Washington D.C. Accrued Sick and Safe Leave Act Updates Eligibility
While Washington D.C.’s Accrued Sick and Safe Leave Act (ASSLA) or “the Act” was implemented in 2008, 2014 saw some amendments and policy changes to the act that will affect more employers and employees. Sick Leave Laws have seen record growth over the last few years and it can be difficult for business owners and managers to stay on top of continuing legislation and changes. The purpose of this article is to provide an updated overview of the District of Columbia’s Accrued Sick and Safe Leave Act, including the recent addendums.
Covered Employees under ASSLA
Any employee who spends more than 50% of their time working in D.C. is eligible for The Act. If an employee spends less than 50% of their time in D.C., but doesn’t work in any other state for more than 50% of their time and Washington D.C. is their primary place of employment, then they are also eligible. The definitions of employees have recently expanded with the new amendments to the Act. Under the new law, an employee is defined to be anyone whose wages, hours or working conditions are controlled by another person. An employer is anyone who controls hours, wages or working conditions. Under this definition, temporary workers, employees through a staffing service, and tipped employees are now considered employees.
Update: The amendment of 2015 expanded the definition of employee to include restaurant and bar employees who receive regular tips. Additionally, exclusions to ASSL were also expanded to create a clearer definition of who is excluded from the law. Joint employees, as well as temporary employees are included.
Exclusions to Earned Sick & Safe Time
There are a number of exceptions to those considered employees under ASSLA. Employees are not considered to be volunteers without payment for non-profit, religious, educational, or charitable organization. Lay member or elected individuals to office within religious institutions are also not considered to be employees. Casual babysitters are also not considered employees. Independent contractors and students are not considered employees. Construction industry employees who are covered by a collective bargaining agreement, or union contract are not covered by the Act. Lastly, Health Care Providers who participate in a premium pay program are not considered to be employees.
Overview of D.C.’s Sick and Safe Time Leave Act
All employers are required to provide some sick and safe time leave to employees. The amount of paid time depends on the size of the employer. Large Employers who have 100 or more employees must allow accrual of 1 hour for every 37 hours worked up to 7 days per year of paid leave. Mid-sized employers with 25-99 employees must provide 1 hour of paid sick leave for every 43 hours worked. Mid-sized employers can cap leave accrual and usage to 5 days of leave each year. Small employers with less than 25 employees must provide accrued leave at 1 hour for every 87 hours worked and can cap the accrual to 3 days of leave per year.
|Accrual Rate||Maximum Amount of Leave Each Year|
|1-24 Employees||1 hour per 87 hours||3 days paid sick leave|
|25-99 Employees||1 hour per 43 hours||5 days of paid sick leave|
|100 + Employees||1 hour per 37 hours||7 days of paid sick leave|
The Act and Amendments are silent around sick leave rolling from year to year. However, the D. C. Department of Employment Services is responsible for implementing the act. In its official issue notice, it stated that “an employee’s accrued paid sick leave carries over from year to year.” Therefore, it is recommended that employers roll employees accrued, but unused sick leave from one year to the next.
Qualified Uses for Accrued Sick and Safe Time Leave
Employees are allowed to use their Accrued Sick and Safe Time Leave for four main reasons. Those reasons include both mental and physical illness, injuries, and health conditions. Employees can use the leave to obtain medical care, diagnosis, or preventative care. Additionally, victims of domestic violence, sexual assault or stalking can use accrued sick and safe time to obtain services related to the domestic violence, stalking, or sexual assault. Services can be social or legal services and include the ability of the employee to use safe time to relocate, either temporarily or permanently, to a safe place, obtain counseling related to the violence. This can include medical services, counseling, legal services and more. Safe time can be take to enhance the safety of the employee, the employee’s family member, coworkers, or associates. Employees can use ASSLA to participate in and prepare for criminal and civil legal proceedings.
- Physical or mental illness, injury, or medical condition of the employee
- To obtain medical diagnosis or preventative care for the employee
- To obtain care or services related to stalking, domestic violence, or sexual abuse.
- Seek medical condition to recover from physical or psychological injury or disability caused by the violence.
- Obtain services from a victim services organization
- Obtain psychological or other counseling
- Temporarily or permanently relocate
- To take legal action, civil or criminal, including preparing for and participating in any proceeding.
- To take other actions to enhance the physical, psychological, or economic health or safety of the employee or employee’s family member, or to enhance the safety of any of those who associate with or work with the employee.
The Act covers both the employee and the employee’s family members. Employees can take off paid sick and safe time for any of these reasons for both themselves and for their family members.
