On March 17, 2020, the Mayor of the District of Columbia (D.C.), Muriel Bowser, signed the COVID-19 Response Emergency Amendment Act of 2020 (CREA), which amends D.C.’s Family and Medical Leave Act (DCFMLA) to permit leave when an employee is unable to work as a result of the circumstances giving rise to a declared public health emergency. This change affects employers who were not previously covered by the DCFMLA, as this new provision is applicable to every employer with one or more employees in D.C. The legislation is temporary, however, and will expire on June 15, 2020, absent any extensions.
Generally, the DCFMLA requires covered employers to provide 16 weeks of unpaid job‐protected medical leave every 24 months to eligible employees with a serious health condition. In addition to the available medical leave, eligible employees may take up to 16 weeks of unpaid job-protected family leave every 24 months for the birth or adoption of a child or to care for a family member with a serious health condition. The CREA creates an additional, independent category of DCFMLA leave called Declaration of Emergency (DOE) leave.
DOE Leave Is Available for Duration of Declared Public Health Emergency
This new DOE leave is available only during a public health emergency declared by the Mayor, to employees who are unable to work as a result of the circumstances giving rise to the public health emergency. DOE leave is not capped at a specific number of weeks, days, or hours, and thus is essentially indefinite during the period of the public health emergency. In addition, the CREA does not define or place limitations on the potential underlying reasons an employee may be unable to work “as a result of the circumstances giving rise to the public health emergency.” As a result, DOE leave is arguably a very broad category of leave.
Employers Can Require Certification of Need for DOE Leave
Employers may request certification of an employee’s need for DOE leave. The CREA states that “a recommendation from the Mayor, Department of Health, any other District or federal agency, or a medical professional that the employee self-quarantine or self-isolate shall serve as certification of the need for such leave, and, in the case of a government-mandated quarantine or isolation, the declaration of public health emergency shall serve as certification of the need for such leave.” The legislation does not specify a timeframe for requesting or requiring return of the certification, nor does it provide guidance on whether an employer may delay or deny requested leave based on an insufficient or untimely certification.
Certain DCFMLA Eligibility Criteria Waived for DOE Leave
Employees are eligible for unpaid DCFMLA leave when they have been employed by their covered employer for at least one year without a break in service, and have worked at least 1,000 hours during the 12-month period immediately preceding the requested leave. The CREA waives the one-year-of-service and 1,000 hours worked requirements for employees requesting DOE leave who have been ordered or recommended to self-quarantine or isolate by a medical professional, the Department of Health, or other D.C. or federal agency. This means that many D.C. employees who are not eligible for medical or family leave under the DCFMLA may still qualify for DOE leave and its associated job protection.
OHR Enforcement Guidance on DOE Leave
On April 20, 2020, the D.C. Office of Human Rights (OHR) issued Enforcement Guidance 20-001 on the CREA. The guidance provides clarity on several key issues not directly addressed by the text of the legislation:
- Notice Requirements: the OHR has published a Workplace Poster for employers to use to satisfy the CREA notice requirements, which include informing employees of the new rights under the DCFMLA created by the CREA. All employers with one or more employees in D.C. must post this notice in a conspicuous place and notify eligible employees of DOE leave as soon as they become eligible or may become eligible under the prescribed circumstances.
- DOE Leave for School Closures: if an eligible employee who is caregiver of a child is unable to work due to the closure of the child’s school or childcare facility in connection with the coronavirus emergency, the employee may take DOE leave. The Enforcement Guidance suggests that the declaration of health emergency is sufficient certification to support a request a DOE leave under those circumstances.
- Teleworking Outside D.C. Is Not Disqualifying: employees of covered employers who typically work in D.C. but are temporarily teleworking outside of D.C. due to the COVID-19 pandemic will not lose eligibility for DCFMLA leave (including DOE leave) so long as their primary job site was in D.C. prior to the pandemic.
While the guidance is instructive on the topics above, it also creates confusion by suggesting that an employee’s employer must have 20 or more employees who work in D.C. for the employee to be eligible for DOE leave under the DCFMLA (see FAQs 7-9). In contrast, the legislation and applicable D.C. Code provisions clearly state that all employers are covered by the DCFMLA “regardless of the number of persons in the District that the employer employs” for purposes of providing DOE leave to an otherwise eligible D.C. employee. Employers would be wise to take the conservative course and extend DOE leave under qualifying circumstances if the employer has at least one employee who works in D.C.
D.C. Also Enacts COVID-19 Related Expansions to UI Benefits and Paid Sick Leave Law
In addition to expanding the DCFMLA, the CREA expands COVID-19 related eligibility for D.C. unemployment insurance benefits, creates a small business grant program, and provides numerous additional protections for D.C. businesses and residents that are not employment related. We encourage those individuals who live, work, or own property in D.C. to read the legislation in full, as well as the subsequently enacted supplemental legislation aptly named the COVID-19 Response Supplemental Emergency Amendment Act of 2020 (D.C. Act 23-286). The supplemental legislation, among other things, temporarily amends the D.C. Accrued Sick and Safe Leave Act to require covered employers with 50-499 employees to provide eligible employees with up to 80 hours of COVID-19 related paid sick leave for reasons similar to those outlined in the federal Families First Coronavirus Response Act.
What Employers Should Do
Employers should continue to consult with their attorneys and third-party leave administrators to analyze requests for time off related to the coronavirus pandemic under the panoply of new COVID-19 leave laws. Employers also should examine and revise their internal leave policies and procedures applicable to employees in D.C. to ensure compliance following the legislative expansion of the DCFMLA and Accrued Sick and Safe Leave Act. Covered employers will need to extend leave to employees eligible for these new, temporary leave reasons. Effective communication between employers and employees is vital at this time, so provide adequate notice under the law, especially if employees were not previously eligible for DCFMLA leave. Finally, make sure that managerial and human resources staff understand the changes and honor the expanded leave entitlements and associated job protections granted to impacted workers.
What ReedGroup is Doing
At ReedGroup, we are updating our leave management software, notifications, and processes to reflect the changes in D.C. law. ReedGroup will ensure our clients’ employees in D.C. are considered for DCFMLA eligibility when requesting leave for reasons related to a public health emergency declared by the Mayor of D.C, and will track job protection accordingly.
If you’re looking for assistance managing claims or to ensure compliance across your organization, ReedGroup has solutions for you. Check out our offerings here.
Information provided on this blog is intended for general educational use. It is not intended to provide legal advice. ReedGroup does not provide legal services. Consult an attorney for legal advice on this or any other topic.