For employees with a workplace in Washington, D.C., a number of recent laws have broadened access to job-protected leave — including a new class of fully paid leave — for the duration of the COVID-19 health emergency. Legislation also has relaxed the rules of D.C.'s unemployment insurance program. Here our firm outlines the biggest changes and answers some common questions.
This article by TELG principal Adam Augustine Carter was published by The Employment Law Group, P.C. on June 7, 2020.
New Rights for D.C. Employees Under COVID-19 Emergency Laws
By Adam Augustine Carter
Note: This article is focused on employees with workplaces in Washington, D.C. For a look at COVID-19 leave laws that apply nationwide, click here.
Starting in March 2020, the Council of the District of Columbia passed several emergency bills that expanded the rights of D.C. employees to take job-protected leave — including paid leave — during the COVID-19 pandemic, while also relaxing the rules for receiving unemployment payments.
As emergency legislation, each bill was slated to expire 90 days after taking effect. However, the council recently combined and re-passed all the measures — meaning that all the emergency provisions now remain valid at least through late August, a date that could be pushed back again by a further bill.
Meanwhile the Council is working on a “temporary” version of the same bill, which is a step up from emergency legislation and could extend the measures even longer.
This article answers some common questions about the new employee rights and protections that are included in the Coronavirus Support Emergency Amendment Act of 2020 (CSEAA), which gathers four previously effective emergency bills into a single measure. It is based on our firm’s best knowledge as of June 7, 2020.
Bear in mind that the CSEAA supplements and interacts with existing D.C. and federal laws, as well as employer policies that may, in some cases, be more generous than the law requires. To understand your individual situation fully, please consult an employment attorney.
WHAT YOU NEED TO KNOW
IMPORTANT: The following Q+A is intended as a general summary of facts and law and not as legal advice upon which you should rely or act. Every case is unique and fact-specific.
Q: How will these measures help me to cope with this pandemic?
A: For most D.C. employees, the top three work-related changes are:
- Expanded access to paid leave if you are unable to work for COVID-related reasons — with terms that may improve on federal law;
- Expanded access to unpaid leave if you are unable to work for COVID-related reasons — again, on better terms than federal law; and
- Expanded access to D.C.’s unemployment insurance program.
For more detail on these three changes, read on.
The CSEAA also makes some adjustments to D.C.’s “shared work” program, which some employers may use as an alternative to layoffs. This article won’t address that program, as it is quite complex.
Q: Paid COVID leave sounds sensible. How does that work?
A: The CSEAA extends the duration of an emergency law that became effective on April 10, 2020, amending D.C.’s Accrued Sick and Safe Leave Act of 2008. It basically provides two weeks of paid leave for anyone who must take sick leave for themselves or to take care of a family member for specified coronavirus-related reasons — including the closure of a minor child’s school or daycare. (Your child need not be sick, in other words.) You need give only 48 hours’ notice before using this leave, or possibly less in an emergency situation.
Q: Isn’t that roughly what federal law now provides? How does that help me?
A: It’s true that the federal Emergency Paid Sick Leave Act (EPSLA), which we discuss here, also provides two weeks of paid leave — at prorated pay if you work part-time — and that the D.C. law matches the EPSLA’s allowable reasons for such paid leave.
However, D.C.’s law provides full regular pay for the duration of the leave, whereas federal law has a cap of $200 per day if you take the leave to care for someone else. (The daily cap is $511 if you’re sick yourself.) You can’t combine D.C. and federal leave — or your employer’s policies — to get paid for longer than two weeks, but you can use the D.C. leave to get paid at your regular rate if you normally earn above the relevant federal cap.
Q: Any limitations I should know about?
A: Under the CSEAA, you must take paid leave along with or after exhausting any other paid leave to which you’re entitled — and your employer can reduce your CSEAA pay by the amount you get paid under federal law or its own policy. In effect, then, this law “tops up” your pay for two weeks if you can’t get fully paid by other means.
Also, the law applies only to non-healthcare employers with 50-499 employees, and you must have worked for your employer for at least 15 days before requesting leave. The law is effective only for the duration of the COVID-19 emergency as declared by Mayor Muriel Bowser.
Q: I’m still working, but my hours have been reduced so I’ve been earning less lately. If I were to qualify for paid leave under the CSEAA, would I get paid at my pre-pandemic rate?
A: It’s not clear. The CSEAA says you must be paid your “regular rate of pay.” For an employee “who does not have a regular rate of pay,” the law makes a per-hour calculation based on the most recent two weeks. It may be worth your while to consult an employment lawyer.
Q: I’m on an unpaid furlough due to the pandemic, but I’m still getting benefits like health insurance. Can I claim paid leave under the CSEAA?
A: Again, it’s not entirely clear and may depend on your specific circumstances. You may want to consult an employment lawyer.
Q: I was laid off due to the pandemic, but my employer continues to operate with a smaller staff. Can I claim paid leave?
A: No. You must be employed in order to claim leave, whether paid or unpaid.
Q: OK, let’s move on. How about unpaid leave?
