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The District of Columbia's New Paid Sick Leave Law Goes Into Effect This Week

November 12, 2008

Beginning this week, employers in Washington, D.C. are required to provide paid sick and "safe" leave benefits to their employees. In May, 2008, the District of Columbia passed the Accrued Sick and Safe Leave Act of 2008 ("Act"). Employers must comply with the Act's requirements by November 13, 2008. For employers with collective bargaining agreements ("CBA"), the Act will apply to represented employees on the earlier of the date of the termination of the CBA or within 18 months after November 13, 2008.

Listed below are some of the important details about the new law. You should seek specific advice for your particular company, however, to ensure compliance with the new law, and to understand some important exemptions that might apply to your business or certain employees.

Who is Subject to the Act?
The Act applies to all employers in the District of Columbia, including for-profit and non-profit businesses, regardless of their size. The Act gives the Mayor the authority to create exemptions, by rule, for certain businesses based on demonstrated hardship.

While the Act applies to most D.C. employees, it specifically excludes from its coverage restaurant wait staff or bartenders who receive income based on a combination of tips and wages. The Act also excludes independent contractors, students, and health care workers who participate in premium pay programs which provide for extra pay in lieu of benefits.

How Much Paid Leave is Required?
The amount of paid leave required under the Act varies depending on (1) the number of employees the employer has, and (2) the number of hours an employee works. Under the Act, employers must provide the following amounts of accrued paid leave to full-time employees:

  • Employers with 100 or more employees must provide employees with one hour of paid leave for every 37 hours worked, not to exceed 7 days a year;
  • Employers with 25 to 99 employees must provide one hour of paid leave for every 43 hours worked, not to exceed 5 days a year; and
  • Employers with 24 or fewer employees must provide one hour of paid leave for every 87 hours worked, not to exceed 3 days per year.

Part-time employees accrue paid leave on a pro-rata basis.

When Can Employees Use Their Accrued Leave?
As written, the Act contains an internal inconsistency regarding when an employee may begin using paid leave under the Act. One section of the Act states that employees begin accruing paid leave immediately upon hire, and are eligible to begin using the accrued leave once they have completed 90 days of service. The Act was amended at the last minute to define the term "employee" as an individual who has worked for a minimum of one year and at least 1,000 hours. Accordingly, if an employee does not become covered by the Act until he or she has amassed one year of service, then the 90-day waiting period appears to be immaterial and merely the inadvertent result of the last minute amendment. Although the legislative history of the Act suggests that the waiting period should be one year, this inconsistency still needs to be resolved. We assume this issue will be addressed in the interpretative regulations that will be issued by the District of Columbia government.

For What Reasons Is Paid Leave Available Under the Act?
Eligible employees may use paid leave under the Act for the following reasons:

  • An employee's illness;
  • An illness or injury of an employee's family member;
  • Medical diagnosis or care of the employee or the employee's family member; and
  • Time-off by an employee or family member who is the victim of stalking, domestic violence and/or sexual abuse or time-off to seek medical, social or legal services related to one of these incidents.

Employers may require that employees provide written substantiation or "certification" of the reason for any request for paid leave of three or more consecutive days. The employee may present the written certification upon return to work.

What Happens to Accrued but Unused Leave?
Employees may carry over unused, accrued paid sick leave. However, unless the employer specifies otherwise, employees are not entitled, in any given year, to use more than the minimum number of paid sick leave days required under the Act. Thus, this restriction may effectively preclude carry-over of some amount of accrued paid leave.

Importantly, nothing in the Act requires employers to pay employees for unused sick leave upon termination of their employment.

What Notice Must Employees Provide Regarding the Use of Leave?
The Act imposes notice requirements upon employees who wish to take paid leave. If the need for leave is foreseeable, employees must provide notice at least 10 days in advance (or more if possible). The request should also include an explanation of the reason for the leave and the expected length of the leave. If the need for leave is not foreseeable, the employee is required to request leave prior to the start of the shift on which the employee is scheduled to work. In emergency situations where advance notice is not possible, employees must notify the employer prior to start of the next shift, or within 24 hours after the emergency, whichever is sooner. In addition, employees are required to make reasonable efforts to schedule paid leave in a manner that does not unduly disrupt the employer's operations where possible.

How Does the Act Affect Existing Paid Leave Policies?
Nothing under the Act requires employers that already have existing paid leave policies that are at least "equivalent" to the minimum requirements of the Act, to change or amend their policies. The District of Columbia has not yet issued regulations under the Act to provide guidance on the meaning of "equivalent." To be safe, employers should ensure that their existing paid leave policies at least provide for the minimum number of days off set forth in the Act and permit employees to take time off in the enumerated circumstances.

It should be noted that nothing in the Act is intended to reduce greater paid leave rights or protections extended to employees by any agreement, contract or benefit program or plan.

What Penalties May Be Imposed Upon Employers for Non-Compliance?
The District of Columbia Mayor's Office is required to prepare a notice that summarizes the rights and complaint procedures provided by the Act. The Mayor's Office has not yet issued the required notice. Once the notice is issued, employers will be required to post the notice in a conspicuous place to avoid penalties under the Act. Employers who willfully violate this requirement will be subject to civil penalties of up to $100 per day, not to exceed at total of $500.

In addition, employers are prohibited from interfering with employees' rights under the Act, and from discriminating against or discharging employees who exercise their right to paid leave under the Act. Employers who violate these provisions are subject to penalties of $500 for the first offense, $750 for the second offense, and $1,000 for the third and each subsequent offense.

What Should Employers Be Doing Now?
Employers should immediately review their existing leave policies. Employers that have a paid leave policy should ensure that the policy permits employees to take paid sick leave in the circumstances enumerated by the Act. Employers should also ensure that the existing policy allows for the minimum number of paid leave days provided for by the Act. Employers that do not have an existing paid leave policy should develop and implement such a policy on or before November 13, 2008.

As noted above, the District of Columbia is in the process of preparing regulations for the Act. We anticipate that those regulations will, among other things, define what an "equivalent" leave policy means, and clarify whether an employee may use paid leave after 90 days of employment or only after working for one year.

For more information, please contact the professional(s) listed below, or your regular Crowell & Moring contact.

Trina Fairley Barlow
Partner – Washington, D.C.
Phone: +1.202.624.2830
Glenn D. Grant
Senior Counsel – Washington, D.C.
Phone: +1.202.624.2852