On May 27, 2020, District of Columbia Mayor Muriel Bowser signed a bill that amends D.C. emergency paid leave requirements. Although many changes are stylistic and do not affect the substance of the law, one change clarifies an issue concerning when the new obligation began, and others detail when employees can use leave and how employers can comply via existing paid leave policies.
Quick Recap of Relevant Legislation: On April 10, 2020, D.C. enacted B23-0733, a 90-day emergency law that expanded D.C.'s paid sick leave law to require employers with between 50 and 499 employees to provide emergency paid leave for the same reasons employees can take emergency paid sick leave under the federal Families First Coronavirus Response Act (FFCRA). On May 21, D.C. enacted identical amendments via B23-0734, a 225-day temporary law scheduled to remain in effect until January 1, 2021.
On May 27, however, D.C. enacted another emergency 90-day measure, B23-0757, which makes amendments to the amendments, and is set to expire on August 25, 2020. Moreover, identical amending amendments are included in B23-0759, a 90-day emergency measure sent to the mayor, who must take action on the bill by June 9, the same day the D.C. Council could hold a second hearing concerning B23-0758, yet another 225-day temporary law that also makes these changes.
Start Date to Provide Emergency Paid Leave: Confusion arose after D.C. enacted the original legislation because its "effective" date – April 10 – differed from the "applicable" date – March 11. The most recent changes confirm that D.C. did not intend to impose a retroactive compliance obligation; instead, the new paid leave requirement began on April 10, 2020.
Sequencing of Leave: Originally, the law said employers could require employees to exhaust any available leave under federal law, D.C. law, or an employer's policies before using emergency paid leave. The May 27 amendments change the standard; now, employees can only use emergency paid leave concurrently with or after exhausting any other paid leave to which they are entitled under federal law, D.C. law, or an employer's policies for reasons employees can use emergency paid leave. If employees elect to use leave concurrently, employers can reduce the monetary benefit of emergency paid leave by the amount of the monetary benefit employees will receive for paid leave under federal law, D.C. law, or the employer’ policies. If employees elect to use emergency paid leave after exhausting other paid leave, employers can reduce the number of emergency paid leave hours employees can use by the number of paid leave hours they took under federal law, D.C. law, or the employer's policies.
Using Existing Policies: Before the emergency leave law provisions were added to D.C.'s Accrued Sick and Safe Leave Act (ASSLA), employers with a paid leave policy providing paid leave options (e.g., PTO) were not required to modify their policy if employees could accrue and use leave under terms and conditions that are at least equivalent to what the ASSLA requires, and the ASSLA detailed what it meant for a policy to be equivalent, i.e., employees accrue leave at a rate at least equal to what ASSLA requires and can use leave for ASSLA purposes. The May 27 amendments add to the equivalency list the ability to access and use emergency paid leave.
Next Steps: Covered employers should review, and revise, if necessary, policies and procedures they implemented to comply with the emergency paid leave amendments. They should also monitor D.C. legislation to see what additional changes might be included in the various emergency and temporary measures the District has been enacting during the COVID-19 public health emergency.
