Revisions to the District of Columbia's Accrued Sick and Safe Leave Act adopted last February, referred to as the Earned Sick and Safe Leave Act of 2013 (the “Amendment”), are now in force. The District of Columbia Department of Employment Services (“DOES”) published a revised "Official Notice" that must be posted in affected workplaces across the District of Columbia. The Sick and Safe Leave Act’s central requirement to provide paid sick and safe leave to eligible employees employed in D.C. has not changed (for a review of the Sick and Safe Leave Act, see our Employment Alert here). However, the Amendment has changed certain aspects of the Sick and Safe Leave Act.
In particular, the Amendment created these six (6) new provisions and/or obligations:
- Accrual and Availability of Leave. A covered employee accrues paid leave when employment begins, and may access paid leave after 90 days of service. Previously, there was a delay before accrual was required.
- Tipped Restaurant and Bar Employees. Employers must provide tipped restaurant wait staff and bartenders with at least one hour of covered paid leave for every 43 hours worked, up to a maximum of five days per calendar year. Employers need only provide D.C. minimum wage to these employees while on leave, with no consideration of the amount of tips the employee might have received during that time of leave. The Amendment removed the Act’s prior exclusion of tipped staff from coverage.
- Retention of Accrued Leave. The Amendment repeals the Act’s provision that limited an employee’s right to carry over his or her accrued sick leave from year to year. The Amendment also removes an employee’s right to receive a payout of the employee’s accrued sick leave upon termination.
- New Retaliation Protections. There is now a rebuttable presumption of retaliation if the employer takes adverse action against an employee in response to actions taken pursuant to this law.
- Record-Keeping Requirements. D.C. employers must retain records forthree years documenting the number of hours worked by an employee and any paid leave used by the employee. The Office of the District of Columbia Auditor must be able to access these records. Failure to maintain records creates a rebuttable presumption that the employer violated the Act.
- Enforcement and Penalty Provisions. Employees can bring a civil action or an administrative action through the DOES for backpay, reinstatement, or injunctive, compensatory, or punitive relief. The employer is liable for $500 for every day an employee was denied leave and required to work. The employer is also liable for attorney’s fees in case a violation is found. If the violation is willful there is a civil penalty of $1,000 for the first offense, $1,500 for the second offense, and $2,000 for the third and each subsequent offense. A violation of the notice-posting requirement is considered a "willful violation."