November 2020

State Updates

 

Washington, DC expands DCFMLA, requires paid leave for COVID-19 updated

10/01/2020

Author: ADP Admin/Wednesday, September 30, 2020/Categories: Compliance Corner , State Compliance Update, Washington, D.C.

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 also temporarily expands the D.C. Family and Medical Leave Act (DCFMLA). The emergency ordinance took effect immediately and has been extended until November 16, 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.

The DCFMLA requires employers with 20 or more employees to provide eligible employees with 16 weeks of unpaid family and medical leave during a 24-month period. To be eligible, an employee must:

  • Have been employed by the employer for at least one year without a break in service; and
  • Worked at least 1,000 hours during the 12-month period immediately preceding the requested leave.

PAID SICK LEAVE EXPANDED:

DC has 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.

DCFMLA EXPANDED:

The emergency ordinance amends the DCFMLA to add a new category of leave called COVID-19 leave. Unlike with the other types of DCFMLA leave, all employers with employees in the District of Columbia must provide COVID-19 leave. Additionally, all employees who have worked for their current employer for at least 30 days are eligible for COVID-19 leave.

COVID-19 LEAVE:

Employees may take leave during COVID-19 if the employee cannot work due to:

  • A recommendation from a healthcare provider that the employee isolate or quarantine, including because the employee or an individual with whom the employee shares a household is at high risk for serious illness from COVID-19;
  • The need to care for a family member or an individual with whom the employee shares a household under a government or health care provider's order to quarantine or isolate; or
  • The need to care for a child whose school or place of care is closed or whose childcare provider is unavailable to the employee.

The leave may be unpaid, but employees may be entitled to paid leave under the federal Families First Coronavirus Response Act (FFCRA).

ELIGIBILITY FOR UNEMPLOYMENT BENEFITS EXPANDED:

The emergency ordinance expands coverage for unemployment benefits to employees who have become partially or fully unemployed because of a public health emergency, including when:

  • They have been quarantined or isolated by the Department of Health or any other applicable district or federal agency;
  • They have self-quarantined or self-isolated in a manner consistent with agency or medical professionals' recommendations or guidance; or
  • Their employer ceased or reduced operations due to an order or guidance from the mayor or the Department of Health or a reduction in business revenue resulting from the circumstances giving rise to the public health emergency.

In such cases, any otherwise eligible employee may receive unemployment benefits regardless of whether the:

  • Employer has provided a definitive date for the employee's return to work; or
  • Employee has a reasonable expectation of continued employment with the current employer.

The emergency ordinance indicates that benefits paid pursuant to this expansion won't be charged to the experience-rating accounts of employers, and there won't be a work-search requirement for affected employees.

COMPLIANCE RECOMMENDATIONS:

Employers with employees in DC should ensure compliance with the leave requirements and provide impacted employees information about expanded unemployment benefits. For details on the emergency ordinance, go here. Keep in mind that the DCFMLA has existing notice and other requirements that may apply, barring further guidance or rules from the district. For details on the DCFMLA, go here. Please contact your dedicated service professional with any questions.

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