Updated D.C. Sick & Safe Leave

In June 2014, the Sick and Safe Leave (SSL) provisions in the District of Columbia Handbook were updated to reflect 2013 amendments to the District of Columbia Accrued Sick and Safe Leave Act, including elimination of the one-year waiting period to accrue SSL and the extension of the Act to tipped restaurant employees (previously those workers were excluded from the law).

We have been advised by our legal staff that the new provisions will not be implemented in 2014 due to D.C. budget issues (see explanation below).

As a D.C. Handbook subscriber, you either can choose to keep the new provisions in your handbook (Provision “B”), or revert to the prior policy (Provision “A”). The decision depends on what is best for your business.

Background on the Sick & Safe Leave Act

The 2013 amendments to the Sick & Safe Leave Act became effective on February 22, 2014; however, the law also stated that the amendments would not “apply” until the statute was included in an approved budget and financial plan, which was not expected to occur before 2015. Apparently, there were insufficient funds in the existing D.C. budget for the D.C. Department of Employment Services to implement the new law.

Our legal partner, as well as SHRM and many HR policy consultants advised employers to take steps to comply, because the difference between “effectiveness” and “applicability” of the amendments was not clear, particularly because employees now could sue to enforce the law and no D.C. funds were required for that type of enforcement.

The “amendments” have not yet been incorporated into the “official” D.C. Code, which makes it clear that all of these changes are not yet part of the law. Although the D.C. Code acknowledges and refers to the amendments under “legislative history,” it still defines an eligible employee as someone who has worked for the employer for one year and has worked 1000 hours during the preceding 12 months. The Code still excludes from eligibility for sick and safe leave “restaurant wait staff and bartenders who work for a combination of wages and tips.” The Code still states that “paid leave accrued during a 12-month period shall carry over annually” and that “an employee shall not use in one year more than [his maximum annual accrual.]” In short, the official D.C. Code does not reflect the amendments slated to take effect in February. However, the D.C. Department of Employment Services has issued a poster that is at odds with the current D.C. Code as to the Sick & Safe Leave Act requirements because it incorporates the new amendment. Should you decide not to apply the amendments until the “official” D.C. Code is updated (or until the law is included in a passed budget, which has yet to occur) retroactive accrual to February 22, 2014 likely will be required because that was the “effective” date of the amendments.