The District of Columbia Accrued Sick and Safe Leave Act of 2008 (the Sick Leave Act) will make the District of Columbia one of the first jurisdictions in the United States to mandate paid leave for an employee’s sickness, to care for a family member (as broadly defined) who is sick, and for other purposes relating to medical conditions or domestic violence (sick leave). The Sick Leave Act will have a significant impact on employers, whether or not they currently provide paid sick leave.

Effective Date

The Sick Leave Act (D.C. Code Ann. § 32-131.01 et seq.) becomes effective on November 13, 2008, except when a collective bargaining agreement was in effect on May 13, 2008, in which case the date is delayed until the earlier of the termination of the agreement or November 13, 2009. Regulations interpreting the Sick Leave Act are being drafted by the District of Columbia Department of Employment Services. The agency has not announced when they will be finalized.

Required Leave Amount

Employers with 100 or more employees must provide at least one hour of paid sick leave for every 37 hours worked, up to a cap of seven days per calendar year. Employers with 25 to 99 employees must provide at least one hour of paid sick leave for every 43 hours worked, up to a cap of five days per calendar year. Employers with less than 25 employees must provide at least one hour of paid sick leave for every 87 hours worked, up to a cap of three days per calendar year. For employees who are exempt under the Fair Labor Standards Act, sick leave does not accrue for hours worked in a week beyond 40. Employees are allowed to carry over their accrued but unused sick leave from year to year, but at the same time, an employer can limit the amount of sick leave used in any one calendar year to the annual accrual caps stated above. Employers are not required to cash out accrued but unused sick leave upon termination or resignation of employment.

Permissible Uses of Sick Leave

Employees may use paid sick leave for absences relating to their own physical or mental illness or injury or preventative medical care. Paid sick leave can also be used to care for a child (including foster child and grandchild), parent, spouse, domestic partner or other family member who has such illness or injury, or needs preventative medical care. Also, if the employee or the employee’s family member is a victim of stalking, domestic violence, or sexual abuse, paid sick leave may be used to obtain psychological or other counseling, to take legal action associated with these offenses, or take certain other actions concerning the matter. Family member is defined even more broadly than the definition in the D.C. Family and Medical Leave Act, and includes, for example, spouses of brothers, sisters and children.

Requests to use sick leave under the Sick Leave Act must be made in writing and in advance if the leave is foreseeable. Unforeseeable leave may be requested orally and, in emergency situations, may be requested after the fact within certain time limits. Employers may request reasonable certification to verify the legitimacy of the paid leave taken. Employees must make a reasonable effort to schedule paid leave in a manner that does not unduly disrupt the employer’s operations.

Effect on Existing Paid Time Off Practice and Policies

Employers who already provide paid time off to employees do not have to modify their policies so long as their policies offer paid leave that is at least equivalent to the Sick Leave Act’s requirements. To be equivalent, the policies must allow employees the option to use paid leave, including unscheduled leave, at the employee’s discretion, for the purposes provided in the Sick Leave Act, and offer at least the number of days mandated in the Sick Leave Act. Paid time off policies do not have to specifically be identified as sick leave policies so long as they meet the Sick Leave Act’s requirements.

Exceptions

Health care workers who participate in a premium pay program in which they may elect to receive extra pay in lieu of benefits, and restaurant wait staff and bartenders who work for a combination of wages and tips are exempt from receiving paid sick leave under the Sick Leave Act. Also exempt are independent contractors, full-time students employed by their institution of higher education for less than 25 hours per week and whose position does not replace an employee, and students employed through the Year Round Program for Youth. Additionally, employers may be exempted if they can prove that compliance would cause them hardship. Hardship will be defined in the forthcoming regulations.

Open Questions

There is some confusion concerning when an employee becomes eligible to begin accruing sick leave because of inconsistent provisions in the law. The Sick Leave Act incorporates the definition of employee used in the D.C. Family and Medical Leave Act (the D.C. FMLA), which defines an employee as an individual who has been continuously employed by the same employer for one year and has worked at least 1000 hours during the 12 months preceding the request for leave. However, a different provision of the Sick Leave Act states that individuals accrue paid sick leave upon beginning employment, and employees may take accrued sick leave after 90 days of service.

There is also some question whether only employees in the District of Columbia are counted to determine the size of the workforce for purposes of the Sick Leave Act – and therefore the amount of paid leave that must be provided. The D.C. FMLA states that only employees in the District of Columbia are counted in determining employer coverage, but the Sick Leave Act does not expressly say whether only employees in the District of Columbia are counted.

These questions may be resolved in the expected regulations.

Notice and Enforcement

All D.C. employers will be required to conspicuously post a notice summarizing the Sick Leave Act in several languages once such a notice is prepared by the Mayor. Employers may not retaliate against employees because they take paid sick leave or otherwise interfere with their rights under the Sick Leave Act.

Employers who willfully violate the Sick Leave Act are subject to a civil penalties. Recommended Actions There are a number of actions employers should consider taking in light of the new law: 

  • Review existing leave practices and policies for all categories of employees, full and parttime, and revise them as appropriate. Employers with either paid leave policies should determine whether they provide time off that is at least equivalent to the number of paid sick leave hours stated in, and can be used in the circumstances required by, the Sick Leave Act. An employer without such policies should implement an appropriate policy, or otherwise assure that actual practices will conform to the Sick Leave Act. 
  • Review any pertinent collective bargaining agreements and assess how best to come into compliance with the Act’s requirements by the effective date specified for such agreements. 
  • Monitor the status of the forthcoming regulations implementing the Sick Leave Act, and once issued, again review leave practices and policies to ensure compliance. 
  • Post the required poster when it is issued by the Mayor’s office 
  • Consult with counsel as needed to consider various policy options for compliance, and monitor how the Sick Leave Act is interpreted and enforced