By Conn Maciel Carey’s COVID-19 Task Force
On April 10, 2020, the District of Columbia passed the COVID-19 Response Supplemental Emergency Amendment Act of 2020 (“the Act”). Among other things, the Act amends the D.C. Accrued Sick and Safe Leave Act of 2008 by creating a new category of paid leave called “Declared Emergency Leave.”
This is in addition to the March 17, 2020, amendment of the D.C. Family and Medical Leave Act (“D.C. FMLA”) that created “Declaration of Emergency” leave. Under the Act, employers must now provide paid leave to employees for any covered reason provided by the Families First Coronavirus Response Act (“FFCRA”). Notably, this leave appears to be in addition to: (1) leave provided by FFCRA; (2) leave provided by D.C. FMLA; and (3) leave provided by the employer’s policies. The new law is currently in effect and will remain in effect for no longer than 90 days, until July 9, 2020.
With respect to coverage, companies employing between 50 and 499 people must provide Declared Emergency Leave to D.C. employees. It is unclear, however, if the 50 to 499 employees must all work in D.C. to trigger the new law’s application, or whether the new law applies to any employee who works in D.C. so long as the employer employs between 50 and 499 employees nationwide. Subsequent regulations may be issued to further clarify. Additionally, there is an exemption from coverage for healthcare providers. For purposes of Declared Emergency Leave, healthcare provider is defined as any doctor’s office, hospital, healthcare center, clinic, post-secondary educational institution offering healthcare instruction, medical school, local health department or agency, nursing facility, retirement facility, nursing home, home healthcare provider, any facility that performs laboratory or medical testing, pharmacy, or any similar institution, employer or entity. This includes any permanent or temporary institution, facility, location or site where medical services are provided that are similar to such institutions.
An employee is eligible to take Declared Emergency Leave if the employee started work for the employer at least 15 days before the request for leave. Declared Emergency Leave is available to an employee absent from work due to any of the six FFCRA-protected reasons, which we explained in a previous article. Those are:
- The employee is subject to a Federal, State, or local quarantine or isolation order related to COVID-19;
- The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19;
- The employee is experiencing COVID-19 symptoms and seeking a medical diagnosis;
- The employee is caring for an individual (this does not have to be a family member) who is subject to an order as described in reason one above or has been advised as described in reason two above;
- The employee is caring for his/her child if the school or place of care of child has been closed due to COVID-19 or the childcare provider is unavailable due to COVID-19; or
- The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.
An employee is entitled to Declared Emergency Leave in an amount sufficient to ensure that the employee is able to remain away from work for two full weeks of work, up to 80 hours or, for a part-time employee, the usual number of hours the employee works in a two-week period. While this is substantially more than other leave provided under the D.C. Accrued Sick and Safe Leave Act, unlike leave provided thereunder, Declared Emergency Leave does not accrue over time.
Importantly, employees must be paid for Declared Emergency Leave at the employee’s regular rate of pay. If an employee does not have a regular rate of pay, the employee’s rate of pay is determined by a formula, dividing the employee’s total gross earnings, including all tips, commissions, piecework or other earnings accrued on an irregular basis, for the most recent two-week period the employee worked, by the number of hours the employee worked during that two-week period. In no case may the rate of pay fall below D.C. minimum wage.
Employers may require an employee to provide notice of the need to use Declared Emergency Leave, but cannot require such notice to be provided more than 48 hours in advance. If the need for leave is an emergency, the employer can require only “reasonable” notice (which still cannot exceed 48 hours’ notice). Additionally, employers may require an employee to provide certification of the need to use Declared Emergency Leave, but only if: (1) the employer contributes payments toward a health insurance plan on behalf of the employee; and (2) the employee uses three or more consecutive working days of paid leave. If the employer requires certification, the employee cannot be required to provide the certification until one week after the employee’s return to work.
With respect to exhaustion of other types of leave, employers may require an employee to exhaust any available under federal/D.C. law or the employer’s own policies prior to using Declared Emergency Leave. If an employee uses all of his/her Declared Emergency Leave available and subsequently informs of a continued need to be absent from work, the employer must inform the employee of any paid or unpaid leave to which the employee may be entitled pursuant to federal law, other D.C. law or the employer’s own policies. Notably, because FFRCA prohibits employers from requiring an employee to use other employer-provided paid leave before the employee uses FFCRA paid sick leave, it appears that Declared Emergency Leave is in addition to: (1) leave provided by FFCRA; (2) leave provided by D.C. FMLA; and (3) leave provided by the employer’s policies.
Additionally, the Act provides protections against retaliation and worker substitution searches. Namely, employers may not retaliation against employees who request Declared Emergency Leave, and may not require an employee who needs such leave to search for another worker to perform his/her work during the leave.