Attention Employers with DC Employees: Final Regulations for Accrued Sick and Safe Leave Act Issued

Date: September 27, 2010

In November 2008, the District of Columbia enacted the Accrued Sick and Safe Leave Act of 2008 ("ASSLA" or the "Act"). In doing so, the District became the second of only two jurisdictions in the country to mandate paid sick and "safety" leave. Unfortunately, the new law resulted in more questions than answers. The District recently issued final regulations in an attempt to clarify the ASSLA.

What is required under ASSLA?
Under ASSLA, employers must provide paid sick leave to eligible employees for absences related to physical or mental illness, preventative medical care, caring for a family member, domestic violence, sexual abuse, or stalking. ASSLA also prohibits retaliation against an employee who opposes any practice made unlawful by the Act, files or attempts to file a complaint for violation of the Act, facilitates initiation of a proceeding under the Act, provides information or testimony in connection with an inquiry related to the Act, or uses leave in accordance with ASSLA.

Who is covered?
The final regulations define "employer" to include for-profit or not-for-profit firms, partnerships, proprietorships, limited liability companies, associations, corporations, the District of Columbia or the any receiver or trustee of such entity or individual, including the legal representative of a deceived [deceased?] individual, who employs an employee.. Before the final regulations were enacted, there was some confusion as to who was an employee under ASSLA. The term "employee" is defined as "an individual who has been employed by the same employer for at least one (1) year without a break in service except for regular holiday, sick, or personal leave granted by the employer and who has worked at least one thousand (1,000) hours of service with such employer during the previous 12-month period." The final regulations provided clarification regarding employees employed in more than one location. To be covered under ASSLA, an "employee" who is employed by an employer in more than one location must spend more than fifty (50) percent of his or her working time for the employer in the District. However, independent contractors, students, certain health care workers, and restaurant wait staff and bartenders who work for wages and tips are not considered "employees" under ASSLA.

How are sick and safe leave determined?
Under ASSLA, the amount of sick leave to be provided by an employer depends on the number of employees. An employer with one hundred or more employees in D.C. shall provide each employee not less than one hour of paid leave for each thirty-seven hours worked, not to exceed seven days of paid leave per calendar year. An employer with 25 to 99 employees in D.C. must provide each employee with not less than one hour paid leave for every 43 hours worked, not to exceed five days of paid leave per calendar year. Lastly, an employer with 24 or fewer employees in D.C. shall provide not less than one hour of paid leave for every 87 hours worked, not to exceed three days of paid leave per calendar year. An employee begins to accrue paid leave on the date the employee meets the definition of an "employee" under ASSLA.

Can employees carry over unused leave accrued under ASSLA?
Under ASSLA, an employee may carry over unused paid leave accrued in one calendar year. However, the employee is not permitted to use more paid leave in one year than the maximum amount of sick leave the employee accrues in a year under ASSLA, unless the employer has a policy that provides otherwise. In addition, an employer is not required to reimburse an employee for unused accumulated sick leave upon the employee's discharge or resignation.

What is required of employers and employees under ASSLA?
ASSLA imposes notice requirements on employers and employees. For example, an employer is required to post notices regarding ASSLA in conspicuous places. Moreover, employers must maintain records of the accrual, granting and denial of ASSLA leave for a period of three years.

Similarly, an employee is expected to give at least ten days written notice of the employee's intent to use sick or safe leave. ASSLA includes alternative methods for employees to provide their employers notice, such as an oral request, when an employee may not be able to provide ten days' notice of the employee's intent to use sick or safe leave. An employer may require "reasonable certification" to support an employee's request for paid leave for three or more consecutive days. Such certification may include a signed document from a health care provider affirming the illness, or a police report or court order indicating that the employee or the employee's family member was a victim of stalking, domestic violence, or sexual abuse. If the employer requires the certification, it shall be provided upon the employee's return to work or within one business day thereafter.

What if an employer already has a leave policy in place?
Although ASSLA applies to all employers, an employer that already has a paid leave policy or universal leave policy that allows the accrual and usage of leave equivalent to the paid leave described in ASSLA, is not required to modify its policy. In addition, ASSLA does not change or alter the obligation of an employer to comply with any collective bargaining agreement or employment benefit or plan that provides paid leave rights greater than those under ASSLA.

Are there any penalties for violation of ASSLA?
Employers who willfully violate the requirements of ASSLA will be assessed a civil penalty depending upon the violation; thus, D.C. employers should check their policies to make sure they are in compliance with ASSLA.