COVID-19 Updates in the DMV: Guidance for D.C., Maryland & Virginia Employers

With the rapid spread of COVID-19 throughout the United States, various state and local governments have scrambled to adjust existing legislation, or create new legislation, to account for the “new normal.”  It is no surprise that many employers, especially those that operate in multiple jurisdictions, are struggling to keep up.  Here we have summarized recent COVID-19 related updates in the D.C., Maryland, and Virginia region.  For additional information on these topics, please reach out to a member of Mintz’s Employment, Labor & Benefits team.

I.          Washington, D.C.

On March 17, 2020, D.C. Mayor Muriel Bowser signed into law the COVID-19 Response Emergency Amendment Act (the “Act”), which, among other things, temporarily expands covered leave under the D.C. Family and Medical Leave Act (“DCFMLA”) and also expands unemployment insurance (“UI”) coverage. 

Subsequently, on April 10, 2020, Mayor Bowser signed a second relief bill into law, the COVID-19 Response Supplemental Emergency Amendment Act of 2020 (the “Supplemental Act”), which, among other things, expands paid leave offered under the D.C. Accrued Sick and Safe Leave Act.  The Supplemental Act applies retroactively to March 11, 2020 and is currently set to expire on July 9, 2020, although an extension may occur in the event that D.C. continues to extend its “shelter in place” orders. 

Below is a summary of the pertinent portions of the Act and Supplemental Act as they pertain to enhanced leave and unemployment coverage.

Expansion of DCFMLA Coverage

The Act expands DCFMLA by creating a new category of declaration of emergency (“DOE”) leave.  The new DOE leave is available for the duration of the period that the public health emergency is in place.

What employers are covered?

DOE leave must be provided by all employers in D.C., regardless of the number of employees that the entity employs.

What employees are eligible for leave under the Act?

The Act suspends the normal eligibility requirements under the DCFMLA, (i.e., one-year of employment and 1,000 hours of work).  In addition, DOE leave is available for any employee who has been ordered or recommended to quarantine or isolate by the Department of Health, any other District or federal agency, or a medical professional.

What are eligible reasons for leave?

Employees are entitled to DOE leave if they are unable to work for a period of time in which the Mayor has declared a public health emergency and the Mayor, or other federal or state official, or a medical professional, has ordered or recommended that the employee self-isolate or quarantine. 

Expansion of Accrued Sick and Safe Leave Act

What employers are covered?

The expanded Accrued Sick and Safe Leave Act applies to all D.C. employers that have between 50 and 499 employees and are not healthcare providers. A “healthcare provider” is defined broadly in the Supplemental Act to include “any doctor's office, hospital, health care center, clinic, post-secondary educational institution offering health care instruction, medical school, local health department or agency, nursing facility, retirement facility, nursing home, home health care provider, any facility that performs laboratory or medical testing, pharmacy, or any similar institution, employer, or entity.”

What employees are eligible for leave under the Act?

All employees are eligible for leave under the Supplemental Act, so long as they commenced work for their employer at least 15 days prior to the request for leave. 

What are eligible reasons for leave?

Eligible employees are entitled to paid leave for any reason employees may be eligible for leave under the federal Families First Coronavirus Response Act (“FFCRA”).  For a brief refresher on permitted reasons for leave under the FFCRA, here is our prior post on the issue.

How much leave is provided?

Full-time employees are entitled to up to 80 hours of paid leave.  Part-time employees are entitled to paid leave equal to the usual number of hours the employee works in a two-week period.  

Employees must be compensated at their regular rate of pay during leave. If the employee does not have a regular rate of pay, than the amount will be determined by dividing the employee’s total gross earnings for the most recent two-week period that the employee worked, by the number of hours the employee worked during that two-week period.

Are employers entitled to a tax credit for providing leave under the Supplemental Act?

No.  Unlike the FFCRA, there is no provision in the Supplemental Act for a tax credit or other financial incentive in connection with the required leave.

