HARMON CURRAN NONPROFIT LAW BLOG

DC Council Updates Emergency Leave Requirements

The DC Council has passed and DC Mayor Bowser has signed into law DC Act 23-328, emergency legislation that combines into one act and extends numerous earlier emergency laws that have been enacted in response to the coronavirus pandemic.  Included in this new law are several provisions requiring that employers provide leave to their DC employees; the Act repeals prior DC emergency legislation that created similar leave obligations.  The Act is effective June 9, 2020 and expires September 6, 2020.

Amendments to DC Family and Medical Leave Act

The Act amends the existing DC Family and Medical Leave Act to require employers of any size to provide, during the COVID-19 emergency, up to 16 weeks of additional, unpaid, job protected “COVID-19 leave” to DC employees with at least 30 days of service.  COVID-19 leave is available if the employee 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 an individual with whom the employee shares a household is at high risk for serious illness from COVID-19;

(2) A need to care for a family member or an individual with whom the employee shares a household 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.

While this leave is unpaid, an employee may, but cannot be required to, substitute any paid leave available under the employer’s policies.  The employee may, but cannot be required to, use COVID-19 leave prior to using other leave available to the employee under federal or local law or the employer’s policies.  During the leave, employers must maintain an employee’s health insurance coverage on the same basis as was in effect prior to the taking of leave.  The law also allows employers to exclude certain key employees from the job protection provisions of the law, as is generally true for DC Family and Medical Leave.  Employers can request documentation of the need for leave.

Amendments to DC Accrued Sick and Safe Leave Act

Like the prior emergency legislation, this Act amends DC’s Accrued Sick and Safe Leave Act and requires employers that are not health care providers and have between 50 and 499 employees to provide additional “paid public health emergency leave” to their DC employees beginning April 10, 2020 and for the duration of the COVID~l9 emergency.  However, in the Act, the manner in which this new required leave interacts with other existing leave requirements and the employer’s own leave policies has been revised from the original law and reflects revisions included in some short-lived interim emergency legislation.

As in the original emergency legislation, the Act provides that:

• Eligible employees are those who have worked for a covered employer for at least 15 days.
• Leave is available for an absence that would qualify as emergency paid sick leave or expanded family and medical leave under the Families First Coronavirus Relief Act (FFCRA).
• Full-time employees are eligible for an amount of leave that is sufficient to allow an absence for two full weeks or up to 80 hours. Part-time employees are eligible for up to the usual number of hours the employee works in a two-week period.
• Eligible employees must be paid at their regular rate of pay during the leave.
• No more than 48 hours’ notice of the need to use leave can be required, and in emergencies only reasonable notice can be required.
• Employees cannot be required to identify other employees to perform their work during the leave period.
• Health care certification can only be required for employees using three or more consecutive working days of paid leave, and employees cannot be required to provide it until one week after their return to work. If the employer does not contribute payments toward a health insurance plan for the employee, no certification can be required.

In terms of the interaction of this leave with other leave that may be available to employees, the Act provides that:

• Employees may only use paid leave available under the Act concurrently with or after exhausting any other paid leave to which the employee may be entitled for covered reasons under federal or District law or an employer’s policies.
• If an employee elects to use paid leave provided under the Act concurrently with other paid 1eave, the employer may reduce the monetary benefit of the paid leave it is required to provide under the law by the amount of the monetary benefit the employee has received for paid leave taken under federal or District law or the employer’s policies.
• If an employee elects to use paid leave provided under the Act after exhausting other available paid leave, the employer may reduce the number of hours of paid leave available to the employee under the law by the number of hours of paid leave taken under federal or District law or the employer’s policies.
• Employers are required to inform employees of any other paid or unpaid leave to which they may be entitled under federal or District law or the employer’s policies if the employees have exhausted their paid public health emergency leave and are in need of additional leave.

In other words, covered employers must provide up to 80 hours of paid leave to their DC employees for the eligible purposes at their full rate of pay through some combination of leave already available for covered reasons under FFCRA, other District laws requiring paid leave (such as the DC Accrued Sick and Safe Leave), or the employer’s existing policies, and then provide any additional leave needed to meet the minimum requirements of the Act.

Please contact us if we can be of help in understanding and implementing your obligations under the Act or any other recent legislation.