On November 18, 2021, D.C. Mayor Muriel Bowser signed the “COVID Vaccination Leave Emergency Amendment Act of 2021” into law. The Act amends the Accrued Sick and Safe Leave Act of 2008 and requires employers to provide paid leave to employees for the purposes of obtaining and recovering from the COVID-19 vaccine (D.C. Vaccine Leave). The Act will remain in effect until February 16, 2022.
Separately, the Act also extends the expanded D.C. Family Medical Leave program (D.C. PFL) for COVID-19 until February 16, 2022. For more information about D.C. FMLA please visit our blog post.
Employers with at least one employee in the District of Columbia.
Any employee who started working for the covered employer at least 15 days before the request for D.C. Vaccine Leave.
Qualifying Reasons for D.C. Vaccine Leave
D.C. Vaccine Leave includes two categories of leave. Employers must provide paid leave to employees for time spent obtaining and, if needed, recovering from side effects of a COVID-19 vaccine as follows:
- Vaccination injection leave for time taken from employment by an employee to recover, or for an employee to care for a child recovering, from side effects from a COVID-19 vaccination approved by the federal Food and Drug Administration (FDA), including a booster injection approved for the employee or child by the Centers for Disease Control and Prevention (CDC), which precludes the employee from performing his or her work; and
- Vaccination recovery leave for time taken to recover, or for an employee to care for a child recovering, from side effects from a COVID-19 vaccination approved by the FDA, including a booster injection approved for the employee or child by the CDC, which preclude an employee from performing their work.
For the purposes of the above leaves, “child” means a child under the age of 18 years who lives with an employee and for whom the employee permanently assumes and discharges parental responsibility or a foster child under the age of 18 years.
Amount of D.C. Vaccine Leave
Employers are required to provide up to two hours of paid leave for receiving an injection of the COVID-19 vaccine and up to eight hours of paid leave during the 24-hour period following their injection for recovery. D.C. employers must also permit employees to take vaccination leave or vaccination recovery leave to care for the employee’s child who receives the COVID-19 vaccine.
Employees are only entitled to up to 48 hours of paid vaccine leave (including recovery leave) in a year.
Rate of Pay
Employees must be paid at the employee’s regular rate of pay. If the employee does not have a regular rate of pay, the employee’s rate of pay is determined by dividing the employee’s total gross earnings by the number of hours the employee worked during that workweek.
An employer may require that an employee who uses D.C. Vaccine leave to provide reasonable documentation upon return to work of the need for leave, which may include a vaccination record or other documentation attesting to the date and time of the vaccination injection.
Employee Notice Requirement
An employer can require employees provide up to 48 hours’ notice prior to taking D.C. Vaccine Leave. However, in the case of an emergency, employees need only to provide reasonable notice.
Notice Posting Requirement
There is no notice posting requirement for D.C. Vaccine Leave, however, employers are encouraged to notify their D.C. employees about the availability of this leave for COVID-19 vaccine related purposes.
Interactions with Existing Policies
The D.C. Vaccine Leave is in addition to any other paid leave an employer provides an employee under an existing leave policy.
Interaction with Federal OSHA Emergency Temporary Standard
Federal OSHA has issued an Emergency Temporary Standard (ETS) requiring all employers with at least 100 employees to ensure their workers are fully vaccinated against COVID-19 or submit to weekly COVID-19 testing. On November 12, 2021, the U.S. Court of Appeals for the Fifth Circuit granted a motion to stay OSHA’s ETS and ordered that OSHA “take no steps to implement or enforce” the ETS “until further court order.” While OSHA remains confident in its authority to protect workers in emergencies, OSHA has announced that it has suspended activities related to the implementation and enforcement of the ETS pending future developments in the litigation. This is a dynamic issue and employers are encouraged to consult with counsel to determine their continued approach to the ETS. For more information about this requirement please visit our blog post.
In the event the stay is lifted on the ETS, covered employers will be required to provide up to four hours of paid time to receive each primary dose of the COVID-19 vaccine, and reasonable paid time for sick leave for side effects. This means that D.C. employers that are also covered employers under the ETS, will need to provide employees four hours of paid time per vaccination and possibly more than eight hours to recover from the side effects under the D.C. Vaccine Leave requirements.
Employers are encouraged to review and update their policies and procedures related to COVID-19 related vaccine leave, as necessary, for their D.C. based employees.
- COVID Vaccination Leave Emergency Amendment Act of 2021
- Sequoia Forewords: