Don’t Be Spooked: D.C. COVID-19 Leave Law Is in Effect and Will Be Enforced
As COVID-19 cases once again surge across the country, Washington, D.C. employers must remember to provide both paid and unpaid leave under the new District of Columbia Coronavirus Support Temporary Amendment Act of 2020 (D.C. Law 23-130) (the “Act”). Although passed in July 2020, the Act formally became effective on October 9, 2020 and will remain in effect through the end of the declared COVID-19 public health emergency—currently December 31, 2021. The law repeals the emergency laws that we previously blogged about, but carries over the additional obligations to provide employees with paid and unpaid leave for COVID-19-related reasons. We have summarized both provisions below.
Paid Public Health Emergency Leave under the ASSLA
The Act carries over the amendment to the Accrued Sick and Safe Leave Act (“ASSLA”) (D.C. Code § 32-531.02a), which requires non-healthcare employers with between 50-499 employees to provide workers with up to two weeks of paid public health emergency leave (previously referred to under the emergency laws as “declared emergency leave” or “DOE Paid Leave”). Notably, the Act does not clarify whether employers are required to count their employees nationwide or just those within the District.
Employees who have worked for their employer for at least 15 days may request paid public health emergency leave for any reason allowed by the federal Families First Coronavirus Response Act (“FFCRA”). Under the FFCRA, an employee may take paid sick leave if the employee cannot work (or telework) because the employee:
is subject to a Federal, State, or local quarantine or isolation order related to COVID-19;
has been advised by a health care provider to self-quarantine related to COVID-19;
is experiencing COVID-19 symptoms and is seeking a medical diagnosis;
is caring for an individual subject to an order described in (1) or self-quarantine as described in (2);
is caring for a child whose school or place of care is closed (or child care provider is unavailable) for reasons related to COVID-19; or
is experiencing any other substantially-similar condition specified by the Secretary of Health and Human Services, in consultation with the Secretaries of Labor and Treasury.
According to the Act, employers must provide enough paid leave to ensure that a full-time or part time employee is able to stay home for two full weeks of work (up to 80 hours). The leave must be taken over a consecutive two-week period and cannot be taken intermittently. Employers do not have to modify their existing paid leave policies or programs, provided those policies allow employees to access and use paid leave for COVID-19 related reasons.
Employers may not require eligible employees to provide more than 48-hours’ notice of their need for leave, and they must accept even less notice “in the event of an emergency.” Additionally, employers may not request certification of an employee’s need for the paid leave unless the employer contributes towards that employee’s health insurance plan, and not until the employee has taken three or more consecutive working days of paid leave. Furthermore, the employee does not have to provide the certification until at least one week after returning to work.
In a departure from the prior emergency laws, the Act now clarifies that paid public health emergency leave is not a supplement to other paid leave programs. Employees must use paid public health emergency leave concurrently with or after exhausting FFCRA leave, or any other paid leave provided by the employer or under federal or D.C. law. When an employee takes paid public health emergency leave concurrently with another leave, the employer does not have to pay the employee any more than 100% of standard pay. Moreover, if the employee uses paid public health emergency leave after exhausting other paid leave, the employer may reduce the amount of paid public health emergency leave by the number hours taken under other leave laws or policies.
Unpaid DCFMLA Leave
The Act also requires all employers, regardless of their size, to provide up to 16 weeks of unpaid COVID-19 leave to any employee who has worked at least 30 days. In a new section of the District of Columbia Family and Medical Leave Act (“DCFMLA”), employees may now request unpaid leave if:
A health care provider recommends that the employee quarantine or isolate, either due to the employee’s own health needs or because they share a household with a high-risk individual;
The employee needs to care for a family or household member who is ordered to quarantine; or
The employee needs to care for a child whose school is closed or childcare provider is unavailable.
Employers may require employees to provide certain certifications of their need for unpaid COVID-19 leave. For example, if the employee needs to take leave because a health provider recommended they isolate or quarantine, the employer may require a written, dated statement from that health care provider. Although the health provider must estimate the “probable duration” of the employee’s need, the certification does not have to disclose any condition underlying that need. If the employee must stay home because their child(ren)’s school is closed or childcare provider is unavailable, the employee need only provide a statement from the head of the agency, company, or childcare provider indicating such closure. Employers must accept statements pulled from the institution’s website.
Employees may reduce the economic impact of a prolonged unpaid absence by using other paid leave provided by the employer, and that paid leave will count against the 16 workweeks of unpaid leave. Thus, for example, if an employee chooses to take D.C. Paid Family Leave (“PFL”) because they have received an official diagnosis of COVID-19 or they need to provide care or companionship to a family member diagnosed with COVID-19, the time taken for PFL will count against the 16 weeks of COVID-19 leave. Employers cannot require the employee to take unpaid COVID-19 leave before other leave to which the employee may be entitled, but the employee may elect to do so. It appears, however, that employers may require other leave to run concurrently. Further, employers should note that the Council of the District of Columbia created COVID-19 leave as a separate entitlement, and thus employees may take this leave in addition to 16 weeks of family leave and 16 weeks of medical leave under the historical provisions of the DCFMLA.
Employers must provide employees notice of their right to take COVID-19 leave under this expanded DCFMLA. Under guidance previously published by the D.C. Office of Human Rights (“OHR”) regarding the predecessor emergency laws, this includes posting a notice in a conspicuous place and notifying an eligible employee of COVID-19 leave as soon as they become or may become eligible under the statutory circumstances. OHR has published a notice, but employers should note that it has not been updated since August 25, 2020, and currently incorrectly states that the COVID-19 leave is effective only through October 9, 2020. On October 7, 2020, Mayor Muriel Bowser issued Mayor’s Order 2020-103, in which she extended the public emergency and public health emergency through December 31, 2020. Employers should be prepared for further extensions of this emergency.
D.C. “DOES” Conduct Audits
The D.C. Department of Employment Services (“DOES”), which has authority to enforce ASSLA, is conducting random audits of employers to ensure they are providing paid public health emergency leave. The D.C. Office of the Attorney General (“OAG”) also has been conducting audits to ensure compliance with both paid public health emergency leave under ASSLA and COVID-19 leave under DCFMLA.
Fortunately, the Act requires the Mayor’s office to provide written notice of any alleged violations of the paid public health leave provision, after which employers have at least five business days to cure before the District takes any administrative action. Still, to avoid costly fines, employers should act quickly and make sure their return to work plans and leave policies provide sufficient COVID-19-related leave. Employers should also be sure to both post the “DC Family and Medical Leave Act during COVID-19” notice in the workplace and circulate a copy to all employees working remotely.