HARMON CURRAN NONPROFIT LAW BLOG

On April 10, 2020, the D.C. Mayor signed emergency legislation, effective through July 9, 2020, which requires employers with between 50 and 499 employees to provide additional paid sick leave to their DC employees for COVID-19 related reasons. In addition, the U.S. Department of Labor (DOL) has corrected certain inconsistencies in its previously issued temporary regulations implementing the new leave requirements of the Families First Coronavirus Relief Act (FFCRA).

DC Paid Sick Leave Requirements

The new DC legislation amends DC’s Accrued Sick and Safe Leave Act and requires employers that are not health care providers and have between 50 and 499 employees to provide additional “declared emergency paid leave” to their DC employees.

• • The law applies during the COVID-19 emergency, as declared by the Mayor.
  • Eligible employees are those who have worked for a covered employer for at least 15 days.
  • Leave is available for an absence that would qualify as emergency paid sick leave or expanded Family and Medical Leave under FFCRA.
  • Full-time employees are eligible for an amount of leave that is sufficient to allow an absence for two full weeks or up to 80 hours. Part-time employees are eligible for up to the usual number of hours the employee works in a two-week period.
  • Eligible employees must be paid at their regular rate of pay during the leave.
  • An employer may require that an employee exhaust any available leave under federal or District law or an employer’s own policies prior to use of this additional paid leave.
  • No more than 48 hours’ notice of the need to use leave can be required, and in emergencies only reasonable notice can be required.
  • Employees cannot be required to identify other employees to perform their work during the leave period.
  • Health care certification can only be required for employees using three or more consecutive working days of paid leave, and employees cannot be required to provide it until one week after their return to work. If the employer does not contribute payments toward a health insurance plan for the employee, no certification can be required.

DOL FFCRA Corrections

DOL has made some corrections to the temporary regulations it previously issued. Most notably, DOL has deleted language that reflected its initial view that employers could not require employees to use pre-existing available paid leave concurrently with the expanded paid FMLA leave available under FFCRA. The deleted language was inconsistent with other language in the regulations that was directly contrary and reflected DOL’s updated interpretation of the law.

Under the corrected regulations, if an employee is taking emergency paid sick leave or unpaid expanded FMLA leave (the first two weeks), then the employer can still not require an employee to use pre-existing paid leave, such as paid sick, vacation, or personal leave, to top up the employee’s salary, but can do so with the employee’s consent. Thus, the pay of employees who do not wish to top up their emergency paid sick leave will be capped at the statutory maximums that apply depending on the purpose and type of leave ($511 per day and $5,110 in the aggregate or $200 per day and $2,000 in the aggregate), and employees who take unpaid expanded FMLA leave without substituting either the emergency paid sick leave or any other form of leave will be unpaid during the first two weeks. However, if the employee is taking paid expanded FMLA leave (the additional ten weeks), then the employer can require the employee to take available pre-existing paid leave concurrently and top up their salary, but only with leave such as personal or vacation leave that is by its terms available to care for a child whose school or daycare is closed. As previously stated in the regulations, even if salary is topped up, employers may only claim the tax credit available under the Act for amounts up to the statutory caps.

Please contact us if we can be of help in understanding and implementing the new federal and DC laws.