Does the leave run concurrently with leave provided under the FFCRA?

No.  Leave under the Supplemental Act does not run concurrently with leave under the FFCRA. However, employers may require employees to exhaust existing accrued leave mandated by federal or District law, or leave provided pursuant to the employer’s policies, prior to using leave under the Supplemental Act.

Are employees required to give notice prior to taking leave?

Yes.  Employees must provide their employers with 48 hours’ advance notice of the need for leave, unless leave is taken in connection with an emergency, in which case only reasonable notice is required.  

Can employers request documentation in connection with leave under the Supplemental Act?

It depends.  Employers can require employees to provide a certificate from a medical professional certifying his or her need for leave, but only if: (1) the employer contributes payments towards a health insurance plan on behalf of the employee; and (2) the employee uses three or more consecutive working days of paid leave.  If both of those requirements are met, the employee must provide the requested documentation within one week after the employee’s return to work. 

Expansion of Unemployment Insurance Coverage

The Act expands upon UI coverage for the duration of time that the Mayor has declared a public health emergency.  While the public health emergency remains in effect, the following changes will be in effect:

1. The work search requirement normally imposed on affected employees seeking UI coverage will be suspended; and
2. Affected employees will be eligible for UI coverage regardless of whether the (i) employer has provided a date certain for the employee’s return to work; or (ii) the employee has a reasonable expectation of continued employment with the current employer.  

The Act defines “affected employee” as an employee otherwise eligible for UI pursuant to section 9 of the D.C. Unemployment Compensation Act, who is determined by the Mayor to have become unemployed or partially unemployed as a result of the circumstances giving rise to the public health emergency.  “Affected employees” include: (i) an employee who has been quarantined or isolated by the Department of Health, or any other applicable District or federal agency; (ii) an employee who has self-quarantined or self-isolated in a manner consistent with the recommendations or guidance of the Department of Health, any other applicable District or federal agency, or a medical professional; or (iii) an employee of an employer that ceased or reduced operations due to an order or guidance from the Mayor or the Department of Health or a reduction in business revenue resulting from the circumstances giving rise to the public health emergency.

The Supplemental Act further amended UI coverage to state that the term “employment” may include individuals who are self-employed, seeking part-time employment, do not have sufficient work history, or otherwise would not qualify for regular unemployment or extended benefits under District or federal law or pandemic emergency unemployment compensation.

Expansion of Work Share Program

In 2010, D.C. enacted the “Keep D.C. Working Act of 2010” which established the Shared Work Unemployment Insurance Program (“Shared Work”).  The Shared Work program is a voluntary program that provides an alternative to layoffs for employers confronted with a temporary decline in business.  The Supplemental Act expands upon the existing program by allowing benefits for workers whose employers reduce their work hours by between 10% and 60% (previously the limitations around the reduction were between 20%-40%).

II.        Maryland:

Paid Sick and Safe Leave

Unlike D.C., Maryland has not expanded its sick and safe leave protections. However, covered employers should be aware of the protections offered to employees by the Maryland Healthy Working Families Act (“MHWFA”), as well as the Montgomery County Earned Sick and Safe Leave Law.

What employers are covered under MHWFA?

Employers with 15 or more covered employees are required to provide paid sick and safe leave. Conversely, employers with 14 or fewer covered employees are only required to provide unpaid sick and safe leave.

What employees are eligible for leave under MHWFA?

Any employee who is primarily employed in Maryland is eligible for this leave, except:

1. Independent contractors;
2. Real estate salespeople or associate real estate brokers;
3. Minors;
4. Agricultural employees;
5. Individuals employed by a temporary services agency to provide temporary staffing services to another person if the agency does not have day-to-day control over the work assignments and supervision of the individual while providing temporary staffing services;
6. Individuals directly employed by an employment agency to provide part-time or temporary services to another person;
7. Individuals who regularly work fewer than 12 hours a week; and
8. Individuals who are called to work by the employer on an as-needed basis in a health or human services industry, can reject or accept the shift offered by the employer, are not guaranteed to be called on to work by the employer, and are not employed by a temporary staffing agency.

