A new D.C. emergency law titled “Protecting Businesses and Workers from COVID-19 Emergency Amendment Act of 2020” (Act), signed by the Mayor on August 13, 2020, requires all private employers and D.C. agencies to take measures to protect workers from COVID-19 transmission. The Act requires employers immediately to adopt and implement worker protection policies related to social distancing and face coverings. Many employers have already developed workplace safety policies to comply with guidance issued by the CDC (Centers for Disease Control and Prevention) and OSHA (Occupational Health and Safety Administration); however, the Act now makes certain safety policies mandatory. The Act also increases retaliation protections for certain employee conduct related to COVID-19. The Act is effective until November 10, 2020, and may be extended. The particulars of the Act are set forth below.
Worker protection policies
For the duration of the D.C. declared COVID-19 public health emergency (which is currently in effect through October 9, 2020, but may be extended), employers must “adopt and implement social distancing and worker protection policies” to prevent the spread of COVID-19 in their workplaces. The policies must adhere to the Mayor’s Order 2020-080, which clarifies and extends mask-wearing requirements in D.C, or any “subsequent Mayor’s Order.” The Act provides that any subsequent order the Mayor adopts imposing a stricter standard for “personal protective equipment” than applies under the current D.C. mask order will control.
The Act reminds employers that they may adopt policies requiring employees to report positive COVID-19 test results, but employers may not disclose the identities of employees who test positive, except to the D.C. Department of Health (DOH) or other D.C. or federal agencies responsible for contact tracing and containment of COVID-19.
Additionally, the Act reminds employers that they may restrict employees who test positive for COVID-19 from entering the workplace until a medical professional clears the employee to return to work or a period of quarantine recommended by DOH or the CDC has elapsed.
Employers should document their social distancing and worker protection policies in writing and disseminate them to employees, both as a best practice and to demonstrate compliance with the Act and applicable federal and D.C. guidance on COVID-19 safety protocols.
Prohibitions on retaliation
The Act also prohibits retaliation against employees who:
- refuse to serve a customer or client, or who refuse to work within six feet of an individual, who is violating the employer’s workplace protection policies;
- test positive for COVID-19 (provided the employee has not physically reported to the workplace after receiving a positive test result);
- need to quarantine after exposure to someone with COVID-19;
- are sick and awaiting COVID-19 test results;
- are caring (or seeking to care) for someone quarantined who is sick with COVID-19 symptoms or is quarantined; or
- take any action to secure their rights or protections under the Act or to stop a violation of the Act.
Employers face a civil penalty of up to $50 per violation per employee per day for repeated or willful violations of the requirement to adopt social distancing and worker protection policies, and a civil penalty of up to $500 for each violation of the Act’s anti-retaliation provisions. Additionally, the Attorney General is authorized to investigate potential violations (either after receiving a complaint or on the Attorney General’s own volition) and may enforce the Act through a civil action on behalf of one or more employees. In such actions, employers are subject to liability not only for the foregoing penalties, but also for employees’ lost wages, equitable relief, and reasonable attorneys’ fees and costs. The Act does not, however, create a private right of action for employees to sue directly.
All D.C. employers with onsite workers should ensure they have safety policies in place that comply with D.C.’s social distancing and worker protection policy requirements, including the Mayor’s mask order, and regularly check the D.C. coronavirus website and this blog for new orders. Employers should also train managers and supervisors about the Act’s retaliation prohibitions.
Please contact one of the authors of this article or another Hogan Lovells attorney with whom you work with any questions, or for assistance developing legally compliant COVID-19 policies.