June 30, 2008

This spring, Washington, D.C. became the second municipality in the country to require employers to provide paid sick leave for employees. Following the lead of San Francisco, the District of Columbia may be at the leading edge of a larger trend: this year more than a dozen other states and municipalities have considered similar laws, and the issue has arisen in the Presidential campaign.

In addition to requiring paid sick leave for absences related to physical or mental illness or medical appointments, the Accrued Sick and Safe Leave Act of 2008 ("ASSLA" or "the Act") also provides paid "safe leave" for absences related to incidents of domestic violence or sexual abuse. Employers are required to post a notice of the Act’s provisions (which is not yet available) in all languages necessary to accommodate their employees. 

Following approval by the D.C. Council and a 30-day period of Congressional review, the Act became effective on May 13, 2008. The Act will apply to employers six months after its effective date, on November 13, 2008. 

Paid Leave Requirements

Employees accrue paid leave credit under ASSLA based upon the number of hours they work and the size of their employer.

  • An employer with 100 or more employees must provide at least one hour of paid leave for every 37 hours an employee works, but no more than 7 days total per calendar year.

  • An employer with at least 25, but no more than 99, employees must provide at least one hour of paid leave for every 43 hours an employee works, but no more than 5 days total per calendar year.

  • An employer with 24 or fewer employees must provide at least one hour of paid leave for every 87 hours worked, but no more than 3 days per calendar year.

For the purposes of the Act, an employer’s total number of employees is the average monthly number of full-time equivalent employees for the prior calendar year. 

Employees begin to accrue paid leave on their first day of work. They may only begin to use leave time, however, following a waiting period of either 90 days or one year. (As discussed below, the Act is unclear about the length of this waiting period.) Paid leave that is accrued, but not used, in one year rolls over into the following year. In any given year, however, an employee may use only the maximum amount of leave that he or she could earn in that year. 

Employers who already offer paid leave programs must ensure that their employees can choose terms of leave at least as generous as those of the Act, including access to safe leave. Employees may partially waive requirements of the Act through a bona fide collective bargaining agreement, but not below a 3-day minimum of paid leave. 

Employer Exemptions and Employee Duties

There are significant exemptions in the Act. Restaurant wait staff and bartenders are not covered. Nor does the Act apply to most student work-study arrangements, health care workers who opt for premium pay programs in lieu of benefits, or to independent contractors. Under forthcoming regulations, individual employers will be able to apply for a hardship exemption from the Act.

Employees also have important duties under the Act. Except in cases of emergency or unforeseeable need, employees must give 10 days--or the earliest possible--written notice before taking paid leave. They may also be required to provide appropriate documentation to their employers to certify that leave was used properly. An employee who takes leave for medical appointments must make a "reasonable effort" to schedule leave so that it does not "unduly disrupt the operations of the employer."

Unclear Provisions

ASSLA includes some unclear provisions of which employers should be aware.

Most notably, the Act is unclear about how long an employee must wait before accessing accrued paid leave. One section of the Act grants employees access to leave after 90 days on the job. The Act’s definition of the term "employee," however, is identical to the one in the District of Columbia Family and Medical Leave Act ("DCFMLA"), which defines an employee as an individual who has served a minimum of one year with a single employer and worked at least 1,000 hours. If a worker does not even become an "employee" for the purposes of ASSLA until a year of service has passed, then the 90-day waiting period provision is superfluous--the waiting period is effectively 12 months. While the better reading--confirmed by the legislative history--is that the waiting period is, in fact, 12 months, and the residual language about a 90-day period appears to have remained merely as the result of an oversight in draftsmanship, there is no guarantee that this is how the issue will be resolved in forthcoming regulations.

The Act is also unclear about how to count an employer’s total number of employees, a crucial figure that determines both the rate and maximum amount of paid leave that employers must provide. The Act gives no indication whether an employer with workers both inside and outside of the District of Columbia should count all of its employees or only those based in the District. An earlier version of ASSLA defined an "employee" as an individual working at least 50% of the time in the District of Columbia, but this localizing language was removed in a later version of the legislation. As a point of reference, both the DCFMLA and the federal Family and Medical Leave Act count employees on a local basis, and this appears to have been the intended rule, but again, there is no guarantee that ASSLA will be interpreted in this manner in forthcoming regulations.

The District of Columbia Department of Employment Services ("DOES"), is responsible for administering ASSLA and for promulgating regulations to clarify the law. Before the Act becomes applicable in November, the Director of DOES plans to hold public meetings with members of the labor and business communities to receive their input on how best to craft regulations. 

Gibson, Dunn & Crutcher LLP

Gibson, Dunn & Crutcher’s Labor and Employment Practice Group is available to assist with any questions you may have regarding these issues. For further information, please contact the Gibson Dunn attorney with whom you work or 
Jason C. Schwartz - Washington, DC (202-955-8242, jschwartz@gibsondunn.com)
William J. Kilberg - Washington, DC (202-955-8573, wkilberg@gibsondunn.com) 
Eugene Scalia
- Practice Co-Chair, Washington, DC (202-955-8206, escalia@gibsondunn.com)

© 2008 Gibson, Dunn & Crutcher LLP

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