What are eligible reasons for leave?

Employees may be able to utilize leave under MHWFA for COVID-19 related reasons. Specifically, employees may use accrued leave for “sick” time, such as for the care or treatment of their own, or a family member’s, mental or physical illness, injury, or condition, or for preventive medical care for an employee or employee’s family member. Under the MHWFA, “family members,” include children, grandchildren, grandparents, parents (including in-laws), siblings, and spouses.

Additionally, the Maryland Flexible Leave Act, allows employees to use accrued paid leave to care for an immediate family member with an illness under the same conditions and rules that would apply if the employee took leave for the employee’s own illness.

How much leave is provided?

Leave accrues at a rate of 1 hour of leave for every 30 hours worked.  An employee is not permitted to use more than 64 hours of sick and safe leave in a calendar year.

Montgomery County Earned Sick and Safe Leave Law

Montgomery County imposes additional sick and safe leave requirements on all employers with one or more eligible employees who work in Montgomery County, Maryland, through the Earned Sick and Safe Leave Law.

This law provides accrued leave that may be used for the following reasons applicable to the COVID-19 outbreak, among others:

1. An employee's mental or physical condition;
2. A family member's mental or physical condition;
3. To care for a family member who presents a risk to the community because of exposure to a communicable disease;
4. To obtain medical care for the employee or a family member;
5. The closure of a business due to a public health emergency; or
6. The closure of a school or childcare center due to a public health emergency.

Expansion of Unemployment Insurance Coverage and Job Protection for Employees 

On March 19, 2020, Maryland Governor Larry Hogan passed the COVID-19 Public Health Emergency Protection Act of 2020 (“Act”), which expands unemployment insurance benefits and the options for employees upon termination. The Act will remain effective through April 30, 2021.  Specifically, the Act allows for an individual, who has not been terminated, to collect unemployment insurance benefits when:

1. The employer temporarily ceases operations due to COVID-19, preventing employees from coming to work;
2. The employee is quarantined due to COVID-19 with the expectation of returning to work after the quarantine is over; or
3. The employee leaves employment due to a risk of exposure or infection of COVID-19 or to care for a family member due to COVID-19.

Additionally, the Act prohibits employers from terminating an employee solely because the employee was required to be isolated or quarantined.

III.       Virginia:

On March 17, 2020, Virginia Governor Ralph Northam announced several measures to combat COVID-19 and support impacted works in Virginia.

Among these measures were the following expanded unemployment benefits for Virginians:  

1. The one-week waiting period for unemployment benefits will be waived, effective as of March 15, 2020; and
2. Individuals may be eligible to receive unemployment benefits if:
   • An employer temporarily closes or ceases operations for COVID-19 related reasons;
   • A worker has been issued a notice to self-quarantine by a medical or public health official and is not receiving paid sick or medical leave from their employer; or
   • A worker must care for a family member with COVID-19 and is not receiving paid sick or medical leave from their employer.

IV.       Next Steps for DMV Employers:

As state and local governments in the DMV area continue to respond to the COVID-19 crisis, we will provide updated guidance on these developments.

For now, employers in D.C., Maryland, and Virginia should quickly do the following:

• Confirm employee headcount, taking into account part-time employees and any planned layoffs, to determine which provisions of these laws apply;
• Think about drafting a stand-alone emergency sick leave policy that supplements your business’s existing policies; or otherwise update existing sick leave policies to incorporate any new sick leave rights;
• Prepare to account for the new sick leave entitlements from a financial/accounting perspective;
• Communicate the new provisions to employees who may be eligible for new types of expanded leave;
• Consider potential fluctuations in staffing levels in anticipation of employees taking advantage of these leave entitlements in the near future; and
• Be mindful of parallel or overlapping statutory leave requirements, including the new federal FFCRA leave entitlements.

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