New District of Columbia Law Provides Additional Type of Paid Leave in Response to COVID-19 Crisis
The District of Columbia has enacted a new law expanding, at least temporarily, the paid leave that District employers must provide to their employees in light of the COVID-19 pandemic. The measure applies retroactively to March 11, 2020, but will remain in effect only until July 9, 2020.
The new law, known as the “COVID-19 Response Supplemental Emergency Amendment Act of 2020,” provides that employees can now use “Declaration of Emergency” (DOE) leave. Specifically, the law amends the D.C. Accrued Sick and Safe Leave Act to require non-health care employers with 50-499 employees to provide employees with two weeks’ worth of paid DOE leave at the employee’s regular rate of pay. This amounts to 80 hours of leave for a full-time employee, or, for a part-time employee, an amount of leave equivalent to what they normally work in a two-week period.
As is the case under the Accrued Sick and Safe Leave Act, employees are eligible for DOE leave if they spend more than 50 percent of their time working in D.C., or if they spend less than 50 percent of their time in D.C. but D.C. is their primary place of employment and they do not work more than 50 percent of their time in another jurisdiction. Independent contractors are excluded.
DOE leave can be used for any of the COVID-19-related reasons identified in the federal Families First Coronavirus Response Act (FFCRA), including being in government-imposed or doctor-recommended quarantines, experiencing COVID-19 symptoms, or caring for a child whose school is closed or care provider is unavailable.
Although the reasons for taking D.C. DOE leave overlap with those for taking FFCRA leave, it appears that D.C. DOE leave will apply in addition to FFCRA leave; that is, an employee who has exhausted their FFCRA paid leave can still take their available DOE paid leave. However, the employer can require the employee to take their FFCRA leave – and any other leave available under federal or District law or the employer’s policies, including paid time off – before using the DOE leave.
Employees need only have worked for the employer for 15 days to be eligible for DOE leave. To use such leave, the employee only has to provide “reasonable notice” in an emergency, and no more than 48 hours’ notice. Employers caught violating the requirements have five days to cure.
The employer shall not require medical certification unless the employee takes three consecutive working days of paid leave, and even when certification is required, the employee does not have to provide it until one week after returning to work. Also, if the employer does not contribute to the employee’s health insurance, it cannot require certification.
District of Columbia employers should review and update their leave policies to ensure compliance with this new obligation and make sure that they understand the various types of leave available to their employees under federal and District laws.