December 27, 2016

Although the DCFMLA does not require any paid leave, D.C. Code § 32-514, eight years ago D.C. passed the Accrued Sick and Safe Leave Act of 2008 which does require compensation  for leave of a similar type to that covered by the DCFMLA.  D.C. Code § 32-131.01 et seq; D.C. Mun. Regs. tit 7, §§  3200 - 3299.  The Sick and Safe Leave Act was amended by the Earned Sick and Safe Leave Act of 2013 to expand the paid leave requirement to additional types of workers.  Under the statute, every employer who employs or exercises control over the wages, hours, or working conditions of an employee, regardless of number of employees employed, must provide some paid sick leave.2 D.C. Code § 32-131.02.  The D.C. government is included in the definition of employer.  D.C. Code § 32-131.01.  The amount of leave corresponds to the number of employees an employer employs, as illustrated below.

Employers can determine their total number of employees by counting the average monthly number of full-time equivalent employees in the prior calendar year; the average monthly  number should be calculated by adding the total monthly full-time equivalent employees for each month and dividing that number by 12.  D.C. Code § 32-131.02.  

a. Determining Employee Eligibility for Paid Leave

In determining whether a worker is entitled to paid leave, employers must consider a) whether that individual is an “employee” under the statute and b) the purpose behind the individual’s request for leave.  D.C. Code §§  32-131.02; 32-131.01.  

The term “employee” is defined as “any individual employed by an employer” except for  a volunteer,  lay member elected or appointed to the office of a religious organization and  engaged in religious functions, casual babysitter, independent contractor, student, or health care worker who chose to participate in a premium pay program.  D.C. Code § 32-131.01; D.C. Mun.  Regs. Tit. 7, § 3299.  Employees who work for an employer both as an employee and as a non covered worker accrue paid leave only for the hours worked as an employee.  D.C. Mun. Regs.  tit 7, § 3202.  The law articulates a separate scheme for compensating beauty, hair and nail salon  employees who are paid by commission.  D.C. Code § 32-131.02.  A 2013 amendment to the Act,  the Earned Sick and Safe Leave Act, expanded the Act to protect restaurant and bar workers.   Employers must provide to such workers with a base wage less than minimum wage who  regularly receive tips, commissions, or other gratuities to supplement the base wage at least one  hour of paid leave for every 43 hours worked up to 5 hours per calendar year.  D.C. Code § 32 131.02.  The paid leave compensation is calculated in accordance with the minimum wage.  D.C.  Code § 32-131.02.

An employee may request paid leave for issues related to the employee’s own health or to  care for a child, parent, spouse, domestic partner or other family member who has a physical or  mental illness, injury, or medical condition or as a result of a professional medical diagnosis or  care or for preventive medical care.  D.C. Code § 32-131.02.  There is no requirement that the  illness, injury or condition be “serious.”  D.C. Code § 32-131.02.  An employee may also request  paid leave if the employee or a family member was a victim of stalking, domestic violence, or  sexual abuse.  D.C. Code § 32-131.02.  Leave taken for victims of stalking, domestic violence, or
sexual abuse must be used for activities related to that incident, such as seeking medical attention,  obtaining services from a victim services organization, obtaining counseling, relocating, taking  legal action or “other actions to enhance the physical, psychological, or economic health or  safety of” the victim or enhance the safety of those who associate or work with the employee. 

D.C. Code § 32-131.02.  Employees are required to make “a reasonable effort” to schedule paid  leave “in a manner that does not unduly disrupt the operations of the employer.”  D.C. Code §  32-131.02.  

As with the DCFMLA, “family member” is broadly defined under the Sick and Safe  Leave Act.  The term “family member” encompasses a spouse or domestic partner, parents of  spouse, children including foster children and grandchildren, spouses of children, parents,
brothers and sisters, spouses of brothers and sisters, a child who lives 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 the preceding 12 months, a  mutual residence and with whom the employee maintains a “committed relationship.”  D.C.  Code § 32-131.01.  “Committed relationship” means “a familial relationship between 2  individuals characterized by mutual caring and the sharing of a mutual residence.”  D.C. Code §  32-701.

Moreover, even if an employee has an approved purpose for requesting leave, the  employer need only provide pay if the employee would suffer a loss of income when absent from  work for the days of paid leave.  D.C. Code § 32-131.02.

b. Ensuring Requests for Paid Leave Are Bona Fide   
 To request paid leave, an employee must provide written notification to the employer with the reason for the absence and expected duration.  D.C. Code § 32-131.03; D.C. Mun. Regs. tit 7, § 3206.  The employer may create a written form for the request of paid leave.  D.C. Mun. Regs. tit 7, § 3207.1.  This form may only require from the employee the following information:  name, employee identification number (if any), minimal information needed to show the request falls within the Act’s coverage, such as type of leave, or basic reason for leave, and time of the paid leave to be taken.  D.C. Mun. Regs. tit 7, § 3207.1.  Employees must notify employers about  paid leave that is foreseeable at least 10 days in advance or as early as possible.  D.C. Code § 32131.03.  A request for paid leave that is unforeseeable must be made orally prior to the start of the work shift for which the paid leave is requested.  D.C. Code § 32-131.03.  In an emergency,
an oral request for paid leave must be made by the earlier of within 24 hours of the onset of the emergency or prior to the start of the next work shift.  D.C. Code § 32-131.03.  

