What Employers Need to Know About Recent Amendments to the DC Sick and Safe Leave Act
The amendments to the District of Columbia Sick and Safe Leave Act, which were implemented in 2014, became effective in 2015, now that the District of Columbia has adopted its budget for 2015. As discussed below, the amendments expand the scope of the Act and also significantly strengthen the enforcement mechanisms associated with violations of the statute.
First, the amendments to the Act shorten the time by which employees can access accrued sick and safe leave from one year to 90 days after they began working. Second, the new law extends protection to temporary employees who now can claim credit for time worked with their employer on a temporary or trial basis. Third, the Act provides that an employee who leaves the company after completing at least 90 days of service and is rehired within 12 months will continue to accrue leave based on his or her previous tenure and will have access to sick and safe leave accrued prior to leaving the company. Fourth, the Act provides that with respect to an employee who has worked in a restaurant or bar who regularly receives tips, commissions or other annuities to supplement a base wage below the minimum wage, the employer must provide the employee not less than one hour of paid leave for every 43 hours worked, not to exceed five days per calendar year.
The official notice for the amendments to the Act states that the accrual provisions of the amendments are retroactive to February 22, 2014. As a result, it appears that an employee who worked over 90 days as of February 22, 2014 will be able to use any accrued leave prior to that date. In addition, employees who are newly covered under the Act, such as tipped employees of a restaurant or bar, also will be able to take leave accrued since February 22, 2014.
The eligibility requirements of the Act, which were not changed by the amendments, are:
- An employer with 100 or more employees must provide one hour of paid leave for every 37 hours an employee works, not to exceed seven days per calendar year;
- An employer with 25 to 99 employees must provide one hour of paid leave for every 43 hours an employee works, not to exceed five days per calendar year; and
- An employer with 24 or fewer employees must provide one hour of paid leave for every 87 hours an employee works, not to exceed three days per calendar year.
An employee may use leave under the Act:
- For the physical or mental illness, injury or medical condition of the employee;
- To obtain a medical diagnosis or preventative care for the employee or a family member;
- To care for a family member who has any of the conditions or needs for diagnosis or care above;
- To obtain social or legal services related to stalking, domestic violence or sexual abuse of the employee or employee's family member.
Stronger Enforcement Provisions
The amendments, as noted, substantially strengthen the enforcement provisions of the Act. For example, the Act now contains a private right of action, which allows for recovery of back pay for lost wages, reinstatement or other injunctive relief, as well as compensatory or punitive damages, including at least $500 for each accrued day that an employee was denied access to paid leave regardless of whether he or she took unpaid leave or reported to work on that day, along with reasonable attorney's fees and costs. Second, the Act includes civil penalties not to exceed $100 for each day that the employer fails to post the required notice (up to a maximum of $500 unless the violation was willful). Third, the statute prohibits an employer from taking adverse employment action (such as termination, demotion, etc.) against an employee within 90 days from taking leave protected by the Act, and creates a rebuttable presumption that any employee subjected to an adverse employment action within that 90 day timeframe has been a victim of retaliation. Fourth, the amendments require employers to retain records documenting hours worked by employees and paid leave taken by employees for a period of three years.
Actions For Employers
In light of the amendments to the Act, employers should do the following:
- Revise sick and safe leave policies or create them if they do not exist, and include them in handbooks and deliver them to all employees with proof of delivery;
- Train managers on the requirements of the new amendments so as to avoid claims of violation of the statute, including claims of retaliation; and
- Post the notice required by the act.
Marc Engel is an employment attorney and litigator at Lerch, Early & Brewer who advises employers of all types on employment issues, and provides strategies for preventing, defending, and resolving wage and hour claims. For more information, contact Marc at (301) 657-0184 or firstname.lastname@example.org.