Family Member Definitions
Under ASSLA, the specific relationships are acknowledged. Spouse, domestic partner, or someone with whom the employee has a committed relationship and has shared a mutual residence with for the preceding 12 months. Family also includes children, parents, parents-in-law, children’s spouses, siblings, and siblings spouses. Foster children and grandchildren are also acknowledged relationships. Further, any children living with the employee and for whom the employee permanently assumes and discharges parental responsibility for is also counted.
- Spouse or Domestic partner, including any person the employee has shared a mutual residence for the previous 12 months and is in a committed relationship with the employee.
- Parents of employee and parents of a spouse
- Children, including foster children, children of a spouse, and grandchildren. Any child living with the employee that the employee permanently assumes and discharges parental responsibility for.
- Brothers and sisters
- Nieces and nephews
Probationary Period for Sick and Safe Time
Under the 2008 law, employers could restrict an employee’s use of sick and safe leave for the first 12 months that an employee is employed. However, the new amendment only allows for employers to restrict leave for the first 90 days. Employees start accruing leave on the first day of employment and are allowed to use accrued leave after 90 days.
Commissioned employees should be paid sick and safe time on the basis of their average sales or commissions for a day. Employers must calculate the average number of sales for the day, or hourly, if a full day is not taken. That rate should then be paid to the commissioned employee.
Sick Leave Bank and Usage
The Amendment to The Act adds a sick leave bank of 12 months for employees who leave an employer and reinstate employment with that same employer. Once an employee reinstates employment, they are immediately eligible for previously accrued and unused sick and safe leave. However, the employee must have been previously eligible to use the leave when they left the employer.
Reasonable Notification and Documentation
When reasonable and foreseeable, employers can require an employee to give written notice of the leave taken under ASSLA with a 10 day notice. If circumstances are unforeseeable, then the employer can request that the employee notify them as soon as it is reasonable. Also the employer can require the employee to provide an oral notice prior to the start of the shift the employee is scheduled to work or within 24 hours of of the onset of the emergency, whichever is sooner.
If employees use 3 or more concurrent days of leave, then the employer is allowed to ask for reasonable documentation. The employee can furnish the documentation upon returning to work.
Anti Retaliation, Notification
Employers are prohibited against retaliating against an employee who asserts their rights under ASSLA. Employees are protected when filing a complaint, complainant to the employer, filing a civil complaint, cooperating with DEC, informing anyone about the employer’s violation of ASSLA, opposing an act that’s in violation of ASSLA, and informing any person of their rights under ASSLA.
Employers are required to post notice for employees in English of their rights under ASSLA. Employers are also required to post notice in any other language in which 1 or more employee who has limited command of English speaks.
Fines and Remedies provided by the Accrued Sick and Safe Time Ordinance
The District of Columbia provides for several remedies for employees who have had their rights violated against under ASSLA. Those remedies include repayment of back pay, reinstatement and other injunctive relief, compensatory or punitive damages, including at least $500 in daily damages, and reasonable attorney fees and costs. All damages can be awarded to the employee with interest.
Further, employers can be assessed a fine of $1,000 for the first offense, $1,500 for the second offense and $2,000 for each subsequent offense. These fines add up quickly to a business. The fines are in addition to the private right of action that the employee can seek against an employer who violates the act.
Notification and Records
Employers are required to keep records for at least 3 years. The records have to be made accessible for compliance reasons and upon reasonable notice. Failure to maintain records can limit an employer’s ability to offer a rebuttal that they did not violate the Accrued Sick and Safe Leave Act. Employers should keep records of hours worked by the employee and accrued and used leave. Further, the updated amendment states that employers who don’t keep adequate records are presumed to have violated the act.
Let SwipeClock Help
Businesses who have employees in the District of Columbia, and a growing list of other cities and states may have to comply with conflicting City ordinances defining Sick leave accrual and usage laws. Additionally, these businesses have to also comply with Federal Overtime Laws, the Family Leave Medical Act and any other national or local laws that are enacted. SwipeClock provides a comprehensive array of workforce management and time tracking tools that can help businesses to more easily stay in compliance with local and national laws. Records are effortlessly kept for years and accrual is automatically tracked and reported to employees according the state and city laws. Additionally, with geo-timekeeping clocks, businesses can effortlessly track time worked in specific cities to ensure compliance.
SwipeClock is a leading provider of cloud-based integrated workforce management solutions that include automated time and attendance, advanced scheduling, and leave management capabilities. The company’s products, including TimeWorks Plus, Time Simplicity, and Workforce Management Clock enable employers to manage their most important and expensive asset-employees-by transforming labor from a cost of doing business to a competitive advantage. SwipeClock’s workforce management solutions are sold through over 850 partners that empower more than 26,000 businesses to lower labor costs, comply with regulatory mandates, and maximize their profits. For more information, please visit www.swipeclock.com,
Written by Annemaria Duran. Last updated on April 4, 2017