Employers have the right to request reasonable certification for a request for paid leave  for three or more consecutive days.  D.C. Code § 32-131.04; D.C. Mun. Regs. tit 7, §§  3299;  3203.  Examples of reasonable certification include a signed document from a health care
provider that affirms the illness of the employee, a police report indicating that the employee was  a victim of stalking, domestic violence, or sexual abuse, a court order and a signed statement  from a victim and witness advocate, or domestic violence counselor, affirming that the employee is involved in legal action related to stalking, domestic violence, or sexual abuse.  D.C. Code § 32-131.04.  Reasonable certification, if requested, must be provided to the employer upon the employee’s return to work or within one business day thereafter.  D.C. Code § 32-131.04; D.C. Mun. Regs. tit 7, § 3208.   

Nothing in the Act prohibits an employer “from establishing and enforcing a lawful  policy relating to improper use of paid leave or from seeking more frequent certifications from an employee if there is evidence of a pattern of abuse of paid leave.”  D.C. Code § 32-131.08.  
The regulations provide examples of actions that can be evidence of a pattern of abuse, including consistent taking of paid leave without the required notice, consistent taking of leave on days for which vacation or annual leave have been denied, a pattern of taking paid leave on days where the employee is scheduled to work a shift or perform duties perceived as undesirable, including  high customer volume days or a pattern of taking paid leave on Mondays, Fridays, or the day immediately preceding or following holidays. D.C. Mun. Regs. tit 7, § 3215.

An employee begins to accrue paid leave at the beginning of employment, but cannot  access such leave until after 90 days of service with the employer.  D.C. Code § 32-131.02.  Paid leave accrued can be carried over annually.  D.C. Mun. Regs. tit 7, § 3210.  Where an employee  is transferred to a separate division of an employer’s business within the District, so long as the employee remains employed by the same employer, that employee may receive the paid leave accrued at the prior division.  D.C. Code § 32-131.02.  Similarly, if an employee remains employed by the same employer, but is transferred out of D.C. and then transferred back to the division, entity or location where paid leave was accrued, the employee is entitled to the paid leave accrued at the D.C. division.  D.C. Code § 32-131.02.  An employer need not reimburse an employee for accrued paid leave who was terminated or who resigned.  D.C. Mun. Regs. tit 7, §
3211.  Special circumstances exist with respect to an employee who is rehired within 1 year.  D.C. Code § 32-131.02.  Employees who are exempt from overtime payment under the Fair Labor Standards Act, Section 213(a)(1) do not accrue leave for hours worked beyond a 40-hour work week.  D.C. Code § 32-131.02.    

c. Obligations on Employers under the Act  
Employers must comply with additional requirements under the Act similar to what is required by the DCFMLA.  An employer must post and maintain in a conspicuous place a notice with information pertaining to the statute and filing of a complaint for a violation of the statute.  
D.C. Code § 32-131.09; D.C. Mun. Regs. tit 7, § 3204.  The notice must be posted in English and in all languages spoken by employees with limited or no-English proficiency.  Violating the posting requirement results in a civil penalty up to $100 per day for each day the employer fails  to post.  An employer will not be required to pay more than $500 for such a violation unless the violation is willful, in which case the penalty may be greater.  § 32-131.09.

Additionally, an employer must retain records documenting hours worked by employees  and paid leave taken by employees for a period of 3 years.  D.C. Code § 32-131.10b.  Employers  must allow the Mayor and the Office of the District of Columbia Auditor access to the records to  monitor compliance with the requirements of the statute, when appropriate notice is given and at a mutually agreeable time.  D.C. Code § 32-131.10b.  Most notably, if an employer does not maintain or retain adequate records documenting this information or does not allow for reasonable access to records and an issue arises as to the employee’s entitlement to paid leave, there is a rebuttable presumption that the employer has violated the law.  D.C. Code § 32131.10b.

