Nation's Capital Expands Sick and Safe Leave Law

Author: Melissa Burdorf, XpertHR Legal Editor

February 14, 2014

On January 2, 2014, the Mayor of Washington, DC signed into law the Earned Sick and Safe Leave Amendment Act of 2013 (ESSLA), which expands several aspects of the District of Columbia's Accrued Sick and Safe Leave Act (ASSLA). ASSLA provides certain employees working in the District of Columbia with the right to earn paid leave for physical or mental illness, preventative care, family care, parental leave and absences connected to a domestic or sexual violence or stalking incident.

In 2013, the Office of the District of Columbia Auditor (ODCA) conducted its first audit of ASSLA. The ODCA audit revealed that ASSLA had many positive benefits (e.g., it did not discourage owners from establishing businesses in the District of Columbia, most employers complied with posting requirements) but did have room for improvement. ESSLA addresses the ODCA's suggested improvements and more by:

  • Increasing the pool of eligible employees by:
    • Broadening the definition of employee to include any individual employed by an employer, with limited exceptions;
    • Eliminating the requirement that eligible employees work for their employer continuously for one year and work 1,000 hours in the preceding 12 months; and
    • Including tipped restaurant wait staff and bartenders as workers eligible for paid sick leave.
  • Adding a new provision requiring that restaurant and bar employees, for whom the tip credit is claimed, be provided with at least one hour of paid leave for every 43 hours worked, up to a maximum of five days in a year. These employees must only be paid the regular District of Columbia minimum wage while on leave, without taking into consideration the amount of tips that they may have received if working;
  • Expanding the definition of employer to include employers who use temporary placement agencies;
  • Requiring that employees start accruing paid sick leave upon hire (although employers can wait until an employee works for 90 days before permitting the accrued time to be used);
  • Allowing transferred employees to retain any accrued leave despite transfer;
  • Allowing separated employees to get their leave reinstated if rehired within a year of separation;
  • Allowing employees to carry over unused paid leave;
  • Obligating employers to keep records documenting hours worked by employees and paid sick leave taken/accrued for three years and providing access to the records to the ODCA and the Mayor, upon request;
  • Broadening the retaliation protections to include, for example, protections for employees who complain to their employer or who file a complaint;
  • Providing that an adverse action (e.g., demotion, termination) taken within 90 days of the employee engaging in a protected activity (e.g., filing a complaint) raises a presumption (which the employer can refute) that the employer violated ASSLA;
  • Adding in new enforcement and stiffer penalty provisions; and
  • Deleting the provision that permits employees and employers to agree that an employee could work additional hours during the same or next pay period in lieu of using paid leave.

Of the jurisdictions that provide paid sick leave, the District of Columbia is the only jurisdiction that excluded tipped employees and bartenders from earning paid sick leave and the only one that required all employees to work a full year before earning paid sick leave. The other jurisdictions include:

  • Portland, OR;
  • San Francisco, CA;
  • Jersey City, NJ;
  • SeaTac, WA;
  • Seattle, WA;
  • NYC (effective in April 2014);
  • Connecticut; and
  • Newark, NJ (coming soon).

Matthew Brown, an attorney for Faegre Baker Daniels, thinks ESSLA's changes will incentivize restaurant staff and new employees to stay home when sick - instead of preparing, cooking and serving food while ill or coming to work sick (i.e., presenteeism) and infecting an office. As statistics have shown, employees coming into work sick can be a $150 billion dollar per year headache for employers.

Brown recommends that an employer who employs persons in the District of Columbia take the following steps:

  • Review leave policies to ensure compliance with ESSLA (e.g., provide a sufficient amount of paid leave, permit leave to accrue at the start of employment and allow employees to use leave after 90 days of employment);
  • Make sure that all policies address whether (and to what extent) covered leave can be carried over from one year to the next and, if desired, clearly state that covered leave is not paid out upon termination (ESSLA defers to an employer's stated policy on paid sick leave pay-out);
  • Ensure all policies and procedures follow ESSLA's new requirements for maintaining or restoring accrued leave for transferred or separated-but-rehired employees (if rehired within a year);
  • If you are an employer of restaurant or bar staff, make sure that your leave policy clearly allows tipped employees to accrue and use one hour of paid sick leave for every 43 hours worked (up to five days);
  • Conform your anti-retaliation policy to ESSLA's new requirements and train managers, supervisors and HR on these requirements;
  • Document the basis for any action taken against an employee who takes or requests ASSLA/ESSLA leave;
  • Post the required notice in a place where you regularly post other employee notices (e.g., break rooms); and
  • Retain records of the hours your employees work, as well as the accrual, grant or denial of paid sick leave, for at least three years, and store records in a format that makes them easy to retrieve.

ESSLA's projected effective date is March 6, 2014.