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Washington, DC requires paid leave for COVID-19

5/7/20

Author: ADP Admin/Tuesday, May 5, 2020/Categories: Compliance Corner

The District of Columbia has enacted an emergency ordinance that requires employers with 50-499 employees to provide paid leave to employees impacted by COVID-19. The emergency ordinance takes effect immediately and expires on July 9, 2020.

Background:

DC's Accrued Sick and Safe Leave Act ("the Act") requires employers to provide paid leave for an absence resulting from:

·    An employee's, or their family member's, physical or mental illness, injury, or medical condition;

·    An employee's, or their family member's, need to obtain a professional medical diagnosis or care; or

·    Stalking, domestic violence, or sexual abuse and the absence is directly related to medical, social, or legal services for the employee or their family member.

Emergency Ordinance:

On April 10, 2020, DC enacted an emergency ordinance that amends the Act to require that employers with between 50 and 499 employees provide paid leave for any of the reasons required under the federal Families First Coronavirus Response Act (FFCRA). Healthcare providers are exempt.

Use of Paid Leave:

Under the FFCRA (and therefore the emergency ordinance), employees are entitled to use paid leave when they are unable to work (or telework) because of the following reasons:

·    The employee is subject to a federal, state, or local quarantine or isolation order related to COVID-19 or is caring for an individual who is subject to such an order.

·    The employee has been advised by a healthcare provider to self-quarantine due to concerns related to COVID-19 or is caring for an individual who has been advised to self-quarantine.

·    The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis.

·    The employee is caring for their child due to their school or place of care being closed, or their childcare provider is unavailable, due to COVID-19.

·    The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.

Employee Eligibility:

Under the emergency ordinance, employers must provide paid leave to any employee who started work for the employer at least 15 days before the request for leave.

Duration of Leave:

The emergency ordinance requires employers to provide paid leave to an employee in an amount sufficient to ensure that the employee be able to remain away from work for two full weeks (up to 80 hours), or, for part-time employees, the usual number of hours the employee works in a two-week period.

Pay During Leave:

During the leave, employees must be compensated at their regular rate of pay, which must equal or exceed the minimum wage. If an employee doesn't have a regular rate of pay, their regular rate must be determined by dividing their 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.

Employee Notice:

Employees must not be required to provide:

·    More than 48 hours' notice of the need to use the leave in non-emergency situations; or

·    More than reasonable notice of the employee's need to use such leave in the event of an emergency.

Certification:

Employers are prohibited from requiring an employee to provide certification of the need to use paid leave under the ordinance, unless both of the following conditions are met:

·    The employee uses three or more consecutive working days of the paid leave; and

·    The employer contributes payments toward a health insurance plan on behalf of the employee.

Where the employer is permitted to require certification, the employer must give the employee at least one week after their return to work to provide it.

Interplay with Other Leave:

An employer may require that an employee exhaust any available leave under federal or District law or an employer's own policies prior to use of additional leave under the emergency ordinance.

If the employee has exhausted their leave under the emergency ordinance, the employer must inform the employee of any paid or unpaid leave to which the employee may be entitled pursuant to federal law, other District law, or the employer's own policies.

Note: Barring guidance or rules indicating otherwise, this leave must be provided in addition to the leave required under the FFCRA.

Other Changes:

The ordinance also makes technical changes to several unemployment insurance compensation provisions in District law to align with the federal Coronavirus Aid, Relief, and Economic Security (CARES) Act, which expanded unemployment benefits, including who is eligible.

Compliance Recommendations:

Covered employers should ensure compliance with the emergency ordinance's paid leave requirements.

Note: In March, the District of Columbia amended its Family and Medical Leave Act (DCFMLA) to add a new category of leave known as declaration of emergency (DOE) leave. Unlike with the other types of DCFMLA leave, all employers with employees in DC must provide DOE leave. Additionally, all employees who work in DC are eligible for DOE leave, regardless of their length of service and number of hours worked during the 12-month period prior to the leave. Please contact your dedicated service professional with any questions.