On November 13, 2008, the District of Columbia’s “Accrued Sick and Safe Leave Act of 2008” became effective. The Act mandates that certain DC employers provide paid sick to eligible employees. The D.C. Department of Employment Services intends to publish regulations under the Act before the end of 2008. In the meantime, DC employers must still comply with the Act.

What Employers are Covered?

Any legal entity that employs an employee is considered a covered “employer” under the Act. The amount of leave authorized by the Act varies with the size of the employer.

Employers with 100 or more employees must provide covered employees at least one (1) hour of paid leave for every thirty seven (37) worked, up to a maximum of seven (7) days per calendar year.1

Employers with at least 25, but less than 100, employees must provide one (1) hour of paid leave for every forty three (43) hours worked, up to a maximum of five (5) days per calendar year.

Employers with fewer than 25 employees must provide not less than one (1) hour of paid leave for every eighty seven (87) hours worked, up to three (3) days per calendar year.

For coverage purposes, the number of employees is equal to the average monthly number of full time equivalent employees for the prior calendar year to be determined by taking the total number of monthly full time equivalent employees for each month and dividing by 12.

What Employees are not Covered?

Most employees are eligible for paid leave. However, the Act provides that the following workers are not considered “employees” for purposes of the Act:

• Independent contractors

• Students

• Health care workers who elect to participate in a premium pay program (a plan offered by which an employee elects to receive extra pay in lieu of benefits)

• Restaurant wait staff and bartenders who work for a combination of wages and tips

“Students” is defined as an employee enrolled on a full time basis by an accredited institution of higher education and who (i) is employed by that institution; (ii) is employed less than 25 hours per week; and (iii) does not replace an employee subject to the Act. The statute’s definition of “student” includes a person employed by the “Year Round Program for Youth” established by the DC Department of Employment Services.

What Can the Leave be Used For?

Paid leave under the Act may be used for any of the following purposes:

• Absences caused by a physical or mental illness, injury or medical condition of the employee;

• Absences resulting from getting professional medical diagnosis or care, or preventive care for the employee – provided that the employee make reasonable efforts to schedule paid leave in a manner that does not unduly disrupt the employer’s operations;

• Absences to care for a child, parent, spouse, domestic partner or family member who has any of the conditions or needs for diagnosis or care described above;

• Absences resulting from the employee or family member being a victim of stalking, domestic violence or sexual violence, provided the leave is directly related to social or legal services pertaining to such conduct.

When Can the Leave be Used?2

Paid leave begins to accrue when employment commences. However, employers are not required to allow employees to use the leave until the employee had completed 90 days of service with the employer. If an employee is terminated after completing the 90 day service period, and is then rehired within twelve (12) months, the employee may use any accrued leave immediately.

Significantly, if an employee does not suffer a loss of income when absent from work (for up to the maximum number of leave days required by the Act), the employer need not provide paid leave to such employees.

What are the Employee’s Obligations When Leave is Sought?

Employees desiring to use the paid leave provided for by the Act must submit a written request that includes the reason for the absence and the expected duration of the leave. When the need for the leave is foreseeable, the request must be provided at least 10 days in advance, or as early as possible. When the need for leave is unforeseeable, the employee must provide an oral request for leave before the start of the applicable work shift. In the case of an emergency, the employer must be notified by the earlier of 24 hours of the onset of the emergency or prior to the start of the next work shift.

When paid leave is sought for three or more consecutive days, an employer may require reasonable certification from the employee. This can include a signed document from a health care provider affirming the illness, a police report indicating that the employee was a victim of stalking, domestic violence or sexual abuse, a court order, or a signed statement affirming that the employee is involved in a legal action related to stalking, domestic violence or sexual abuse. The certification must be provided upon the employee’s return to work. Any information provided to the employer must be kept in confidence.

Employers may also establish and enforce policies relating to improper use of paid leave or requiring more frequent certifications, if there is evidence of a pattern of abuse of sick leave.

What Happens if the Accrued Leave is not Used?

If an employee does not use all accrued in a calendar year, it is carried forward to the following year. However, unless an employer chooses otherwise, the Act does not permit an employee to use in one year more than the maximum number of hours mandated by the Act.

What Happens to Accrued and Unused Leave Upon Termination?

The Act is clear that unused leave is not payable upon termination or resignation.

What if an Employer Already has Paid Leave Policies Equivalent to, or More favorable Than, the Leave Requirements of the Act?

Any employer that provides paid leave options (e.g., a paid time off policy) that offer employees the option to accrue and use leave under terms at least equivalent to the paid leave required by the Act is not required to modify its leave policies. A policy will be deemed equivalent if it provides employees access to and accrual of paid leave at the same rate or greater than the hours of paid leave required by the Act or use of the paid leave for the same purposes authorized by the Act.

The Act also does not diminish an employer’s obligation to comply with contracts or benefit plans providing for greater rights.

Are There Other Compliance Concerns?

Employers are required to post a notice in the workplace summarizing the Act. The DC Government is required to provide the notice to employers upon request. In addition, the notice is available from the DC Department of Employment Services’ website. Employers who fail to comply with the notice requirement are subject to a daily fine of $100, up to a maximum penalty of $500.

Employers also may not interfere with attempts to exercise rights provided for by the Act and are not permitted to discharge or discriminate against an employee seeking to enforce his or her rights under the Act. Willful violations of the Act can lead to civil penalties.

Our Labor and Employment Group works closely with employers in preparing employment policies, like that required by the Act. If you have any questions, feel free to contact us.

1 Employees exempt under the Fair Labor Standards Act as executives, administrative or professionals only accrue leave for the first forty (40) hours worked per week.

2 There is some confusion in the Act concerning when an employee becomes eligible to accrue and use leave. The Act is clear that an “employee” may use leave after 90 days of service. However, the Act also defines an “employee” as an individual “who has been employed by the same employer for 1 year . . . and has worked at least 1000 hours during the 12 month period . . . .” preceding the leave. We expect this discrepancy to be addressed in the regulations that are expected to be issued shortly.