United States: New Paid Sick Leave Law In D.C.

New legislation will soon require D.C. employers to provide employees with paid sick and/or safe leave. The "Accrued Sick and Safe Leave Act of 2008," which was approved by the Washington D.C. Council earlier this year, takes effect on November 13, 2008.

Under the Act, D.C. employers will be required to provide employees with paid leave for absences relating to personal illness, family member illness, and certain absences relating to domestic violence or sexual abuse. Among the absences covered by the Act are:

• Absences relating to an employee's own physical or mental illness, injury, or medical condition;

• Absences to obtain a diagnosis or preventative care for an employee;

• Absences relating to a family member's physical or mental illness, injury, or medical condition;

• Absences to obtain a diagnosis or preventative care for a family member; and

• Absences taken for the purpose of obtaining social or legal services if an employee or family member is a victim of stalking, domestic violence, or sexual abuse.

The Act defines the term "family member" very broadly. Not only does the term refer to an employee's immediate family members (such as a spouse, parent, or child), it also includes an employee's domestic partner, foster children, grandchildren, spouses of children, siblings, spouses of siblings, and others.

The amount of paid leave an employer must provide depends on the employer's size.

• Employers with 100 or more employees must provide each employee at least 1 hour of paid leave for every 37 hours worked, not to exceed 7 days per year.

• Employers with at least 25 but not more than 99 employees must provide at least 1 hour of paid leave for every 43 hours worked, not to exceed 5 days per year.

• Employers with up to 24 employees must provide each employee with at least 1 hour of paid leave for every 87 hours worked, not to exceed 3 days per year.

The number of employees of an employer is determined by taking the average monthly number of full-time equivalent employees for the prior calendar year.

Accrual and Use of Sick and Safe Leave

Notwithstanding the eligibility requirements of any other paid time off or sick leave benefits provided by an employer, an employee starts to accrue paid leave from the beginning of his or her employment, and he or she may use that leave after 90 days of employment. An employee's unused paid leave carries over from year to year—in other words, employers cannot require employees to "use or lose" their paid leave by the end of each year. Nevertheless, employees may not use in a given year more than the maximum number of hours he or she is permitted to accrue in one year under the Act, unless the employer permits otherwise. Moreover, employers are not required to "cash out" an employee's paid leave when an employee resigns or is terminated.

For example, if an employee works for a company with 100 or more employees, he or she is permitted to accrue 7 days of paid leave each year. If, in a given year, the employee takes only 4 days of paid leave, the remaining 3 days of unused leave would "carry over" to the following year. However, in the following year, if the employee accrued an additional 7 days of paid leave, such that the employee had a total of 10 days of paid leave in his or her "leave bank," the employee could not take more than 7 days of paid leave that year, unless his or her employer permitted otherwise.

Notice Requirements

Like other medical leave laws, such as the federal Family and Medical Leave Act ("FMLA"), the D.C. Accrued Sick and Safe Leave Act imposes certain notice requirements upon employees. In particular, the Act requires employees to provide a written request for paid leave, stating the reason for the absence involved and the expected duration of the leave. If the leave is foreseeable, employees must provide at least 10 days notice. If the leave is unforeseeable, an employee must make his or her request prior to the start of his or her work shift. In such cases, the employee's request may be oral. Finally, in the case of an emergency, the employee must notify his or her employer prior to the start of the next work shift or within 24 hours, whichever is earlier.

Certification

In certain cases, an employer can require a certification of the need for sick or safe leave. Specifically, if an employee's paid leave lasts for 3 or more consecutive days, the employer may require a "reasonable certification." This certification may consist of a doctor's note, signed by a health care provider; a police report indicating the employee was a victim of domestic violence, sexual abuse, or stalking; a court order; or a signed statement from a victim and witness advocate.

Relation to Other Paid Sick Leave Laws

The Act is silent on how it will work with other leave laws, such as the FMLA and D.C. FMLA. However, the Act does permit the D.C. Mayor's office to issue rules to implement the provisions of the Act, so further clarification on this point may be forthcoming.

Obligations and Penalties

Employers are required to post a summary of the Act in a conspicuous location in the workplace. Failure to do so may result in a civil fine of up to $500. In addition, employers who willfully violate the Act may be assessed a civil fine of $500 for an initial offense, $750 for a second offense, and $1,000 for each additional offense. Posters are now available through the D.C. Mayor's Office, www.dc.gov, or the Department of Employment Services, www.does.dc.gov.

What You Can Do to Prepare

There are certain things D.C. employers should do to prepare for the Act's effective date.

• First, employers should review their leave policies and consult with legal counsel to determine if they comply with the Act. They should clearly state the eligibility requirements and all limitations on the taking of such leave. Pending future regulations, it is recommended that such policies also require that the leave runs concurrently with all other types of leave, including paid time off, sick leave, FMLA and DC FMLA, workers compensation, and disability leaves. If appropriate, new policies should be promulgated by November 13, 2008.

• Second, employers should also obtain the new poster from the D.C. Mayor's Office and be sure to post it in a conspicuous location in the workplace.

• Finally, employers should remain watchful for additional guidance from the D.C. Mayor's office.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.