Amendments to the District of Columbia Accrued Sick and Safe Leave Act of 2008 (the ASSLA) recently became fully effective. The most notable changes in the ASSLA as a result of the Sick and Safe Leave Amendment Act of 2013 (the Amendment) are as follows.
More employees are covered by the ASSLA
- Employees now begin accruing paid sick leave immediately, and after 90 days of service with an employer are eligible to use such leave. The Amendment eliminates the prior eligibility requirement of one year, during which the employee must have worked at least 1,000 hours. As a result, employees who remain for 90 days can be due paid leave even if they are not regular full-time or part-time employees.
- Restaurant workers who work for tips that supplement wages that are below the minimum wage are now covered and eligible for one hour of paid leave for every 43 hours worked, not to exceed five days per calendar year, regardless of the size of the employer. This paid leave must be compensated at minimum wage.
- The Amendment now defines "employer" to include an entity that “directly or indirectly...including through the services of a temporary services or staffing agency or similar entity, employs or exercises control over the wages, hours, or working conditions of an employee.” Therefore, entities engaging services through a staffing agency have new responsibilities to ensure that the agency workers assigned to them receive leave under the ASSLA. Another new law in the District of Columbia, the Wage Theft Prevention Amendment Act of 2014, explicitly makes both a temporary staffing firm and another employer to whom the temporary workers are assigned jointly and severally liable for any violations of the ASSLA (and certain other wage-related laws) by the staffing firm. (Watch for an upcoming Alert concerning the new law, which will become effective soon.)
Although the Amendment did not become fully applicable until September 30, 2014 pursuant to the District of Columbia's new budget, it has an original effective date of February 22, 2014. Therefore, for employees who were not previously covered by the ASSLA but are covered now, employers should retroactively accrue leave back to February 22, 2014 or, if later, the employee’s date of hire.
Note that the Amendment does not change the purposes for which sick leave can be taken or the original accrual rates themselves (except for tipped restaurant employees as stated above). As before, the ASSLA requires paid sick leave for an employee’s sickness, to care for a sick family member (as broadly defined), and for other purposes relating to medical conditions or domestic violence. The regular accrual rates differ based on the size of the employer, ranging from one hour of paid sick leave for every 87 hours worked to one hour of paid sick leave for every 37 hours worked, and are subject to annual caps on accrual. Employers may continue to use paid time off policies such as universal paid time off programs in lieu of a sick leave program as long as they provide paid time off that is at least equivalent to, and that can be used for the purposes stated in, the ASSLA (as amended).
Certain types of employees are exempted from the law, including but not limited to students employed by higher educational institutions under certain circumstances, and healthcare employees who chose to participate in premium pay programs as defined by the ASSLA. Additionally, a collective bargaining agreement may in some circumstances alter the paid leave requirements of the Amendment.
Employees who are transferred within the District, or who are transferred out of the District and then return to the District with any division, entity, or location of the employer, and employees who leave an employer and are rehired within a year are now entitled to have their accrued leave reinstated upon their return.
Poster and record-keeping requirements
The Washington, D.C. Department of Employment Services (DOES) has published an Official Notice that must be posted, conspicuously and in English and languages spoken by employees with limited or no English proficiency, by employers in the District. A link to the poster can be found here.
Employers must retain records documenting each employee’s hours worked and paid leave taken for three years. These records must be made accessible for compliance audits upon reasonable request. If an issue arises about an employee’s entitlement to leave, failure to retain adequate records, or to provide access thereto creates a presumption that the employer has violated the ASSLA.
Enhanced remedies and anti-retaliation provisions
The Amendment creates a new private right of action for employees to bring a civil complaint in court in addition to the pre-existing administrative remedy.
The Amendment also creates the following new penalties and remedies for violations:
- US$500 awarded to the employee for each accrued day of leave that was denied the employee (regardless of whether the employee takes unpaid leave or reports to work that day);
- an additional penalty awarded to the Washington, D.C. government of US$1,000 (first offenses), US$1,500 (second offenses), or US$2,000 (third and subsequent offenses) for willful violations.
Employers who violate the ASSLA may also be liable for back pay, reinstatement or other injunctive relief, compensatory or punitive damages including those described above, and reasonable attorney’s fees and costs of enforcement.
The Amendment creates a rebuttable presumption of retaliation when an employer takes any adverse action against an employee within 90 days of that employee engaging in certain protected activity, including but not limited to use of protected leave, complaining about a violation, cooperating with an investigation or prosecution, opposing any policy, practice, or act that is unlawful under the ASSLA, or informing any person of his or her rights under the ASSLA.
What should employers do?
- Post the revised Official Notice in workplaces in a location where it is easily seen by employees
- Watch for regulations that provide more specificity as to the law’s requirements
- Train individuals in the workforce who administer leave
- Revise sick leave policies to conform to the Amendment
- Establish record-keeping and accrual tracking processes to maintain accrual balances for all employees for three years
- Retroactively adjust employee leave balances to ensure that all employees have at least the amount of leave they would be entitled to if this law had gone into effect on February 22, 2014 (e.g., tipped restaurant workers that have been working for an employer since before February 22, 2014 should have retroactively accrued leave between February 22, 2014 and the present)
- Follow policies and procedures to be able to establish that any disciplinary or other adverse action against an employee within 90 days of that employee engaging in protected rights under the Amendment were based on legitimate business reasons unrelated to those rights