DC s New Sick and Safe Leave Act: Sample Policy The D.C. Accrued Sick and Safe Leave Act of 2008 ( SSLA ) was passed by the D.C. City Council on March 4, 2008 and signed by D.C. Mayor Adrian Fenty on March 19. After a thirty-day period for Congressional review, and the passage of an appropriations bill that included funding for the Act, it became effective on May 13, 2008. Employers are given a six-month period, until November 13, 2008, to comply. The D.C. Department of Employment Services (DOES) will administer and enforce the Act. The Mayor is empowered to issue regulations under the Act, but no regulations have yet been released. The Act generally requires that employers provide a specified number of paid leave days per year, depending on the size of the employer: If my company has 100 or more employees: 1 The policy must provide 1 hour of paid sick leave per calendar year for each 37 hours worked by the employee, to a maximum of 7 days/year. If my company has 25-99 employees: The policy must provide 1 hour of paid sick leave per calendar year for each 43 hours worked by the employee, to a maximum of 5 days/year. If my company has fewer than 24 employees: The policy must provide 1 hour of paid sick leave per calendar year for each 87 hours worked by the employee, to a maximum of 3 days/year. Paid leave under the Act can be used for illness of the employee or a family member, as well as absences caused by stalking, domestic violence or sexual abuse of the employee or family member. The leave carries over from year to year, but an employee cannot use more than the maximum number of permitted 1 The number of employees is determined by the average monthly number of full-time equivalent employees for the prior calendar year. This is calculated by adding the total monthly full-time equivalent employees for each month and dividing by 12. Employees outside of the District of Columbia should be counted when determining how many days of SSLA leave an employer must provide, because the Act does not state to the contrary. However, this does not mean that an employer must provide SSLA leave to employees who work outside of the District. In general, the laws in effect where an employee works are those that apply. We do not believe at this time that the SSLA will be interpreted to require that leave be provided to employees who do not work in D.C.
leave days in any calendar year. Leave need not be paid out upon termination of employment. Employees cannot be retaliated against for using leave, exercising their rights under the Act, opposing violations of the Act, or instituting or participating in proceedings or charges relating to the Act. All D.C. employers are subject to the Act, even those with only one employee. Institutions of higher learning, health care providers, beauty, hair and nail salons, restaurants, and bars are subject to special rules that are not reflected in the sample policy below. For employees who do not suffer a loss of income when absent from work, paid leave under the Act is not required, although the Act s anti-retaliation provisions still apply. The Act includes a hardship exemption, but the regulations outlining the procedure and factors have not yet been passed. The Act includes a posting requirement, but no poster has yet been issued by the DOES. Employers who have no existing sick or vacation leave policies can simply adopt a new policy that complies with the Act. The sample policy below can be used for this purpose. Employers with an existing sick leave policy can either eliminate that policy and replace it with a policy that complies with the SSLA (such as the policy below), or amend their existing policy to comply. Vacation leave policies are not affected by the SSLA. Employers with PTO policies may wish to consider converting those policies into separate sick and vacation policies. Otherwise, the protections of this Act, such as accrual upon commencement of employment, unlimited carryover from year-to-year, and anti-retaliation provisions, essentially will apply to the entire PTO policy. The SSLA is full of ambiguities, and to date there are no regulations or judicial opinions to provide clarity. This policy reflects our current thinking as to how the SSLA will likely be enforced, but HR professionals should monitor closely all developments in this area. Future case law and regulations may change the way the law is to be applied. Page 2
Sample Policy Sick and Safe Leave Policy Eligible employees are entitled to up to days [Note to employer: fill in 7, 5 or 3, depending on the size of the employer] of paid leave per year for the illness of the employee or a family member, or to help ensure the safety of the employee or a family member as provided below. Employees begin to accrue leave under this policy at the start of their employment. One hour of paid sick/safe leave accrues for each hours worked by the employee, to a maximum of days/year. [Note to employer: fill in 37/43/87 and 7/5/3, depending on the size of the employer.] However, employees must be employed for one year without a break in service, and must work 1000 hours during the twelve months preceding the leave, in order to be eligible to use accrued sick/safe leave. Once an employee is eligible to use his or her accrued leave, the employee must be employed an additional 90 days in order to access that leave. [Note to employer: these convoluted eligibility criteria are due to an ambiguity in the act which may be clarified by case law or regulations.] Both full-time and part-time employees are eligible to accrue and use sick/safe leave. Sick/safe leave can be used for: 1. The employee s own physical or mental illness, injury or medical condition; 2. The employee s need to obtain professional medical diagnosis or care or preventive medical care (i.e., doctor s appointments); however, employees are required to make a reasonable effort to schedule leave under this section in a manner that does not unduly disrupt the operations of the employer; 3. The employee s need to care for a family member for reasons covered by Nos. 1 and 2 above; Page 3
4. Under certain circumstances, an absence because the employee or family member is a victim of stalking, domestic violence, or sexual abuse, if certain additional requirements are met. For more information about which absences qualify as sick/safe leave, please see Human Resources. Some, but not all, sick/safe leave also will be covered by the Family and Medical Leave Act (FMLA) and/or the D.C. Family and Medical Leave Act (DC FMLA). Leave that qualifies under both policies will be subject to the requirements of both policies. A family member includes: 1. A spouse, including a registered domestic partner; 2. The parents of a spouse; 3. Children (including foster children and grandchildren); 4. Parents; 5. Brothers and sisters; 6. The spouses of brothers and sisters; 7. A child who lives with an employee and for whom the employee permanently assumes and discharges parental responsibility; and 8. A person with whom the employee shares or has shared, for not less than the preceding 12 months, a mutual residence and with whom the employee maintains a committed relationship. For more information about who counts as a family member, please see Human Resources. Sick/safe leave under this policy carries over at the end of each calendar year. However, an employee cannot use, in any one calendar year, more than his/her maximum annual accrual. Sick/safe leave is not paid out on termination of employment. An employee who wishes to work additional hours or shifts during the same or next pay period to make up for missed time, rather than use paid sick/safe leave, Page 4
must obtain approval from his or her supervisor. Approval will not be granted if the request would cause a nonexempt employee to work more than 40 hours in a workweek, except in rare circumstances. Employees must request sick/safe leave in writing, state a reason for the absence and indicate the expected duration of the leave. If the need for leave is foreseeable, the employee must provide ten days advance notice. If the need for leave is unforeseeable, an oral request should be provided prior to the start of the work shift for which the paid leave is requested. In the case of an emergency, employees must provide notification prior to the start of the next work shift or within 24 hours of the onset of the emergency, whichever is sooner. Employees who take sick/safe leave for three or more consecutive days may be required to provide reasonable certification of the need for leave including, for example, a signed document from a health care provider, a police report, a court order, or a signed statement from a victim or witness advocate or domestic violence counselor. This certification shall be provided upon the employee s return to work. In providing certification, no health care provider shall be required to provide information protected by the Social Security Act or the Health Insurance Portability and Accountability Act (HIPAA). Employees will not face retaliation or reprisal for requesting or using leave or asserting rights under this policy. The Company will not interfere with, restrain or deny an eligible employee s use of leave, attempt to use leave or assertion of rights under this policy. Employees may raise concerns regarding this policy and seek redress for those concerns without fear of discrimination or discharge. Any employee who believes he or she has been treated in violation of this paragraph should immediately inform the Human Resources Department, his/her supervisor, or any other supervisor or manager. Page 5