While much attention has been paid to leave benefits made available under the federal Families First Coronavirus Response Act (“FFCRA”), the corresponding legislation enacted by the Council of the District of Columbia has gone largely unnoticed. However, the District’s orders contain a different set of requirements, and failure to comply could have serious implications for D.C. employers.
D.C. employers should be mindful of the emergency orders passed by the Council of the District of Columbia and how those orders impact employers’ obligations under other D.C. and federal leave laws – specifically, the D.C. Family and Medical Leave Act (“DCFMLA”), the D.C. Accrued Sick and Safe Leave Act (“ASSLA”), and the federal FFCRA. Employers should also consider how the recent legislation might affect their existing sick leave policies.
- COVID-19 Response Emergency Amendment Act (D.C.)
On March 17, 2020, the Council of the District of Columbia enacted the COVID-19 Response Emergency Amendment Act (“CREA”). The CREA, which applies to all D.C. employers regardless of size, temporarily amends certain provisions of the DCFMLA. The law is set to expire on June 15, 2020.
The CREA affects employee leave in three critical ways. First, it waives the one-year of work and 1000-hour requirement for employees who have been recommended or ordered to self-isolate by a healthcare professional or a D.C. or federal agency. Second, the CREA makes certain employees eligible for declaration of emergency (“DOE”) leave during the public health emergency. DOE leave applies not only to employees who are recommended or ordered to self-isolate by a healthcare provider or D.C. or federal agency but also to any other employees in the event of a government-mandated quarantine or isolation during a public health emergency. Because the CREA does not mandate that DOE leave be paid, there is a presumption that such leave can be unpaid. Third, the CREA clarifies that employees are eligible for DOE leave regardless of the size of their employer.
Apart from those three issues, the CREA does not change any provisions of the DCFMLA or ASSLA (which does not go into effect until July 1, 2020 – more than two weeks after the CREA is set to expire). However, employers should look at their own sick leave policies and consider how those policies might be affected by the CREA. While the public health emergency remains in effect, employers will need to modify and/or make exceptions to their sick leave policies to honor the new leave eligibility requirements created by the CREA.
- COVID-19 Response Supplemental Emergency Amendment Act of 2020 (D.C.)
On April 10, 2020, the D.C. Council enacted the COVID-19 Response Supplemental Emergency Amendment Act of 2020 (“CRSEAA”), which amends the ASSLA. It will remain in effect for up to ninety days. Unlike the CREA, the CRSEAA applies only to employers with fifty or more employers in D.C. Smaller employers need not comply. However, the CRSEAA requires employers with 50-499 employees to provide paid leave, known as “Declared Emergency Leave,” to any employee who would be eligible for such leave under the federal FFCRA (which is discussed in greater detail below). The Declared Emergency Leave provided under the CRSEAA is not in lieu of leave provided under the FFCRA, DCFMLA, or an employer’s policy but rather in addition to the leave available under those acts and policies.
While employees must be employed for at least ninety days before they are eligible for ASSLA leave, employees need only have worked for an employer for fifteen days to be eligible for Declared Emergency Leave under the CRSEAA. Full-time employees who are eligible for Declared Emergency Leave are entitled to receive up to two weeks of paid time off. Employers are required to pay such employees at their regular rate of pay.
- Families First Coronavirus Response Act (Federal)
As an initial matter, the CREA is set to expire on June 15, 2020, and the CRSEAA on July 9, 2020. The federal FFCRA remains in effect until December 31, 2020 – well after its D.C. counterparts are set to expire. Unlike the CREA, but consistent with the CRSEAA, the FFCRA provides for paid leave. The new leave benefits created by the FFCRA include:
- Two weeks of paid sick leave at an employee’s normal rate of pay if the employee is either: (i) subject to quarantine (either by order of a federal, state, or local government or at the advice of a healthcare provider); OR (ii) experiencing symptoms of COVID-19 and seeking a medical diagnosis.
- Two weeks of paid sick leave at two-thirds of the employee’s normal rate of pay if the employee is: (i) unable to work because of the need to care for someone who has been quarantined (as defined in the previous bullet-point); (ii) unable to work because of the need care for a child whose school or childcare provider is closed in connection with COVID-19; OR (iii) experiencing a condition that is substantially similar to COVID-19.
- Up to 10 additional weeks of paid family and medical leave at two-thirds the employee’s normal rate of pay if the employee: (i) has been employed for at least 30 calendar days; and (ii) is unable to work because of the need to care for a child whose school or childcare provider is closed in connection with COVID-19.
The FFCRA provides certain exemptions for healthcare providers and for employers with less than fifty employees who can show that the requirement to provide childcare-related leave would jeopardize their viability as a going concern.
In sum, employers with fewer than fifty employees need to determine how their leave policies are impacted by the CREA and FFCRA and make sure that they comply with both acts while they remain in place. Employers with fifty or more employees must not only provide the leave created under those acts, but also the Declared Emergency Leave made available under the CRSEAA. The state of employee leave laws is undoubtedly more complex than ever during this unprecedented public health emergency. If you or your company have any questions about compliance, please reach out to Erica L. Litovitz, Esq. or another member of Jackson & Campbell’s Employment Law Practice Group.
 Healthcare providers, a term which is defined broadly under the CRSEAA, are exempt from the act’s requirements.