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: D.C. Mayor Muriel Bowser signed this new law on April 10. It will remain in effect until July 9, 2020.
On April 7, 2020, the D.C. Council unanimously passed its second emergency COVID-19 relief bill, the COVID-19 Response Supplemental Emergency Amendment Act of 2020 (Emergency Act), addressing a variety of programs and protections for residents.1 Significant for employers, the Emergency Act expands the District’s unemployment insurance program to take advantage of federal legislation and creates new paid sick leave entitlements for District employees working for mid-sized employers. The Emergency Act will become effective upon Mayor Bowser’s signature and remain in effect for a period of no more than 90 days.
Expansion of Accrued Sick and Safe Leave Act
The Emergency Act creates a temporary expansion of the District’s paid sick leave law, and requires employers with between 50 and 499 employees to provide “declaration of emergency” (DOE) leave for any reason employees might take leave under the federal Families First Coronavirus Response Act (FFCRA). These reasons, discussed in more detail here, include instances in which an employee is unable to work because (a) the employee has been recommended to self-isolate or has been required to quarantine following exposure to, or while experiencing symptoms of, COVID-19; (b) the employee must care for an at-risk family member for exposure or symptoms related to COVID-19; or (c) the employee must care for a child whose school or place of care has closed.
Although the District of Columbia law tracks the FFCRA in defining the reasons an employee may take DOE leave, the new law expands the city’s existing Accrued Sick and Safe Leave Act. Therefore, the broader definition of “family member” used in the D.C. law applies, expanding the group of workers who may be eligible for DOE leave. The expanded DOE leave provisions do not, however, apply to “health care provider” employers, defined as “any doctor’s office, hospital, health care center, clinic, post-secondary educational institution offering health care instruction, medical school, local health department or agency, nursing facility, retirement facility, nursing home, home health care provider, any facility that performs laboratory or medical testing, pharmacy, or any similar institution, employer, or entity.”
Like the FFCRA, the Emergency Act offers full-time employees up to 80 hours of paid DOE leave, and part-time employees may be entitled to paid leave equal to the usual number of hours the employee works in a two-week period. The leave must be paid at an employee’s regular rate of pay. If the employee does not have a regular rate of pay, then the rate will be 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.
Unlike under the federal FFCRA, the District has not provided any tax or other financial incentives to covered employers to offset the cost of the required leave. Also, in contrast to the federal law eligibility requirements, employees are eligible for the District’s paid DOE leave if they commenced work for the employer at least 15 days before the request for leave is made.
Employers covered by the FFCRA’s Employee Paid Sick Leave and Expanded Family and Medical Leave provisions must offer employees both FFCRA and DOE leave. The Emergency Act allows employers, however, to require employees to exhaust existing accrued leave mandated by federal or District law, or provided by the employer’s policies, prior to using paid DOE leave. In order to take DOE leave, employees must provide 48 hours’ advance notice of need for leave except in the case of an emergency, in which case reasonable notice is sufficient. An employer can require employees to present a certification from a medical professional attesting to their need for DOE leave only if the employer contributes payments towards a health insurance plan on behalf of the employee. Even then, an employer may require such a certification only if an employee uses three or more consecutive working days of paid leave; the employee must present such documentation within one week after the employee’s return to work.
The Emergency Act also provides that the Universal Paid Leave Implementation Fund Act of 2016 can be used to fund enforcement activities related to the DOE leave requirements.
Expansion of the District’s Work Share Program
The Emergency Act also revitalizes and expands the District of Columbia shared work program, which is designed to reduce unemployment and stabilize the workforce by allowing certain under-employed workers to collect unemployment compensation benefits. The Emergency Act expands the existing work share program by allowing benefits for workers whose employers reduce their work hours by no less than 10% and no more than 60%, instead of the existing 20-40% reduction in work.
Unemployment Insurance Coverage
The Emergency Act also expands the coverage of the District of Columbia’s unemployment insurance program to include, in appropriate circumstances, workers who are self-employed, gig workers, those seeking part-time work and others “who otherwise would not qualify.” These and other changes will allow the city to authorize unemployment benefits for those who would qualify for the expanded unemployment benefits authorized by the recently enacted federal Coronavirus Aid, Relief, and Economic Security (CARES) Act.
Other Notable Provisions
While the Emergency Act provides myriad additional requirements aimed at providing protections to District residents and businesses, of note to employers, the new law also:
Extends the enforcement provisions and remedies available to attorney general-initiated actions seeking to enforce the District of Columbia’s Human Rights Act during the period of time for which the mayor has declared a public health emergency.
Absolves District of Columbia employees, contractors and volunteers from civil liability in implementing the District’s COVID-19 response plan and for actions taken related to the public health emergency, except in instances of gross negligence.
1 The first emergency measure, the COVID-19 Response Emergency Amendment Act, was enacted on March 17, 2020. See Libby Henninger and Patricia Donkor, District of Columbia Passes Emergency Legislation Expanding Coverage Under the DCFMLA and Unemployment Insurance, Littler ASAP (Mar. 19, 2020).