On April 10, the District of Columbia enacted the COVID-19 Response Supplemental Emergency Amendment Act of 2020 (the Act). Among other things, the Act amends the District’s sick leave law (the Accrued Sick and Safe Leave Act of 2008) by creating a new category of “emergency” sick leave for reasons related to the coronavirus pandemic. This is the District’s second expansion of leave for D.C. employees in light of the COVID-19 crisis, following the March 17 amendment to the D.C. Family and Medical Leave Act granting employees unpaid job-protected leave for coronavirus-related reasons.
The Act also expands the circumstances in which District residents who lost work due to the pandemic can receive unemployment insurance benefits. The Act is effective as of April 10 and will remain in effect for 90 days, but the legislature is expected to take further action that will keep the Act in effect for at least 270 days.
Expansion of Sick Leave
Under the Act, employers with between 50 and 499 employees that are not healthcare providers must provide two full weeks of paid sick leave—up to 80 hours—for employees who need to take leave for any reason for which employees may take leave under the federal Families First Coronavirus Response Act. As discussed in a prior alert, those reasons are that the employee is unable to work (or unable to telework) due to a need for leave because the employee:
- Is subject to a federal, state or local quarantine or isolation order related to COVID-19;
- Has been advised by a healthcare provider to self-quarantine related to COVID-19;
- Is experiencing COVID-19 symptoms and is seeking a medical diagnosis;
- Is caring for an individual subject to an order described in (1) or self-quarantine as described in (2);
- Is caring for a child whose school or place of care is closed (or whose child care provider is unavailable) for reasons related to COVID-19; or
- Is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services, in consultation with the Secretaries of Labor and the Treasury.
“Healthcare providers” are excluded from the Act’s sick leave requirements. Those are defined as any doctor’s office, hospital, healthcare center, clinic, postsecondary educational institution offering healthcare instruction, medical school, local health department or agency, nursing facility, retirement facility, nursing home, home healthcare provider, facility that performs laboratory or medical testing, pharmacy, or any similar institution, employer, or entity. They also include any permanent or temporary institution, facility, location, or site where medical services that are similar to such institutions, are provided.
Leave must be paid at the employee’s regular rate of pay (for employees without a regular rate, leave is paid pursuant to a calculation based on all gross earnings in the most-recent two-week period). Employees who have worked for the employer for at least 15 days are eligible to take leave under the Act and may not be required to provide more than 48 hours’ notice of the need to take leave (“reasonable” notice is otherwise required in the event of an emergency). Employers may not require employees to search for or identify a replacement employee to fill in for the employee while he or she is taking leave.
Employers can only require certification of the need for leave if the employee uses three or more consecutive working days of paid leave, and cannot require that the certification be provided sooner than one week after the employee returns to work. An employer may not require certification at all, however, if it does not contribute toward health insurance payments on behalf of the employee.
This leave is in addition to any other leave the employee may take under federal or District law, or employer policy. However, employers may require that employees first exhaust any such leave before taking leave under the Act. If an employee exhausts leave under the Act and informs the employer that additional leave is needed, the employer must inform the employee of any other paid or unpaid leave to which the employee may be entitled under the law or the employer’s policies.
Leave under the Act remains available as long as the mayor’s declaration of public health emergency is in effect.
Expansion of Unemployment Insurance
The Act expands eligibility for the District’s unemployment insurance (UI) benefits during the time the mayor’s declaration of public emergency is in effect. During this time, individuals who “otherwise would not qualify” for UI benefits may be eligible to receive them, including those who are self-employed, seeking part-time work or do not have a sufficient work history. The Act also removes, for the duration of the public health emergency, the usual seven-day waiting period for eligibility for UI benefits and the requirement that employees must actively be searching for work. Finally, the Act provides the UI director “broad discretion” to waive any other eligibility requirements (other than physical ability and availability requirements) she deems in the public interest during the coronavirus pandemic.
What Should District Employers Do Now?
Employers in the District must notify their employees of their new rights to take leave under the Act, and provide the leave to eligible employees who need it. For additional assistance with compliance and concerns regarding the response to COVID-19, please reach out to a member of the Employment and Labor team at Manatt.
Read the full text of the Act here.
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