August 17, 2020
On Aug. 13, 2020, the District of Columbia enacted the Protecting Businesses and Workers from COVID-19 Emergency Amendment Act of 2020. The new law requires D.C. employers to implement social distancing and worker protection policies that adhere to the mayor’s July 22, 2020, Order 2020-080, titled “Wearing of Masks in the District of Columbia to Prevent the Spread of COVID-19” (the mask order). Employers must implement these policies no later than Aug. 20, 2020.
The new law also prohibits employers from retaliating against an employee because the employee: (1) tests positive for or is quarantining because of COVID-19; (2) is caring for someone who has symptoms of or is quarantining because of COVID-19; (3) attempts to exercise any right under the act; or (4) acts to prevent a violation of the act.
Workplace Protection Provisions
The new law requires D.C. employers to implement policies that adhere to the mask order’s requirements:
Exceptions to the mask requirement exist. For example, the law does not require masks when: (1) an employee is in an enclosed office that no one else is permitted to enter; (2) a person is unable to wear a mask due to a medical condition or disability; (3) an employee is physically unable to remove a mask; or (4) required job equipment precludes wearing a mask.
The new law allows employers to require employees to report a positive COVID-19 test, but makes clear that an employer may not disclose the identity of an infected employee except to the Department of Health or another appropriate district or federal agency.
The law requires employers to adopt social distancing policies, but does not clarify what policies are compliant. Presumably, policies and procedures that limit unnecessary interaction between people within 6 feet and require face masks within 6 feet would comply. The mayor may issue additional guidance to clarify what policies employers must implement.
The new law prohibits employers from retaliating against an employee who refuses to work under conditions that do not comply with the social distancing and worker protection requirements of the law, or for exercising his or her rights under the law. For example, employers may not take adverse employment action against an employee who refuses to serve a customer or client, or work within 6 feet of an individual, who is not complying with workplace protections. It also prohibits employers from retaliating against an employee because: (1) the employee tested positive for COVID-19; (2) the employee was exposed to someone with COVID-19 and needs to quarantine; or (3) the employee is sick and waiting for a COVID-19 test result. Finally, the law prohibits an employer from retaliating against an employee because the employee “is caring for or seeks to provide care for someone who is sick with COVID-19 symptoms or who is quarantined.” If the mayor issues interpretive guidance, it may clarify the scope of this protected activity.
Despite these employee protections, the new law makes clear that an employer may restrict an employee who has tested positive for COVID-19 from entering the workplace until a medical professional has cleared the employee to return to the workplace or until a period of quarantine recommended by the Department of Health or U.S. Centers for Disease Control and Prevention has elapsed.
The mayor or attorney general may investigate potential violations of the new law. The mayor may assess administrative penalties of $50 per employee per day for a repeated or willful failure to implement the required policies violation. The mayor may also assess a $500 administrative penalty for each instance of retaliation against an employee. The attorney general is authorized to sue employers for violations and seek back pay, equitable relief, and attorneys’ fees and costs. No private right of action exists under the law.
For more information about the Protecting Businesses and Workers from COVID-19 Emergency Amendment Act of 2020 or safely re-opening workplaces, 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 industries can address crucial COVID-19-related business and legal issues.
Update: On November 16, 2020, D.C. extended the law with the passage of Act 23-483. The law will remain in effect through February 14, 2021 or until the declared public emergency has concluded, whichever occurs first.
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