A: The D.C. Family and Medical Leave Act of 1990 (DCFMLA) is more generous than its federal equivalent, protecting employees’ jobs for 16 weeks of unpaid leave rather than the 12 weeks mandated by federal law. Under the CSEAA and a predecessor law, which has been in effect since March 17, a new category of “COVID-19 leave” is available for up to 16 weeks under the DCFMLA — and it’s available to more people than regular DCFMLA leave.
Specifically, to qualify for unpaid COVID-19 leave you need to have worked for your employer for only 30 days before requesting leave. That’s a big change from the regular DCFMLA, which requires at least a year of service. Also, the new law covers all D.C. employers regardless of size; the regular DCFMLA covers only employers with more than 20 employees.
Unpaid COVID-19 leave is available for the duration of the emergency declared by Mayor Bowser. You may claim it if you can’t work for one of these reasons:
- You’ve been told to isolate or quarantine because you or someone in your home is at high risk for serious illness from COVID-19;
- You need to care for a household member who is under orders to isolate or quarantine; or
- You need to care for a child for whom school or daycare is unavailable.
So, as with paid leave, no one needs to be sick in order to claim unpaid leave — losing childcare is a sufficient reason as long as it makes you unable to work, and so is having a high-risk family member as long as a doctor has said that your continuing to work would be dangerous.
Your employer may ask you for “reasonable certification” of your need for leave; the law includes a list of acceptable proof.
Q: Wait, remind me: If I’m not getting paid, what’s the point of DCFMLA (or FMLA) leave?
A: You should continue to get benefits, and your job is legally protected while you take time to care for yourself or your family. In particular, your employer can’t penalize or fire you for taking this leave — or even for asking for it. And when your leave is over, your employer must re-employ you in the same position or its equivalent.
Q: Is that the same for paid leave also?
Q: Do I need to take paid leave and unpaid leave in any particular order?
A: No, the order is up to you. Most people will choose to take paid leave first, but it’s not required — and your employer can’t tell you otherwise. Paid leave will get counted against the unpaid leave that you have available under DCFMLA, however.
Q: I was on DCFMLA leave when my employer stopped operations and fired everyone because of the pandemic — including me. I thought my job was protected?
A: It’s illegal to fire someone for taking protected leave, but it sounds like that’s not the case here. And while normally you’d be entitled to return to an equivalent job, the law can’t make that happen if your employer has gone out of business. Still, it may be worth discussing your situation with an employment lawyer — especially if there’s a chance your employer will restart operations.
And in the meantime, of course, you are likely to be eligible for unemployment insurance under D.C.’s expanded program.
Q: Right. So how has unemployment insurance been expanded to deal with COVID-19?
A: Starting on March 17, 2020 it became easier for anyone affected by COVID-19 to claim unemployment insurance in D.C. — and a further “clarification” law on April 10, 2020 expanded eligibility further. The CSEAA will extend these measures at least through late August or until Mayor Bowser rescinds the current public health emergency. The CSEAA works in conjunction with new unemployment benefits required by the federal Coronavirus Aid, Relief, and Economic Security Act (CARES Act) that became law on March 27, 2020. The CARES Act isn’t addressed by this article.
For most people the two key changes in D.C. are:
- Unemployment benefits may be claimed by people who become unemployed or “partially unemployed” due to the pandemic, regardless of whether the layoff, furlough, or work reduction is supposed to be temporary — and even where their employer already has announced a back-to-normal date.
- Unemployment benefits may be granted to people who “otherwise would not qualify” under regular rules, including individuals who are “self-employed, seeking part-time employment, [or] do not have sufficient work history.”
Newly valid reasons for claiming unemployment are:
- Your employer has stopped or reduced its operations based on a government COVID order or because of reduced business during the pandemic; or
- You are in quarantine or isolation based on a government order or “in a manner consistent with the recommendations or guidance of [government agencies] or a medical professional”; or
- You decline to work because your employer has failed to follow government health and safety orders or to honor your valid quarantine or isolation as described above.
Taken together, these changes should grant eligibility to most people who have lost work due to COVID-19. Note that you may need to provide “reasonable documentation” of your stated reason.
Q: Any other unemployment changes I should be aware of?
A: Normally D.C. claimants have a one-week waiting period before they are eligible for benefits; must actively search for work while they receive payments; and can’t make a claim based on employment when they lacked legal documentation (like a green card, for non-citizens). Under the CSEAA, such requirements may be waived with “broad discretion” while the public health emergency is in effect.
Note: D.C.’s original COVID emergency measure, which became law on March 17 and expires on June 15, absolutely waived the work-search requirement. That language doesn’t reappear in the CSEAA, however — so presumably an ongoing waiver will depend on the judgment of Unique N. Morris-Hughes, director of the D.C. Department of Employment Services (DOES).
D.C.’s unemployment system is complex, and many rules will continue to apply even under the CSEAA. For information that’s fully up-to-date, rely on the DOES Web site.
Adam Augustine Carter is a principal of The Employment Law Group, P.C.