The Mayor of the District of Columbia recently signed two emergency laws that expand obligations of employers to provide leave to employees for COVID-19 reasons:
- The COVID-19 Response Supplemental Emergency Amendment Act of 2020 requires employers with 50-499 employees other than health care providers to provide employees who have been employed for at least 15 days with up to two additional weeks of paid leave for the same reasons that leave is available under the federal Families First Coronavirus Response Act (FFCRA). This is referred to below as declared emergency paid leave (DE paid leave).
- The COVID-19 Response Emergency Amendment Act of 2020 requires all employers, regardless of size, to provide employees who have worked for any length of time with DC Family and Medical Leave Act (DC FMLA) leave, for the duration of the COVID-19 public health emergency, if they are unable to work “as a result of the circumstances giving rise to the public health emergency.” This is referred to below as declaration of emergency leave (DOE leave). Like other DC FMLA leave, it does not provide for pay.
These laws are both presently in effect and, unless extended, expire on July 9, 2020 and June 15, 2020, respectively. Below we summarize what we know (and don’t know) about the new leave entitlements.
DE paid leave
DE paid leave adds up to two additional weeks of paid leave to what is required under the FFCRA, for any of the reasons for which leave may be used under the FFCRA.
As discussed in our prior post, an employee may take leave under the FFCRA when the employee is “unable to work (or telework) due to a need for leave because” the employee: (1) “is subject to a Federal, State or local quarantine or isolation order related to COVID-19”; (2) “has been advised by a health care provider to self-quarantine due to concerns related to COVID-19”; (3) “is experiencing symptoms of COVID-19 and seeking a medical diagnosis”; (4) “is caring for an individual who is subject” to an order or advice from a health care provider described in reasons (1) or (2); (5) “is caring for a son or daughter of such employee if the school or place of care of the son or daughter has been closed, or the child care provider of such son or daughter is unavailable, due to COVID-19 precautions”; or (6) “is experiencing any other substantially similar condition” identified by the Secretary of Health and Human Services (HHS). The U.S. Department of Labor (DOL) has issued regulations and Q&As that provide further information about the FFCRA qualifying leave reasons; for details, see our post here.
Following are key considerations regarding DE paid leave:
- Health care provider exemption. DC has adopted the FFCRA’s broad definition of “health care provider” (discussed in our post here). Note, however, that whereas the FFCRA permits employers to exempt specific employees who meet the definition of health care provider from the FFCRA leave requirements, employers who are “health care providers” are themselves automatically exempted from providing DE paid leave to any of their employees.
- Amount of leave and rate of pay. Full-time employees are entitled to up to two weeks (80 hours) of DE paid leave, and part-time employees are entitled to “the usual number of hours” worked in a two-week period. Employees receive 100 percent of their “regular rate of pay” for any DE paid leave reason, and no less than the DC minimum wage. Unlike the FFCRA, there are no caps on the amount of DE paid leave that can be paid to an individual employee per day or in the aggregate.
- No tax credit. DE paid leave is fully paid by employers and not offset by tax credits as in the FFCRA (see our post here).
- Coordination with other leave. DE paid leave is in addition to FFCRA leave and any other paid leave available by law or the employer’s policies. However, the employer may require employees to exhaust other available sources of leave prior to using DE paid leave. Additionally, if an employee exhausts DE paid leave and has a continued need to be absent, the employer must inform the employee of any paid or unpaid leave benefits available to the employee. Employers will need to carefully track COVID-19 related leave requests and the amount of leave provided. Employers can consider requiring employees to exhaust FFCRA leave benefits before using DOE sick leave, since leave for qualifying leave reasons (4) and (5) is paid at 2/3 the employee’s regular rate under the FFCRA.
- Notice and certification of need for leave. Employees may be required to give 48 hours’ notice of the need to use DE paid leave, or in the event of an emergency, reasonable notice. Employers cannot require certification unless the employee uses three or more consecutive work days of paid leave. The certification cannot be required until one week after return to work. And “[a]n employer that does not contribute payments toward a health insurance plan on behalf of the employee” is not permitted to require certification at all.
During a public health emergency declared by the Mayor such as the COVID-19 pandemic, “[a]n employee who is unable to work as a result of the circumstances giving rise to the public health emergency” is entitled to DOE leave as a new category of leave under the DC FMLA. Specifically, “a recommendation from the Mayor, Department of Health, any other District or federal agency, or a medical professional that the employee self-quarantine or self isolate shall serve as certification of the need for such leave, and, in the case of a government mandated quarantine or isolation, the declaration of public health emergency shall serve as certification of the need for such leave.”
Employees are entitled to 16 weeks of family leave and 16 weeks of medical leave under the DC FMLA; however, DOE leave lasts for the duration of the declared public health emergency. The DC declaration of public health emergency due to COVID-19 is currently in effect through May 15, 2020. Both the declaration and the new DC laws creating COVID-19 related leave could be extended.
Notably, key terms such as “unable to work,” “quarantine,” and “isolate” in the DOE leave law are undefined. Thus, it is unclear whether these terms are meant to be construed consistently with the FFCRA. Because it is part of the DC FMLA, DOE leave is almost certainly intended to be unpaid leave. It is unclear whether other provisions of the DC FMLA that apply to the family and medical leave entitlements—namely, continuation of benefits and job restoration—apply to DOE leave. We hope DC will issue guidance to clarify these issues in the near future.
For assistance complying with the DC COVID-19 leave laws, the FFCRA, or any other issues affecting your workplace, please contact one of the authors of this post or the Hogan Lovells attorney with whom you regularly work.