Just before the holidays, the Washington, D.C. Department of Employment Services (“DOES”) quietly issued proposed regulations governing paid sick and safe leave for employees. When finalized, these long-awaited regulations will implement the controversial Accrued Sick and Safe Leave Act of 2008 (“ASSLA” or the “Act”), which 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, as well as “safe” leave associated with stalking, domestic violence or sexual abuse.
Since the Act applied beginning November 13, 2008, employers have had to implement the confusing and contradictory statute with little guidance. Now that the proposed rules are published, employers have thirty (30) days after the publication date of December 19, 2008 to submit written comments. DOES will publish final regulations at some point after January 20, 2009 and may also issue a “Frequently Asked Questions” guide for additional enforcement guidance.
This article summarizes some of the main issues addressed by the proposed regulations, offers Practice Tips for interim compliance, and provides instructions for submitting public comments.
Accruing and Accessing Leave
One of the questions raised by the Act is when employees may begin accruing leave and accessing leave. The proposed rules attempt to reconcile the statutory conflicts and answer the question by creating different definitions of “employee” and “eligible employee.”
In short, the regulations propose that an “employee,” which is an individual who works more than 50% of working time in the District, may accrue leave beginning on the date of hire, but not before November 13, 2008. However, an employee may not begin accessing leave until he or she becomes an “eligible employee,” which requires one year of continuous service and at least 1000 hours worked during the previous twelve-month period. Further, “eligible employees” cannot begin accessing leave until February 11, 2009. The wording of these provisions is particularly confusing and could benefit from clarification in the final version.
Practice Tip: To prepare for the final regulations, employers should ensure their policies allow employees to begin accruing leave on November 13, 2008, or their date of hire if starting employment after that date. Then, beginning February 11, 2009, employees may begin using accrued leave if they have worked at least one continuous year and 1000 hours during the previous 12 months.
Carryover and Calculation Issues
The distinctions between an “employee” and an “eligible employee” potentially allow an employee to accrue leave for long periods of time before he or she may access the leave. This raises the question of how much leave has carried over from prior years. Although the proposed rules mandate in one section that unused leave must carry over each year, a separate section states that an “eligible employee” may not use more paid leave in a calendar year than the maximum number of hours that the employee could accrue annually, unless otherwise permitted by the employer. This is another confusing issue that will hopefully be clarified and cross-referenced in the final regulations.
Additionally, the accrual system under the Act is cumbersome and requires an employer to calculate each employee’s leave accrual based on actual hours worked and the employer’s size. The proposed rules remind employers, however, that they can avoid these burdensome requirements if their existing paid leave policies allow employees to access and accrue paid leave at the same rate or greater than the Act, and employees may use the paid leave for the same purposes as intended by the Act (e.g., “safe leave”).
Practice Tip: Employers who have universal paid time off (PTO) policies in which (1) PTO balances are automatically “refreshed” at the beginning of each calendar year; (2) such refreshed balances meet the minimum amount required by the Act; and (3) the PTO may be used for any purpose, will likely satisfy the accrual and accessing requirements of ASSLA.
Addressing Improper Use of Leave
The proposed rules also provide that an employer may create and enforce a policy that prohibits or sanctions the improper use of paid leave, or that requires more frequent certifications from an employee if there is evidence of a pattern of abuse. A pattern of abuse may be evidenced by:
- Consistent taking of paid leave without advance notice when there is no emergency requiring it;
- Consistent taking of leave on days for which vacation or annual leave have been denied;
- A pattern of taking paid leave on days where the employee is scheduled to work a shift or perform duties perceived as undesirable, including high volume days; and
- A pattern of taking paid leave on Mondays, Fridays, or the day immediately preceding or following holidays.
Practice Tip: Employers should place employees on notice in their leave policies that improper use of paid leave is prohibited and may be subject to discipline, up to and including discharge, and that employers reserve the right to seek more frequent certifications if there is evidence of a pattern of abuse, as permitted by applicable law.
McGuireWoods is serving on a D.C. Chamber of Commerce committee that has already collected and drafted formal comments on behalf of employers doing business in the District. If any employer is interested in submitting additional comments through this forum, it may contact McGuireWoods directly, and as soon as possible. Alternatively, employers are urged to submit written comments directly to DOES by January 20, 2009, by writing to Eugene Irvin, General Counsel, Department of Employment Services, 64 New York Avenue, N.E., 3rd Floor, Washington, D.C. 20002.
McGuireWoods is communicating closely with DOES to obtain the best available information on the status of the regulations and DOES enforcement guidance. When the final regulations are issued, McGuireWoods will publish another WorkCite article with additional practice tips and implementation guidance, and will likely sponsor a complimentary webinar soon thereafter.