D.C. employees’ COVID-19 leave expires with public health emergency
For the first time since declaring a public health emergency on March 11, 2020, Mayor Muriel Bowser has declined to extend the public health emergency in the District of Columbia, which was effective through May 20, 2021. Interestingly, the Mayor permitted the public health emergency to expire despite having authorization by the D.C. Council to extend it until July 25.
While some D.C. residents may be celebrating an incremental return to normalcy resulting from loosened restrictions on businesses and public venues, others may be facing unanticipated hardship as their job-protected leave under the District of Columbia Family and Medical Leave Act (DCFMLA) abruptly terminates.
The DCFMLA requires covered employers to provide up to 16 weeks of unpaid, job‐protected medical leave every 24 months to eligible employees with a serious health condition. In addition, eligible employees may take up to 16 weeks of unpaid, job-protected family leave every 24 months for the birth or adoption of a child or to care for a family member with a serious health condition. During the pandemic, multiple pieces of emergency legislation were passed that temporarily amend the DCFMLA to create an additional, independent 16 week bucket of “COVID-19 leave” during the public health emergency. COVID-19 leave can be used when an eligible employee is unable to work, during the COVID-19 public health emergency, due to:
- A recommendation from a health care provider that the employee isolate or quarantine, including because the employee or an individual with whom the employee shares a household is at high risk for serious illness from COVID-19;
- A need to care for a family member or an individual with whom the employee shares a household who is under a government or health care provider's order to quarantine or isolate; or
- A need to care for a child whose school or place of care is closed or whose childcare provider is unavailable to the employee.
COVID-19 leave has more lenient eligibility requirements than medical and family leave under the DCFMLA – requiring only 30 days of employment prior to the leave request – and is available to D.C. employees regardless of their employers’ size. However, there is one instrumental caveat: the right to COVID-19 leave expires on the date Mayor Bowser’s declaration of the COVID-19 public health emergency expires. And that day is upon us.
Although it is possible for Mayor Bowser to reinstitute the public health emergency if COVID-19 cases climb, for now the emergency has ended in D.C. . . .along with COVID-19 leave under the DCFMLA.
What employers should do
If you haven’t already informed employees on COVID-19 leave that their job-protected DCFMLA leave has ended, act now. But before you demand anyone report to the office or take adverse employment action against those who continue to be AWOL, consider whether you might have an obligation to engage in the interactive process and/or provide accommodations, particularly for those high risk individuals who qualified for COVID-19 leave due to a health care provider’s recommendation that the employee isolate or quarantine due to an underlying health condition. Also consider the possibility of extending personal leave, including to those employee caregivers who may have been blindsided by this news and need time to arrange for alternative care for their child or family member. We all know that this is a time of rapidly changing legal and regulatory requirements. Leading with flexibility and compassion will go a long way in motivating and helping to retain your employees long after the public health emergency has ended.
What Guardian is doing
Guardian’s teams are up-to-date on the expiration of the public health emergency in D.C., and our operational processes align accordingly. We will continue to monitor the situation in D.C. – including emergency status and the effective dates of the enabling legislation – and “toggle” COVID-19 leave as needed in the future.