April.24.2020
On April 10, 2020, the District of Columbia enacted the COVID-19 Response Supplemental Emergency Amendment Act of 2020 (the “Act”). Relevant to employers, the Act (1) creates a new category of paid sick leave for COVID-19-related reasons, (2) expands eligibility for unemployment insurance benefits for District residents who lost work due to COVID-19, and (3) modifies the District’s work-share program. The Act is effective as of April 10, 2020 and will remain in effect for 90 days. The Act follows the District’s COVID-19 Response Emergency Amendment Act of 2020, enacted March 17, 2020, which amended the District of Columbia Family and Medical Leave Act to grant unpaid leave to employees for reasons related to COVID-19.
The Act amends the District’s Accrued Sick and Safe Leave Act of 2008 to require employers with between 50 and 499 employees to provide two full weeks of paid sick leave—up to 80 hours—for any reason employees may take leave under the federal Families First Coronavirus Response Act (“FFCRA”).[1] Employees who have worked for the employer for at least 15 days are eligible to take leave under the Act.
Under the Act, leave must be paid at the employee’s regular rate of pay. For employees without a regular rate of pay, the rate is determined by dividing the employee’s total gross earnings—including all tips, commission, piecework, or other earnings earned on an irregular basis for the most recent two-week period that the employee worked—by the number of hours the employee worked during that two-week period. An employee’s rate of pay cannot be less than the District’s minimum wage.
Employees cannot be required to provide employers with more than 48 hours’ notice of the need to take leave. However, an employee need only provide “reasonable” notice in the event of an emergency. Further, an employee need not provide certification of the need to use leave unless the employee uses three or more consecutive working days of paid leave. Any required certification need not be provided until one week after the employee returns to work. However, an employer is prohibited from requiring certification if it does not contribute toward health insurance payments on behalf of the employee.
This leave is in addition to any other leave the employee may take under federal or District law or an employer’s own policies. However, employers may require that employees exhaust any such leave before using leave under the Act. If an employee exhausts leave under the Act and informs the employer that additional leave is needed, the employer must inform the employee of any other paid or unpaid leave to which the employee may be entitled under the law or the employer’s policies.
These expanded sick leave provisions do not apply to a “health care provider,” defined as any doctor’s office, hospital, healthcare center, clinic, postsecondary educational institution offering healthcare instruction, medical school, local health department or agency, nursing facility, retirement facility, nursing home, home healthcare provider, facility that performs laboratory or medical testing, pharmacy, or any similar institution, employer, or entity.
Leave under the Act is available as long as the District’s COVID-19 public health emergency is in effect. Employers are prohibited from retaliating against employees requesting leave under the Act.
While there are similarities between the Act and the FFCRA, there are a few key differences. First, the FFCRA has broader applicability because it applies to all employers with less than 500 employees (the Act exempts employers with less than 50 employees). Second, the FFCRA applies to employees regardless of the amount of time the employee has been employed by the employer (the Act requires employees to work for at least 15 days before requesting leave). Third, the amount of paid leave under the FFCRA is capped per employee. Fourth, the Act does not provide any tax credits to employers to offset the cost of the required paid leave.
The Act also expands eligibility for the District’s unemployment insurance program during the District’s COVID-19 public emergency. During this time, individuals who “otherwise would not qualify” may be eligible to receive unemployment insurance benefits, including workers who are self-employed, seeking part-time work, or do not have a sufficient work history. The Act also removes the one-week waiting period for eligibility for unemployment insurance benefits and the requirement that claimants must be searching for work.
The Act also modifies the District’s work-share program, which allows businesses to reduce employee hours—instead of laying them off completely—while also permitting those workers to file for partial unemployment to make up for lost pay. Under the Act, the District’s work-share program expands by allowing benefits for workers whose employers reduce their work hours by no less than 10% and no more than 60%. Previously, workers were eligible for benefits if their hours were reduced by no less than 20% and no more than 40%.
[1] Those reasons are that the employee is unable to work or telework because the employee (1) is subject to a quarantine or isolation order related to COVID-19; (2) has been advised by a healthcare provider to self-quarantine due to COVID-19; (3) is experiencing COVID-19 symptoms and is seeking a medical diagnosis; (4) is caring for an individual subject to a quarantine or isolation order or self-quarantine; (5) is caring for a child whose school or place of care is closed (or whose child care provider is unavailable) for reasons related to COVID-19; or (6) is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services, in consultation with the Secretaries of Labor and the Treasury.