D.C. requires paid COVID-19 vaccination leave, extends DCFMLA leave for COVID-19-related reasons

The Emergency Act amends the D.C. Accrued Sick and Safe Leave Act of 2008 (ASSLA) and the DCFMLA. Because it is an emergency measure, the Act is currently in effect for only 90 days. However, it will likely be extended by additional legislation currently pending before the D.C. Council.

Here is what employers need to know about the new law.

Paid vaccination-related leave

Under the Emergency Act, private employers in D.C. with one or more employees in the District must provide paid vaccination-related leave to any employee who has worked for the employer for at least 15 days before requesting leave. This leave must be in addition to other paid leave that the employer ordinarily provides.

Employees are entitled to paid vaccination-related leave as follows:

• Up to two hours for the employee to receive each injection of an approved COVID-19 vaccine, including booster shots;

• Up to eight hours per injection as needed to recover from vaccination side effects, which must be taken during the 24-hour period following the initial two hour leave period; and

• Employees are entitled to the same amounts of leave described above when taking the employee’s child to be vaccinated or to care for a child recovering from vaccination side effects. “Child” means a child under 18 who lives with the employee and for whom the employee permanently assumes and discharges parental responsibility, or a foster child who is under 18.

The amount of paid vaccination-related leave that employers must provide each employee is capped at 48 hours per year. This leave covers “absence from work” related to COVID-19 vaccination, meaning that an employee need not be paid for vaccination and recovery time incurred when the employee is not scheduled to work. Thus, an employee who receives a vaccination on a Saturday and experiences side effects on a Sunday when that employee is not scheduled to work over the weekend would not be entitled to paid leave.

Employers may require employees to provide reasonable documentation of the need for vaccination-related leave upon return to work, which may include a vaccination record or other documentation showing the date and time of the injection.

Employers who fail to provide paid vaccination-related leave are subject to the ASSLA enforcement provisions, which, for willful violations, include civil penalties of $1,000 for each affected employee, and up to $2,000 for repeat offenses. The mayor is also authorized to enforce violations of the paid vaccination leave provision through investigation and administrative proceedings voluntarily or in response to administrative complaints.

As we previously discussed, the Occupational Safety and Health Administration (OSHA) vaccine-or-test mandate, which is applicable to larger employers, also contains a paid vaccination leave requirement, but the OSHA mandate is currently stayed nationwide pending legal challenges. Employers likely will be able to coordinate the D.C. and federal provisions to avoid duplicative benefits. However, employers covered by the OSHA rule should stay tuned as to how the requirements will intersect if the OSHA rule goes into effect.

DCFMLA COVID-19 leave

As we discussed in an earlier post, prior D.C. emergency legislation required D.C. employers to provide eligible employees with both paid and unpaid leave for certain COVID-19-related reasons through November 5, 2021. The Emergency Act extends the unpaid leave entitlement, which is part of the DCFMLA. The effective date of the Emergency Act is November 18, 2021, but the unpaid leave entitlement is retroactive to November 5. The Emergency Act does not extend the prior paid leave entitlement.

The Emergency Act also does not preserve a prior provision that required employers to provide COVID-19 leave under the DCFMLA regardless of the number of employees the employer has in the District. As a result, under the Emergency Act the standard DCFMLA employer coverage threshold applies, meaning that only those employers with 20 or more employees in the District are now required to provide DCFMLA COVID-19 leave.

Covered employers must provide up to 16 weeks of job-protected, unpaid leave during the two-year period beginning on the Act’s effective date to any employee who has worked for the employer for at least 30 days, if the employee is unable to work because the employee: 

• Has tested positive for COVID-19 or is caring for a family or household member who has tested positive and must quarantine under D.C. Department of Health (DOH) guidelines;

• Has a recommendation from a health care provider, or is required by the employer, to quarantine or isolate due to COVID-19, including because the employee or a household member of the employee is “at high risk for serious illness from COVID-19”;

• Must care for a family or household member who is quarantining or isolating on the recommendation of a health care provider, pursuant to DOH guidance, or under the order or policy of the individual’s school or child care provider; or

• Must care for a child whose school or place of care is closed or whose child care provider is unavailable due to COVID-19.

This leave is in addition to the traditional DCFMLA family and medical leave entitlements.  Employers may require reasonable certification of the need for leave, such as a copy of a positive COVID-19 test result, or the policy of a child’s school stating that the child needs to quarantine or isolate, as applicable. Employees may choose to use paid leave available to them under other employer policies concurrently with DCFMLA COVID-19 leave. Employers who willfully violate the law are subject to a civil penalty of $1,000 for each offense.

Takeaways

Employers covered by the Emergency Act should implement the new requirements and make any needed adjustments to their written policies. Given that employment laws related to COVID-19 vaccinations and the pandemic continue to change rapidly, employers should also continue to monitor for future legal developments.

For questions about these or other COVID-19-related laws affecting your workplace, please contact an author of this post or the Hogan Lovells lawyer with whom you regularly work.

Authored by George Ingham, Amy Kett, and Heather McAdams.