. The Act is silent regarding whether employers may require employees to make such contributions while on DOE leave.
• Upon return from family leave or medical leave, the employee must be restored to either (1) the position held when the leave commenced; or (2) a position equivalent to the position held when the leave commenced that includes equivalent employment benefits, pay, seniority and other terms and conditions of employment. The Act does not expressly extend such protections to DOE leave.

The D.C. Office of Human Rights may publish regulations addressing these or other aspects of DOE leave.

Interaction With the Families First Coronavirus Response Act

The Families First Coronavirus Response Act (FFCRA) was signed into law on March 18, 2020. Key provisions of that law are explained in greater detail in a March 20 McGuireWoods alert.

Most relevant to the new D.C. Act, FFCRA provides up to two weeks (80 hours for full-time employees) of emergency paid sick leave to employees who are unable to work (or telework) due to a need for leave because (among other reasons): (1) the employee is subject to a federal, state or local quarantine or isolation order related to COVID-19; or (2) the employee has been advised by a healthcare provider to self-quarantine due to concerns related to COVID-19. Accordingly, in many circumstances an employee eligible for DOE leave associated with the COVID-19 pandemic will be eligible for two weeks of paid leave pursuant to FFCRA.

Employers will need to evaluate whether the circumstances entitle an employee to either or both DOE leave and FFCRA sick leave. Eligibility for these types of leave may overlap in some circumstances; in others, they will not.

The Act Modifies Unemployment Requirements

In addition to creating DOE leave, the COVID-19 Response Emergency Amendment Act of 2020 also modified the D.C. Unemployment Compensation Act for “affected employees” in a number of ways. An “affected employee” means an employee otherwise eligible for unemployment who has become “unemployed or partially unemployed” because of the declared public health emergency, including employees who are: (1) under a quarantine or isolation order; (2) self-quarantined or self-isolated; or (3) employed by an employer that ceased or reduced operations as a result of the public health emergency or an order or guidance from the mayor or Department of Health.

Such affected employees:

• are not required to search for work in order to maintain eligibility for unemployment; and
• are eligible for unemployment regardless of whether the employer has provided a date certain for the employee’s return or the employee has a reasonable expectation of re-employment.

Employees are eligible for unemployment if they resign voluntarily for “good cause.” Under the COVID-19 Response Emergency Amendment Act of 2020, “good cause” is expanded to include these situations:

• An employer fails to timely comply with a written directive from the mayor or Department of Health regarding public safety measures necessary to protect its employees or the public during a public health emergency.
• An employer requires that an employee be physically present in the workplace, despite the employee having been: (1) quarantined or isolated by the government; or (2) self-quarantined or self-isolated in a manner consistent with the recommendations or guidance of the Department of Health, or any other applicable D.C. or federal agency, or a medical professional.

Update: The D.C. Office of Human Rights has published the poster that employers are required post in a conspicuous location regarding Declaration of Emergency Leave.  Failure to do so may result in a civil penalty of up to $100 per day.

For more information about the COVID-19 Response Emergency Amendment Act of 2020 or any other aspect of D.C. employment law, contact the authors of this article.

McGuireWoods has published additional thought leadership related to how companies across various industries can address crucial COVID-19-related business and legal issues.