Employment Law Update

The District of Columbia is one of a small number of jurisdictions which mandates that employers provide paid sick leave benefits. Under the “Accrued Sick and Safe Leave Act of 2008” (“ASSLA”), eligible employees are entitled to take sick leave to care for themselves or an ill family member and “safe” leave if the employee or a family member is the victim of stalking, domestic violence or sexual abuse. In June 2010, the Department of Employment Services issued long awaited regulations and, in October 2010, the Mayor’s Office issued a mandatory poster. These moves may bring new attention to this relatively new law.
What Notice Is an Employer Required To Provide?
Effective November 2010, employers are required to post, in a conspicuous place, a notice issued by the D.C. Department of Employment Services in a conspicuous place that sets forth pertinent provisions of the Act. Each employer will be responsible for posting the notice in all languages spoken by its employees. An employer who willfully fails to post the required notice is liable for a civil penalty of $100 a day, not to exceed $500.
Which Employers Are Covered?
ASSLA applies to all District of Columbia employers.
Which Employees Are Covered?
All employees in the District are covered by ASSLA, except:

• Independent contractors;
  
• Full time students employed for less than 25 hours a week by the institution where they are enrolled, or as part of the District’s “Year Round Program for Youth”;
  
• Healthcare workers who voluntarily participate in a “premium pay program” pursuant to which employees may elect to receive extra pay in lieu of benefits;
  
• Restaurant wait staff and bartenders who work for a combination of wages and tips.

Independent contractors are not employees and are not covered under ASSLA.
How Much Leave Do Employers Have To Provide?
The amount of leave employers have to provide under ASSLA depends upon the size of the employer:

Employees exempt from overtime under the FLSA do not accrue leave hours for hours worked in excess of 40 in a week.
For the purposes of counting the number of employees, the Act defines the term “employee” to include 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 during the past 12 months and who:

• Works in D.C. for the employer 100% of his or her working time, or;
  
• Is employed by the employer in more than one location and spends more than 50% of his or her working time in D.C., or;
  
• hose employment is based in D.C, and who regularly spends a substantial part of his or her time working for the employer in D.C. and who does not spend more than 50% of his or her work-time working for the employer in any particular state.

For What Purposes Can Leave Be Used?
Leave accrued under ASSLA may be used by an employee for an absence caused by his/her own physical or mental illness, injury or medical condition, or to obtain a medical diagnosis or care. Employees may also use ASSLA leave to care for a family member who is ill or injured, or who needs to seek a diagnosis or medical care. So-called “safe” leave may be used by employees to cover an absence if the employee or a family member is a victim of stalking, domestic violence or sexual abuse.
Who Is Included Within the Definition of “Family Member”?
Covered family members include an employee’s:

• spouse or domestic partner
  
• parents of a spouse
  
• children (including foster children and grandchildren)
  
• the spouses of children
  
• parents
  
• brothers and sisters
  
• the spouses of brothers and sisters

“Family members” also include children who live with the employee and for whom the employee permanently assumes and discharges parental responsibility, and a person with whom the employee shares or has shared, for not less than 12 months, a mutual residence and with whom the employee maintains a committed relationship.
How and When May Employees Exercise Their Right to Use Accrued Leave?
Employees do not accrue or become eligible to use “sick and safe” leave until they work for the same employer for one year without a break in service and work at least 1,000 hours during the year.
Unused ASSLA leave accrued during a year must be carried over. However, under the law an employee is not entitled to use in a year more than the maximum amount of leave accrued annually under ASSLA, unless the employer allows otherwise. As a result, while employees may accumulate and carry over an unlimited amount of ASSLA leave, they can be limited to using only up to the maximum cap of 3, 5 or 7 days each year. Unused ASSLA leave is not required to be paid out upon termination of employment.
What Notice Must Employees Give?
Employees are required to provide written notice requesting ASSLA leave which sets forth the reason for the leave and its anticipated duration. If the leave is foreseeable, the request must be submitted at least ten days in advance, or as early as possible. If the leave is unforeseeable, an oral request for the paid leave is to be made prior to the start of the shift that will be missed. In emergencies, where advance notice is not possible, the employee is to provide notice at the start of the next work shift, or within 24 hours, whichever is sooner.
What Type of Medical Certification May Employers Require?
Employers may require that ASSLA leave of three or more days be supported by “reasonable” certification. Such certification may include:

• signed certification from a health care professional of the type allowed under the D.C. FMLA law;
  
• a police report indicating that the employee was a victim of stalking, domestic violence or sexual abuse;
  
• a court order; or
  
• a signed statement from a victim and witness advocate, or domestic violence counselor, affirming the employee is involved in a legal action related to stalking, domestic violence or sexual abuse.

The employee must provide the certification upon return to work or one business day thereafter.
Employers may establish and enforce a policy requiring more frequent certifications from an employee if there is evidence that the employee is abusing ASSLA leave. A pattern of abuse may be evidenced by: (i) consistent taking of leave without the notice required by the act or taking leave on days for which vacation leave has been denied; (ii) a pattern of taking leave on days where the employee is scheduled to perform duties perceived as undesirable or when customer volume is high, and ; (iii) a pattern of taking leave on Mondays, Fridays or the day immediately preceding or following a holiday.
Prohibited Acts and Penalties
ASSLA makes it illegal to interfere with, restrain or deny an employee’s exercise of rights under the Act. The Act also contains an anti-retaliation provision, which prohibits employers from taking an adverse action against an employee who opposes any act made illegal by ASSLA, files or testifies in a proceeding against the employer, or uses ASSLA leave. Employers who willfully violate ASSLA are subject to a civil penalty of $500 for the first offense, $750 for the second offense and $1,000 for each subsequent offense. The Act does not create any private cause of action.
Existing Polices and Collective Bargaining Agreements
As a practical matter, many employers already provide paid leave equal to or in excess of what is required under ASSLA, and ASSLA does not create an obligation for such employers to provide additional leave. The law expressly states that it does not prevent employers from providing more generous leave benefits than are required under the Act. Similarly, ASSLA does not affect an employer’s obligation to comply with any collective bargaining agreement that provides greater paid leave rights than does the Act. In addition, ASSLA’s leave requirements may be waived in return for three or more paid leave days under the terms of a collective bargaining agreement.
What Steps Should Employers Take?
Employers should educate HR/payroll staff on how to properly account for ASSLA leave and modify their leave and absenteeism policies where necessary. For example, so-called “use it or lose it” policies will have to be modified to allow carry-over of ASSLA leave and employers may want to specify the applicable maximum number of ASSLA days which employees may use in a year. It is also advisable that employers review absenteeism polices, many of which impose disciplinary actions based on the number of absences, to ensure that employees are not sanctioned for absences protected under the new law.