On November 13, 2008, the District of Columbia Accrued Sick and Safe Leave Act (the Sick Leave Act, codified at D.C. Code Ann. § 32-131.01 et seq.) becomes effective, making the District one of only two jurisdictions in the United States that require employers to provide their employees paid sick leave. The Sick Leave Act will have a significant impact on employers with offices in Washington, D.C. This alert highlights the main features of the Act and the compliance issues employers now face.
Paid Sick Leave Requirements
The Sick Leave Act requires employers to provide their employees in Washington, D.C. paid sick leave. The amount of paid sick leave an employer is required to provide varies based on the employer’s average monthly number of
full-time equivalent employees for the prior calendar year. The Sick Leave Act does not specify whether the measure includes only employees based in Washington, D.C. or all employees company-wide. This issue may be resolved in forthcoming regulations interpreting the Act.
An employer with 24 or fewer full-time equivalent employees must provide each employee one hour of paid sick leave for every 87 hours worked, up to a maximum of three days per calendar year. An employer with 25 to 99 full-time equivalent employees must provide each employee one hour of paid sick leave for every 43 hours worked, up to a maximum of five days per calendar year. An employer with 100 or more full-time equivalent employees must provide each employee one hour of paid sick leave for every 37 hours worked, up to a maximum of seven days per calendar year. Employees who are exempt from overtime payment under the Fair Labor Standards Act are not entitled to accrue sick leave for overtime hours worked.
Unused accrued leave must carry over annually, but employees are not entitled to use in one year more sick leave days than the maximum number of sick leave days that may be accumulated in one year under the Act. Employers are not required to reimburse an employee for unused accrued sick leave upon the employee’s termination or resignation.
Employees Entitled to Paid Sick Leave
Only employees, as defined by the District of Columbia Family and Medical Leave Act (DC FMLA, codified at D.C. Code Ann. § 32-501 et seq.), are entitled to paid sick leave. The DC FMLA defines employees as workers who have worked for an employer for one year “without a break in service,” and who have worked at least 1,000 hours during the year period immediately preceding the leave request. Excluded from the Act’s requirements are independent contractors and certain categories of employees, such as health care workers who choose to participate in a premium pay program. Employees who do not suffer a loss of income due to absence at work are not entitled to paid sick leave under the Act.
The Sick Leave Act states that employees begin accruing paid sick leave upon employment, and that employees may begin using accrued sick leave after 90 days of service. However, this latter requirement is in conflict with the Act’s definition of “employee,” borrowed from the DC FMLA, which provides that an individual is not an “employee” unless and until he or she has been employed by his or her employer “for 1 year without a break in service.” It is therefore unclear whether an individual may begin taking sick leave after 90 days of service, or must wait until becoming an “employee” after one year of continuous service. Forthcoming regulations may clarify when employees can begin using paid sick leave.
Permissible Uses of Paid Sick Leave
Employees may use sick leave for absences resulting from their own physical or mental illness, injury, or medical condition, or resulting from obtaining professional medical diagnosis or care, or preventive medical care. Employees may also use sick leave to care for a family member (including a child, parent, spouse, or domestic partner) who suffers from such condition or needs preventive care. Additionally, if an employee or an employee’s family member is a victim of stalking, domestic violence, or sexual abuse, the employee may use sick leave for absences directly related to social or legal services resulting from the stalking, domestic violence, or sexual abuse.
Employee Responsibilities
The Sick Leave Act mandates that employees make reasonable efforts to schedule paid sick leave in a manner that does not unduly disrupt the employer’s operations. Employees will be able to use sick leave upon providing employers a written request that states the reason for the absence and the expected duration. If the leave is foreseeable, the employee must provide a request at least 10 days in advance, or as early as possible. If the leave is unforeseeable, the employee should make an oral request as soon as possible. In case of an emergency, the employee should notify the employer prior to the start of the next work shift or within 24 hours of the onset of the emergency, whichever occurs sooner.
When sick leave is taken for three or more consecutive days, an employer may request that the reason for the absence be certified by (1) a signed document from a health care provider, (2) a police report indicating that the employee or employee family member was a victim of stalking, domestic violence, or sexual abuse, (3) a court order, or (4) a signed statement from a counselor or other advocate affirming that the employee or employee family member is involved in a legal action related to stalking, domestic violence, or sexual abuse. If the employer requests certification, the employee shall provide it upon return to work.
Effect on Collective Bargaining Agreements and Existing Paid Leave Policies
For collective bargaining agreements in effect on May 13, 2008, the Sick Leave Act applies on termination of the collective bargaining agreement or on November 13, 2009, whichever is earlier.
Employers whose policies are presumed equivalent to the Sick Leave Act are not required to modify their existing policies. An employer’s paid leave policy will be presumed equivalent to the Sick Leave Act’s requirements if the policy allows employees to access and accrue sick leave at a rate at least equal to the Act’s required rate or to use leave for the same purposes laid out in the Act.
Exemption
An employer may be exempted from the Sick Leave Act’s requirements if the employer can demonstrate that compliance would cause hardship. It is expected that rules defining hardship and explaining what employers must prove to demonstrate hardship will be issued.
Notice and Enforcement
Employers are required to post and maintain a notice summarizing the pertinent provisions of the Sick Leave Act and provide instructions on filing a complaint under the Act in a conspicuous place. Employers who willfully violate the notice requirement will be subject to a civil penalty of up to $100 for each day the employer fails to post the notice, to a maximum of $500.
The Sick Leave Act prohibits employers from retaliating against employees for opposing an employer practice that is unlawful under the Act, for filing a charge or participating in a proceeding under the Act, or for using paid leave provided under the Act. An employer found to have willfully violated the Act’s requirements shall be subject to a civil penalty of $500 for the first offense, $750 for the second offense, and $1,000 for the third and each subsequent offense. The Sick Leave Act does not provide a private cause of action.
Compliance
Employers should examine their current leave policies and collective bargaining agreements to ensure compliance with the Sick Leave Act, and make modifications to leave policies if necessary. Employers should also keep abreast of forthcoming regulations that will further define and clarify the Act’s requirements. Employers are encouraged to consult with counsel at O’Melveny & Myers for assistance in adopting or modifying leave policies to comply with the Sick Leave Act’s requirements.