An employer does not need to modify a paid leave policy already in place if the policy provides an employee the opportunity to accrue and use leave under “terms and conditions that are at least equivalent to the paid leave prescribed in this chapter.”  D.C. Code § 32-131.05.  A policy will be presumed equivalent if the employee is allowed to access and accrue paid leave at least at the same rate as or greater than the hours provided in the statute or use paid leave for the same purposes as set forth in the statute, including scheduling paid leave.  D.C. Code § 32131.05.   

d. Restrictions on Employer Conduct and Penalties for Non-Compliance  
The Act prohibits interfering, restraining or denying the exercise of, or the attempt to exercise, any rights under the Act.  D.C. Code § 32-131.08.  In particular, an employer cannot discriminate against or discharge an employee because that employee opposes any practice by an employer made unlawful by the Act or because the employee took certain protected actions.  D.C.  Code § 32-131.08.  Protected actions include complaining to the employer, filing a complaint with DOES or a civil complaint, informing any person about an employer's alleged violation, cooperating with DOES or another person's investigation or prosecution of any alleged violation, opposing any policy, practice, or act that is a violation, informing another person of rights, giving any information or testimony in connection with an inquiry or proceeding and using one’s paid leave.  D.C. Code § 32-131.08.  Employers should be mindful that an adverse action taken
against an employee within 90 days of any of the abovementioned actions raises a rebuttable presumption that the employer has violated the Act.  D.C. Code § 32-131.08.   

An employer is restrained in its use of paid leave toward an absence control policy: an employer cannot count paid leave taken under the Act as an absence that leads to or results in discipline, discharge, demotion, suspension or other adverse action.  D.C. Code § 32-131.08.  Employers’ ability to negotiate paid leave in bargaining is also restricted: the Act prohibits the waiver of paid leave for less than 3 days per calendar year in a collective bargaining agreement.  D.C. Code. § 32-131.06.

An employee or similarly situated employees can bring either a civil action or administrative action seeking back pay for lost wages caused by an employer's violation of the Act, reinstatement or other injunctive relief, compensatory damages, punitive damages, and
reasonable attorney's fees and costs of enforcement.  D.C. Code § 32-131.12.  Interest will also be awarded on all amounts due and unpaid.  D.C. Code § 32-131.12.  Employers can be further penalized for failure to allow an employee to use paid leave.  D.C. Code § 32-131.12.  An employer who refuses to allow use of paid leave must pay $500 in additional damages to the employee for each accrued day denied, “regardless of whether the employee takes unpaid leave or reports to work on that day.”  D.C. Code § 32-131.12.  Lastly, a willful violation of the statute carries a civil penalty for each employee of $1,000 for the 1st offense, $1,500 for the 2nd offense and $2,000 for each subsequent offense.  D.C. Code § 32-131.12; D.C. Mun. Regs. tit 7, § 3217.   

The statute of limitations for claims brought under the Act is within 3-years of the event or final instance of a series of events on which the complaint is based.  D.C. Code § 32-131.10a.  This 3-year period is tolled for the period of time in which an employer does not post the
required notice.  D.C. Code § 32-131.10a.  The statute of limitations is also tolled for a civil complaint when an administrative complaint has been filed.  D.C. Code § 32-131.10a.  The Act grants the Mayor authority to take matters into her own hands when compliance
with the Act or its implementing regulations is not forthcoming:  “the Mayor shall take any appropriate enforcement action to secure compliance, including initiating a civil action and, except where prohibited by another law, revoking or suspending any registration certificates, permits or licenses held or requested by the employer or person until the violation is remedied.”  D.C. Code § 32-131.12.  Further, DOES may order the employer to compensate D.C. up to $500 per day or a portion thereof per employee for the costs of investigating and remedying the violation.  D.C. Code § 32-131.12.  

e. Results of Audit by the Office of the District of Columbia Auditor
The Act requires the District of Columbia Auditor (“ODCA”) to prepare an annual report on the economic impact of the Act on the private sector, including the compliance level of businesses and whether businesses are utilizing staffing patterns to circumvent the intention of
the Act.  D.C. Code § 32-131.15.  ODCA completed its most recent report in May 2015 and  relied on data collected by an online survey.  See ODCA, Effects of the District’s Sick and Safe Leave Act (2015).  ODCA received 189 responses of businesses subject to the Act. 3   Id.  
The report found the Act is having “minimal impact on employers.”  Id.  Fewer than 10% of survey respondents reported negative impact on profitability and more than 50% reported no impact or actually improved profitability.  Id.  Fewer than 2 out of 10 employers reported making significant changes since the law went into effect.  Id.  That rate, however, was higher for firms in the construction, retail, and accommodation and food services industries.  Id.  Further, “when asked whether employees performed better or worse after being given sick leave, about 1 in 15 businesses said ‘better’ while only about 1 in 100 said ‘worse.’”  Id.  Also, the ODCA found “a very poor rate of compliance” with posting requirements and suggested DOES develop a comprehensive program to ensure all businesses are aware of this requirement.  Id.