The Washington D.C. Department of Employment Services (DOES) issued final regulations this summer, which implement the District of Columbia Accrued Sick and Safe Leave Act of 2008 (ASSLA). These regulations clarify many provisions of the Act and address public comments received after draft regulations were initially published. The regulations also reflect amendments made to the Act published in 2009.
McGuireWoods’ earlier 2008 WorkCite article summarizing the main provisions of ASSLA may be accessed here. The Act is available here (D.C. Code Title 32, Chapter 1A), and the final regulations are available here. This article summarizes the main provisions of the Act, highlights its amendments, and provides an overview of the final rules promulgated by DOES.
Accrual and Carryover Requirements
Under ASSLA, eligible employees accrue leave based on the size of their employer and the number of hours they work. These provisions are unchanged from the proposed regulations:
- 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.
While these provisions require an employer to calculate each employee’s leave based on actual hours worked and the employer’s size, the regulations remind employers that they can avoid these requirements with a policy that allows employees to take paid leave at the employee’s discretion at the same rate or greater than what is required under the Act.
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.
Unused accrued leave carries over each year. However, in any given year, employees may not use more than the maximum leave that they could earn in that year, unless otherwise permitted by the employer. Employees do not need to be paid for any unused leave when they separate from employment.
Accruing and Accessing Leave
The original Act and proposed regulations generated much confusion and discussion regarding when an employee may begin accruing and accessing leave. The amended Act and final rules clarify that an employee begins to accrue and may access leave after he or she has been employed for at least one year without a break in service and has worked at least 1,000 hours of service during the previous 12 months.
The 2008 amendment to the Act also repealed the proposed provision allowing employees who are terminated from employment and rehired within twelve months to access immediately any leave they accrued prior to their separation date.
Both the employer and employee have notice obligations under the Act. 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 related complaint procedures. An employer’s failure to comply with this notice requirement may result in a civil penalty.
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, the regulations state the employees “shall” submit their requests orally prior to the start of the work shift. The regulations also provide that if an emergency prevents such prior notification, the employee must notify the employer before the start of the employee’s next work shift or within 24 hours after the onset of the emergency, whichever is sooner.
- 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 exemptions in the Act that apply to employees and the employer. Regarding the employee, 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.
For the employer, there is a hardship exemption. The Act provides that the Mayor shall provide a rule exempting businesses that prove hardship. While the initial 2008 proposed regulations included rules for the hardship exemption, the final regulations do not contain these provisions. Instead, a second Notice of Proposed Rulemaking regarding the hardship exemption was issued and may be accessed here. A final rule has not yet been adopted.
Improper Use of Leave
ASSLA prohibits employers from retaliating against employees who exercise their rights under the Act. However, employers may create and enforce a policy that (a) prohibits the improper use of paid leave; or (b) requires more frequent certifications from an employee if there is evidence documenting of a pattern of abuse. The documentation requirement is a new provision in the revised regulations. A pattern of abuse may be evidenced by:
- Consistent taking of paid leave without the notice required by the Act.
- Consistent taking of leave on days for which vacation or annual leave has 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.
- 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. Employers should document any instances that evidence a pattern of abuse of paid leave.
D.C. 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.
For further information or assistance in complying with ASSLA, please contact the authors or any member of the McGuireWoods Labor and Employment team.