District of Columbia Expands FMLA and Unemployment Insurance Protections to Address COVID-19

COVID-19 Update

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The District of Columbia Council passed, and the Mayor signed, the COVID-19 Response Emergency Amendment Act of 2020 (the Act). The Act is effective immediately and amends the District of Columbia Family and Medical Leave Act (DCFMLA) to grant leave to employees for reasons related to the coronavirus pandemic. The Act also makes it easier for employees who have lost work due to the coronavirus to qualify for unemployment compensation from the District.

The Act is effective for 90 days, but further legislative action is expected that will keep it in effect for at least 270 days.

Leave for Employees Unable to Work Due to the Coronavirus

The Act amends the DCFMLA to provide for a new category of job-protected leave—“Declaration of Emergency Leave” (DOE Leave)—for employees who are unable to work as a result of circumstances related to the coronavirus pandemic. The Act provides that the need for such leave is established if (1) the Mayor, Department of Health, or any other District or federal agency (Agency) or medical professional has recommended the employee self-quarantine or self-isolate; or (2) the government mandates quarantine or isolation.

Unlike other forms of DCFMLA leave, which apply only to employers with 20 or more employees in the District, this form of leave applies to District employers of any size. Further, the DCFMLA’s usual requirements that to be eligible an employee must have worked for the employer for at least one year and 1,000 hours in the prior 12 months do not apply to employees who have been ordered or recommended to quarantine or isolate by an Agency or a medical professional.

Also, unlike other forms of DCFMLA leave, which are limited to 16 workweeks in a 24-month period, DOE Leave can be taken for the duration of the period for which the Mayor’s declaration of a public health emergency is in effect (the Mayor declared the coronavirus a public health emergency on March 11, 2020).

Like other forms of DCFMLA leave, DOE Leave is unpaid. Effective July 1, 2020, the District’s Universal Paid Leave Amendment Act of 2016 (UPLA) allows employees to receive wage replacement benefits from the District for certain family and medical leave reasons. However, without further legislative action, it does not appear that these wage replacement benefits are available for DOE Leave that does not otherwise qualify under the UPLA.

Perhaps due to an oversight, the DCFMLA’s requirement that employers restore employees on family or medical leave to the same or equivalent position has not been amended to include DOE Leave. Likewise, the requirement that employers maintain health insurance benefits during family or medical leave has not been amended to extend to DOE Leave. However, employers should tread cautiously at this time before denying job restoration or benefits to employees who take DOE Leave.

Although seemingly straightforward, the Act raises a number of questions. For instance, DOE Leave must be granted to employees “unable to work as a result of the circumstances” giving rise to the coronavirus health emergency. While the Act goes on to say that a recommendation or order of quarantine or isolation provides “certification” of the need for such leave, it is not clear that these are the only “circumstances” that could render an employee unable to work as a result of the pandemic. Theoretically, an employee who can’t work because he or she must provide child care due to pandemic-related school closures is unable to work “as a result of the circumstances” giving rise to the pandemic; it is not clear whether DOE Leave must be provided in this or other circumstances, and for the duration of the public health emergency. Hopefully, the District will issue regulatory guidance soon that clarifies these issues.

Expanded Unemployment Insurance for Individuals Affected by COVID-19

The Act expands employee eligibility for unemployment insurance (UI) benefits while the Mayor’s declaration of a public health emergency is in effect , as follows:

  • The Act grants UI benefits to “affected employees,” defined as employees who have become unemployed or partially unemployed by circumstances related to the coronavirus. Such employees include those who have lost work due to (1) being quarantined or isolated by the Department of Health or other Agency; (2) choosing to self-quarantine or self-isolate consistent with the recommendations or guidance of an Agency or a medical professional; or (3) working for an employer that stopped or reduced operations due to an order or guidance of the Mayor or Department of Health, or due to a reduction in business revenue resulting from circumstances related to the coronavirus. Employees are eligible for UI under the new law even if the employer has provided a certain date for return to work, and even where the employee has a reasonable expectation of continued employment with the employer.
  • The Act allows employees to receive UI even if they quit their job, provided they quit because the employer (1) failed to comply with an order of the Department of Health or Mayor requiring protection of employees or the public due to the coronavirus, or (2) required the employee to be physically present in the workplace despite the employee having been quarantined or isolated by an Agency, or self-quarantined or self-isolated consistent with the recommendations or guidance of an Agency or a medical professional.
  • Unlike employees who receive UI for other reasons, those employees receiving UI due to the coronavirus are not required to search for work to remain eligible for benefits.
  • UI benefits paid for reasons related to the coronavirus will not be charged to an employer’s experience rating, which means that an employer’s UI contributions should not increase as a result of these benefits.

What Should Employers Do Now?

Employers must modify their policies to allow for the DOE Leave required by the Act, inform employees of the changes and grant the leave as required. While the changes to UI benefit eligibility do not require immediate employer action, these changes should provide peace of mind that employees who are out of work in these unprecedented times can at least receive UI to help make up for lost wages.

The COVID-19 Response Emergency Amendment Act of 2020 can be found here.

We will continue to provide updates and analysis regarding these rapidly emerging developments, and we invite you to reach out to a member of Manatt’s Employment and Labor team with any questions you may have.

For regular updates on the major challenges companies are facing, please visit our COVID-19 resources page and subscribe for timely updates in your inbox here.