Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
UPDATE: On November 18, 2021, the mayor signed the bill.
The District of Columbia Council has passed legislation mandating that employers provide paid leave to employees for time spent obtaining and, if needed, recovering from side effects of a COVID-19 vaccine. Employees will also be provided with leave to accompany minor children to a COVID-19 vaccine appointment and to care for the child following the vaccine if necessary. The law will become effective following Mayor Bowser’s signature, which is expected.
On November 2, 2021, the Council of the District of Columbia unanimously passed the COVID Vaccination Leave Emergency Amendment Act of 2021 (Emergency Act). The Emergency Act amends the Accrued Sick and Safe Leave Act of 2008. The Emergency Act will remain in effect for a period of no more than 90 days. The COVID Vaccination Leave Temporary Amendment Act of 2021 (Temporary Act), which substantively mirrors the Emergency Act, is in the pipeline. Once signed by the mayor and after a 30-day congressional review period, the Temporary Act will become effective and expire after 225 days.
Under the Emergency Act, all DC employers will have to provide up to two hours of paid leave for receiving an injection of the COVID-19 vaccine and up to eight hours of paid leave during the 24-hour period following such injection. For employers that are subject to the COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS) released by the U.S Department of Labor’s Occupational Safety and Health Administration (OSHA) on November 4, 2021,1 the D.C. statute will likely be subsumed within the federal paid vaccine leave provisions. However, the D.C. law will also permit employees to take vaccination leave or vaccination recovery leave to care for the employee’s child who receives the COVID-19 vaccine, for a total of 48 hours of leave in the year beginning on the effective date of the Emergency Act. The D.C. law will also apply to employers who are too small to fall within the scope of the new OSHA mandate.
Quick Recap of Relevant Legislation
On April 10, 2020, D.C. enacted B23-0733, a 90-day emergency law that expanded D.C.'s paid sick leave law to require employers with between 50 and 499 employees to provide emergency paid leave for the same reasons employees could have taken emergency paid sick leave under the since-expired federal Families First Coronavirus Response Act.
Expansion of the Accrued Sick and Safe Leave Act
Beginning on the effective date of the Emergency Act, all DC employers, not including the District government, must provide the following paid leaves to any employee who started working for the employer at least 15 days before the request for the leaves:
- Vaccination Leave – leave taken to receive an injection, or for an employee’s child to receive an injection, of a COVID-19 vaccination approved by the federal Food and Drug Administration (FDA), including a booster injection approved for the employee or child by the Centers for Disease Control and Prevention (CDC). Employees may take up to two hours per injection.
- Vaccination Recovery Leave – leave taken to recover, or for an employee to care for a child recovering, from side effects from a COVID-19 vaccination approved by the FDA, including a booster injection approved for the employee or child by the CDC, which preclude an employee from performing their work. Employees may take up to eight hours per injection during the 24-hour period following the two-hour vaccination leave period.
An employee may take only up to 48 hours of leave in total in a year beginning on the effective date of the Emergency Act for vaccination or vaccination recovery leave. For the purposes of the above leaves, “child” means a child under the age of 18 years who lives with an employee and for whom the employee permanently assumes and discharges parental responsibility or a foster child under the age of 18 years.
Employees must be paid at the employee’s regular rate of pay. If the employee does not have a regular rate of pay, the employee’s rate of pay 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 workweek that the employee worked for the employer – by the number of hours the employee worked during that workweek.
In addition to enforcement provisions under the Sick and Safe Leave Act, the mayor is permitted to enforce violations through investigation and administrative proceedings voluntarily or in response to an administrative complaint. If the mayor takes an administrative action on a complaint, the employer must be promptly given written notice of the alleged violation, and five business days from receiving the notice to cure the alleged violation.
Interactions with Existing Policies
The paid leave required is in addition to any other paid leave an employer provides an employee under an existing leave policy, including under an existing contract or collective bargaining agreement (CBA). However, if the employer has a paid leave policy that exclusively and expressly provides for COVID vaccination and recovery leave in the amounts greater or equal to the amounts provided by the Emergency Act, and does not reduce other available paid leave, the employer is not required to provide additional leave. Employers and unions cannot waive or reduce the amount of leave an employer is required to provide under the Emergency Act through a CBA.
OSHA Emergency Temporary Standard
Eight weeks after President Joseph R. Biden’s announcement, the federal OSHA has issued an Emergency Temporary Standard requiring all employers with at least 100 employees to ensure their workers are fully vaccinated against COVID-19 or submit to weekly COVID-19 testing.
The ETS requires covered employers—regardless of whether they implement a mandatory vaccine policy or the alternative testing approach—to provide up to four hours of paid time to receive each primary dose (excluding any booster doses) of the vaccine, and reasonable paid time for sick leave for side effects. The ETS does not require a particular amount of paid sick time for vaccine side effects. It requires only that the amount of time be “reasonable,” and notes that employers may set a reasonable a cap on this time.
Accordingly, for DC employers that fall under the ETS, employees must be given four hours of paid time instead of two hours per vaccination and possibly more than eight hours to recover from the side effects for themselves. The ETS—unlike the DC Emergency Act—does not provide for paid leave to care for an employee’s child, however.
COVID-19 Leave under DCFMLA
Beginning November 5, 2021, under the amendment to the DC Family and Medical Leave Act, an employee is entitled to unpaid leave if the employee is unable to work because the employee:
- Has tested positive for COVID-19 or is caring for a family member or individual with whom the employee shares a household who has tested positive for COVID-19 and must quarantine pursuant to Department of Health guidelines
- Has a recommendation from a health care provider or a directive from an employer that the employee isolate or quarantine due to COVID-19, including because the employee or an individual with whom the employee shares a household is at high risk for serious illness from COVID-19
- Must care for a family member or an individual with whom the employee shares a household, who is isolating or quarantining pursuant to Department of Health guidance, the recommendation of a health care provider, or the order or policy of the family member’s or individual’s school or childcare provider
- Must care for a child whose school or place of care is closed or whose childcare provider is unavailable to the employee due to COVID-19
Employees may use up to 16 weeks of leave in the two-year period beginning on the effective date of the Emergency Act. If the employee elects to use any paid leave provided by an employer to use for COVID-19 leave purposes, the time taken will count against the 16 total workweeks allowed under the Act. The same is true if an employer has a program that allows an employee to use the paid leave of another employee under certain conditions. Employees are not required but may elect to use leave provided under the COVID-19 Leave section of the Emergency Act before other leaves the employee is entitled under federal or DC law or an employer’s policies.
Employers should review, and revise, if necessary, policies and procedures they implemented to comply with the emergency paid leave amendments. They should also monitor DC legislation to see what additional changes might be included in the various emergency and temporary measures the District has been enacting during the COVID-19 public health emergency.
1 As of the date of this article, a petition was filed by Alabama, Florida, and Georgia in the Eleventh Circuit challenging the ETS, arguing it demonstrates a disregard for constitutional rights. On Saturday, November 6, the U.S. Court of Appeals for the Fifth Circuit temporarily enjoined enforcement of the ETS. It is expected that the various challenges filed in federal courts will be consolidated for a single adjudication in the weeks to come.