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.
Beginning at 10 p.m. on December 23, 2020, Mayor Bowser has ordered a “holiday pause” on various activities in an effort to flatten the curve. Until 5 a.m. on January 15, 2021, the mayor has directed that restaurants cease indoor dining – outdoor dining, carryout and delivery services may continue. All non-essential businesses are required to telework except for staff needed to support minimum business operations. Food sellers and big box stores are no longer subject to a 25% or 250-person occupancy cap, but must make plans that provide for safe social distancing and limited occupancy necessary for safety.
The mayor further extended the declaration of the public health emergency through March 31, 2021. These measures are just the latest in the District’s efforts to address the COVID-19 pandemic. Other recent protections are summarized below.
COVID-19 Anti-Retaliation Measures and Leave
On November 16, 2020, the mayor signed into law the Protecting Businesses and Workers from COVID-19 Congressional Review Emergency Amendment Act of 2020, which prohibits employers from taking adverse actions against employees who: 1) tested positive for COVID-19 (if they do not physically report to work after doing so); 2) were exposed to someone with coronavirus and need to quarantine; 3) are sick and waiting for a COVID test; or 4) are caring for someone quarantining with COVID symptoms.
Under the act, employers also must adopt and implement social distancing policies that require employees to wear personal protective equipment in the workplace and must provide employees with personal protective equipment. The protections, passed on an emergency basis, are currently set to expire on February 13, 2021.
These anti-retaliation protections sit atop similar safeguards in the District’s paid sick and safe time ordinance, which was amended early on during the pandemic to require employers with between 50 and 499 employees to provide up to 80 hours of paid “declaration of emergency” (DOE) leave for any reason employees might take leave under the federal Families First Coronavirus Response Act (FFCRA).1 The District has been actively auditing employers to ensure that they are providing paid DOE leave. It has taken the enforcement position that coverage applies to all employers with 50 to 499 employees in the District of Columbia. The District is required to provide written notice of any alleged violation of the DOE leave provisions and permits employers at least five business days to cure before administrative action is taken. The DOE leave provisions are set to expire on May 21, 2021.
The District additionally expanded the DCFMLA to permit protected leave for absences related to COVID-19.2 This expansion is tied to the mayor’s declaration of health emergency, currently set to expire on March 31, 2021.
Shared Work Program Amendments
The District of Columbia also amended portions of its shared work program statutes. Under the voluntary program, in order to receive shared work benefits, employees must be eligible for unemployment compensation and:
- be covered by a shared work plan approved before the week for which the benefits are claimed;
- available for their usual hours of work, including participating in training; and
- the employee’s pay in an affected unit is reduced under the employer’s shared work plan.
The director of the Department of Employment Services has 15 calendar days to approve or disapprove an employer’s application. The amendments also permit an employer to voluntarily terminate a shared work program at any time and state the reasons the director may revoke an employer’s plan. Under the amended law, an employer must submit all proposed modifications of their plan to the director for approval before implementing the changes.
The amendments limit an employee’s shared work benefits to 52 weeks. Similarly, an employee may not be paid more than the equivalent of 26 weeks of regular unemployment compensation.
1 See Nancy Delogu, S. Libby Henninger, Steve Kaplan and Brad Tobias, DC Council Adopts Expanded Sick Leave, Unemployment Amendments, Littler ASAP (Apr. 8, 2020); and Libby Henninger, Steven Kaplan, Eunju Park, and Sebastian Chilco, D.C. Amends Emergency Paid Leave Amendments, Littler ASAP (June 8, 2020) for further discussion.
2 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).