Is Your Sick Leave Policy in Compliance with District of Columbia Law?
In November 2008, the District of Columbia enacted the Accrued Sick and Safe Leave Act of 2008 (“ASSLA”) which requires employers to provide paid sick leave to employees, as well as safe leave for absences related to domestic violence or sexual abuse. Effective March 2014, ASSLA was amended by the Earned Sick and Safe Leave Amendment Act of 2013 which broadens the employees covered under ASSLA, provides for additional recordkeeping, and includes stronger remedies for violations of the law.
What is required under ASSLA? Prior to the amendment to ASSLA, employers had to provide paid sick leave to eligible employees for absences related to physical or mental illness, preventative medical care, caring for a family member, domestic violence, sexual abuse, or stalking. Previously, the term “employee” was defined as an individual who has been employed by the same employer for at least one year without a break in service and who has worked at least 1,000 hours of service with such employer during the previous 12-month period. However, the amendment to ASSLA has re-defined employee to be any individual, whether part-time or full-time, and eliminated the requirement for any length of time of employment. In addition, temporary employees, even if hired through a staffing agency, are now defined as employees under ASSLA. This is significant as many employers’ sick leave policies generally do not apply to part-time employees; however, the amendment to the ASSLA now means that employers must provide part-time employees with paid sick and safe leave. This means an employer must allow all employees to accrue sick leave on their first day of employment; however, the employer may prohibit the employee from using the leave until after the first 90 days of employment.
How are sick and safe leave determined? The amendment did not change the method of determining the sick and safe leave to be provided to employees. The amount of sick leave to be provided is still determined by the number of employees. An employer with 100 or more employees in D.C. shall provide each employee not less than one hour of paid leave for each 37 hours worked, not to exceed seven days of paid leave per calendar year. An employer with 25 to 90 employees in D.C. must provide each employee with not less than one hour paid leave for every 43 hours worked, not to exceed five days of paid leave per calendar year. Lastly, an employer with 24 or fewer employees in D.C. shall provide not less than one hour of paid leave for every 87 hours worked, not to exceed three days of paid leave per calendar year.
Can employees carry over unused leave accrued under ASSLA? Previously under ASSLA, an employee could carry over unused paid leave accrued in one calendar year, so long as the employee did not use more paid leave in one year than the maximum amount of sick leave the employee accrued in a year under ASSLA, unless the employer had a policy that provided otherwise. However, these requirements have now been deleted from the law. Therefore, employees no longer have an annual cap on use of sick and safe leave. This means employers with “use it or lose it” sick and safe leave policies cannot apply those policies since the language of the statute no longer restricts sick and safe leave. However, although an employer cannot cap the leave, an employer is not required to pay employees for accrued but unused sick and safe leave upon termination.
What is required of employers and employees under ASSLA? An employer is still required to post notices regarding ASSLA in conspicuous places. In addition, the amendments did not change the notice employees are required to give before taking sick or safe leave. An employee is expected to give at least ten days written notice of the employee’s intent to use sick or safe leave. In the event ten days’ notice cannot be given, employees should make an oral request for leave prior to the start of the employee’s work day or, in the case of an emergency, prior to the start of the employee’s next work day or within 24 hours of the onset of the emergency. Despite when notice is provided by the employee, the employer may request “reasonable certification” for paid leave absences of three or more consecutive days. Such certification may include a signed document from a health care provider affirming the illness, or a police report or court order indicating the employee or the employee’s family member was a victim of stalking, domestic violence, or sexual abuse.
What if an employer already has a leave policy in place? While ASSLA applies to all employers, an employer that already has a paid leave policy or universal leave policy in place which allows the accrual and usage of leave equivalent to the paid leave described in ASSLA is not required to modify their policy.
Are there any penalties for violation of ASSLA? Under the amendment, an employee now has a private cause of action or administrative action for violation of ASSLA. There is a three-year statute of limitations for civil complainants but the limitations period is tolled if an employee files an administrative complaint within 60 days of the incident or during any period the employer failed to post the required notice. Moreover, the civil penalties for violations of ASSLA were broadened by the amendment. Also, employers are required to maintain documentation of hours worked by employees and paid leave taken for a period of three years. Failure to do so creates a rebuttable presumption that the employer has violated ASSLA.
Accordingly, all D.C. employers should check their policies to make sure they are in compliance with the amendment to ASSLA and, if necessary, seek advice of legal counsel.