D.C. Employment Law: District of Columbia Accrued Sick and Safe Leave Act ("ASSLA") Takes Effect Providing Employees With Paid Sick Leave
Effective November 13, 2008, the District of Columbia's new sick leave law requires employers to provide employees with up to seven days (varies based on employer size) of paid sick leave for absences due to the employee or family member's medical condition, domestic violence or sexual abuse. While the Federal Government has paid sick-leave policies for federal employees, for now, no other jurisdiction in the Washington Metro area (Maryland or Virginia) requires employers to provide paid sick leave.
The Mayor is expected to issue rules implementing the new sick leave law within 60 days of the effective date. It is my hope that the regulations will clarify the following two issues that are, at best, ambiguous in the law: (a) whether the ASSLA applies only to employees who satisfy the DCFMLA's time and hour restrictions; and (b) the employer's control over an employee's use of carryover sick leave.
Please see the following Questions & Answers for highlights of the new law:
Which employers must provide sick leave under D.C.'s sick leave law?
All legal entities, including the District of Columbia Government, must provide sick leave. The law provides for hardship exemptions, subject to approval by the Mayor.
Which employees are entitled to sick leave in the District of Columbia?
The ASSLA adopts the meaning of "employee" set forth in the District of Columbia Family and Medical Leave Act of 1990 (DCFMLA). The following individuals are not covered by the law:
Independent contractors;
Certain student workers;
Certain health care workers; and
Restaurant wait staff and bartenders who receive a combination of tips and wages.
What are an employer's obligations under the District of Columbia's sick leave law?
In general, employers must provide between 3-7 days (see below for variations) of paid leave annually to qualified employees for covered conditions and absences. The ASSLA prohibits employers from denying employees the rights provided by the Act, interfering with rights granted by the Act, or discharging or otherwise discriminating against an employee because the employee opposed unlawful acts or pursued rights under the Act. Employers are also required to post a notice to be prescribed by the D.C. Mayor setting forth the pertinent provisions of the ASSLA.
How much leave must an employer provide under the District of Columbia's sick leave law?
The number of paid sick days an employer must provide to an employee varies as follows:
Employers with 100 or more employees: At least 1 hour of paid leave for every 37 hours worked by an employee, up to a maximum of 7 days per calendar year.
Employers with 25-99 employees: At least 1 hour of paid leave for every 43 hours worked, up to a maximum of 5 days per calendar year.
Employers with 24 or fewer employees: At least 1 hour of paid leave for every 87 hours worked, up to a maximum of 3 days per calendar year.
What absences are covered under the District of Columbia's sick leave law?
Employees may take paid leave under the following circumstances:
Employee's own physical or mental illness, injury or medical condition;
Employee's own professional medical diagnosis or care, or preventive medical care;
Employee's care of a child, parent, spouse, domestic partner, or any other family member's illness, injury, medical condition, diagnosis or preventive medical care; or
Certain absences directly relating to social or legal services resulting from stalking, domestic violence,or sexual abuse of the employee or the employee's family member.
When and how does sick leave accrue under the District of Columbia's sick leave law?
Employees accrue leave upon employment, which may be accessed after 90 days of employment. Leave accrues based on the employer's pay period.
May an employee carryover unused sick leave under the ASSLA?
Yes. The law states that an employee’s unused paid leave accrued during a 12-month period shall carry over annually. The law also provides, however, that "[a]n employee shall not use in one year more than the maximum hours as allowed... unless the employer chooses otherwise."
When an employee is terminated or resigns, does the employer have to pay the employee accrued, unused sick leave?
No. Accrued sick leave does not have to be reimbursed to a departing employee.
How does the District of Columbia sick leave law affect an employer's existing paid sick leave policies?
Employers whose paid sick leave policies are at least equivalent to the requirements of the D.C. sick leave law are not required to modify those policies. Employers may, of course, offer more generous benefits than provided by the D.C. paid sick leave law and are bound by collective bargaining or other contractual agreements that require more generous benefits than mandated by the ASSLA.
What are the employee's obligations under the District of Columbia's sick leave law?
The law states as follows:
The request shall include a reason for the absence involved and the expected duration of the paid leave.If the paid leave is foreseeable, the request shall be provided at least 10 days, or as early as possible, in advance of the paid leave.
If the paid leave is unforeseeable, an oral request for paid leave shall be provided prior to the start of the work shift for which the paid leave is requested.
In the case of an emergency, the employer shall be notified prior to the start of the next work shift or within 24 hours of the onset of the emergency, whichever occurs sooner.
What if an employee wants to make up hours missed by working additional hours or shifts in lieu of using paid sick leave?
According to the law, "[u]pon mutual consent by the employee and the employer, an employee who chooses to work additional hours or shifts during the same or next pay period in lieu of hours or shifts missed, shall not use paid leave; provided, that the employer does not require the employee to work such additional hours or shifts."
Can an employer require medical certfiication for paid sick leave?
Under certain conditions an employer may require "reasonable certification" for an employee's paid leave absence that lasts three or more consecutive days. Confidentiality requirements apply.
What if an employee abuses paid sick leave?
An employer concerned about sick-leave abuse may establish and enforce lawful policies regarding improper use of paid leave or seek more frequent certfications where evidence exists of a "pattern of abuse of paid leave."
What are the penalties for violating the District of Columbia's sick leave law?
Willful violations of the law subject the employer to fines of $500 for the 1st offense, $750 for the 2nd offence, and $1000 for the third and any subsequent offense, which raises the potential for significant damages, particularly in instances involving multiple offenses and/or multiple employees. Violations of the notice posting requirement may result in penalties of up to $500.00.
Who administers the ASSLA?
D.C.'s Department of Employment Services is reponsible for administering the sick leave law.
The foregoing is a summary that is not intended to be used as legal advice. For information about the ASSLA's applicability to your specific business and for advice concerning other employment laws affecting your company, please contact:
Lori J. Searcy, Esq.
Searcy Business Litigation & Employment Law, LLC
1800 Diagonal Road, Suite 600
Alexandria, VA 22314
VA: 703-644-4122
DC: 202-393-1443
email: mail@searcy-law.com
www.searcylawoffices.com
