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Families First Coronavirus Response Act

On March 18, the federal Families First Coronavirus Response Act (“FFCRA”) became law.  The FFCRA includes two components regarding employee leave: the Emergency Paid Sick Leave Act (“EPSLA”) and the Emergency Family and Medical Leave Expansion Act (“EFMLEA”).  In the District of Columbia, the FFCRA is in addition to the COVID-19 Response Emergency Amendment Act, which establishes additional employment protections that apply to all D.C. employers and employees.

When will the EPSLA and EFMLEA apply?

  • The requirements will apply from April 1, 2020 to December 31, 2020.

Which employers are covered?

  • The FFCRA applies to private employers with fewer than 500 employees.

Which employees are eligible?

  • All employees are eligible for leave under the EPSLA.  Employees who have been employed for at least 30 calendar days are eligible for leave under the EFMLEA.

What are the Qualifying Reasons for leave?

  • An employer must provide each employee paid sick leave if an employee is unable to work or telework because the employee:
  1. Is subject to a government quarantine or isolation order related to COVID-19;
  2. Has been advised by a healthcare provider to self-quarantine;
  3. Is experiencing symptoms of COVID-19 and is seeking a medical diagnosis;
  4. Is caring for an individual who is subject to a government quarantine or isolation order, or has been advised by a healthcare provider to self-quarantine, related to COVID-19;
  5. Is caring for a son or daughter of the employee if the child’s school has been closed, or the childcare provider is unavailable, due to COVID-19 precautions, under the EPSLA, or due to a COVID-19 emergency declaration, under the EFMLEA; or
  6. Is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services.

What is the duration of leave?

  • Employees are entitled to up to two weeks, or 80 hours, of paid leave for any Qualifying Reason under the EPSLA. For Qualifying Reason No. 5, employees are entitled to up to 10 weeks of additional paid leave under the EFMLEA.

How is the paid leave calculated?

  • For Qualifying Reasons 1, 2, and 3, employees are entitled to pay at the regular rate or the applicable minimum wage, whichever is greater, up to $511 per day or $5,110 in aggregate.
  • For Qualifying Reasons 4 and 6, employees are entitled to pay at two-thirds the regular rate or the applicable minimum wage, whichever is greater, up to $200 per day or $2,000 in aggregate under the EPSLA.
  • For Qualifying Reason 5, employees are entitled to pay at two-thirds the regular rate or the applicable minimum wage, whichever is greater, up to $200 per day or $2,000 in aggregate under the EPSLA and up to $200 per day or $10,000 in aggregate under the EFMLEA.

Part-Time Employees: The calculation is based on the number of hours the employee would normally be scheduled to work.

Are there notice requirements?

  • By Employer: Each employer must post in conspicuous places on the premises a notice of FFCRA requirements. The Secretary of Labor has published a model notice.
  • By Employee: Where the need for EFMLEA leave is reasonably foreseeable, an employee must provide the employer with notice of leave as is practicable.

What is the relationship to other leave programs?

  • The EPSLA does not diminish rights or benefits to which an employee is entitled under any other law, collective bargaining agreement, or employer policy.  An employee may not be required to take other paid leave provided by the employer before taking EPSLA leave.
  • The first 10 days of EFMLEA leave may be unpaid.  An employee may elect to substitute any available paid leave, including EPSLA leave, during this time.

D.C. Note: Each D.C. employer must provide Declaration-of-Emergency Leave (“DOE Leave”) to each employee who is unable to work as a result of the circumstances giving rise to the COVID-19 public emergency, during the emergency period.  DOE Leave may be unpaid.

Is there assistance for employers to pay for required leave?

  • Employers required to provide paid leave under the FFCRA may receive a tax credit equal to 100% of qualified EPSLA wages, EFMLEA wages, and qualified health plan expenses paid each calendar quarter.

Is there flexibility for small employers?

  • The Secretary of Labor may issue regulations for good cause to exempt employers with fewer than 50 employees from the leave requirements if the imposition of the requirements would jeopardize the viability of the business as a going concern.  The Department of Labor has stated that it will be establishing criteria for this exemption in forthcoming regulations.
  • If an employee takes any of the additional 10 weeks of EFMLEA, an employer with fewer than 25 employees is not subject to the requirement to restore the employee to their position on return under the following conditions:
    • (1) the position no longer exists due to economic or changed operating conditions that affect employment and are caused by a COVID-19 emergency,
    • (2) the employer makes reasonable efforts to restore the employee to an equivalent position, and
    • (3) if reasonable efforts fail, the employer makes reasonable efforts to restore the employee within one year the date the qualifying need concludes, or 12 weeks after the date the employee’s leave commences, whichever first occurs.

This material is for informational purposes only and should not be relied on for legal advice.  For legal assistance with an employment or business matter, contact our Firm through the “Contact Us” page on our website, or calling us at 202-795-9999. 

Mayor’s Order on the Closure of Non-Essential Businesses

On March 24, 2020, Mayor Muriel Bowser issued a Mayor’s Order (“Order”) requiring non-essential businesses in the District of Columbia to close by 10 pm on March 25, 2020 through April 24, 2020 in response to the COVID-19 public health emergency. The Order defines non-essential and essential businesses in detail and specifies conditions under which all businesses may continue operations. It also prohibits large gatherings of 10 or more persons and requires essential government functions to continue.

 

Requirements for All Businesses

  • All businesses may continue telework operations so long as they comply with social distancing requirements.
    • Social distancing requirements include individuals:
      • Maintaining at least six feet distance from each other
      • Frequently washing or sanitizing hands to the greatest extent feasible
      • Covering coughs or sneezes with a tissue, sleeve, or elbow
      • Regularly cleaning high-touch surfaces
      • Not shaking hands
  • All businesses must take all reasonable steps necessary for employees to work and deliver services remotely.
  • Large gatherings of 10 or more persons are prohibited.

Requirements for Non-Essential Businesses

  • All non-essential businesses in the District of Columbia, except essential businesses, must cease activities in the District, except for minimum basic operations by March 25, 2020 at 10 pm through April 24, 2020.
    • Minimum basic operations are the minimum necessary activities to:
      • Maintain the value of inventory, ensure security, process payroll and benefits, and related functions
      • Facilitate remote working
      • Facilitate teleworking or remote service delivery, cleaning and disinfection of facilities, and supervision of contractors or employees providing essential maintenance of a facility.
  • Non-essential businesses include:
    • Tour guides and touring services
    • Gyms
    • Health Clubs, spas, and massage establishments
    • Theaters
    • Auditoriums and other places of large gatherings
    • Nightclubs
    • Hair, nail, and tanning salons and barbershops
    • Tattoo parlors
    • Sales not involved in essential services
    • Retail clothing stores
    • Professional services not devoted to assisting essential business operations

Requirements for Essential Businesses

  • All essential businesses are strongly encouraged to remain open.
  • Essential businesses that remain open must comply with social distancing requirements to the greatest extent feasible.
    • Additional social distancing requirements for essential businesses include separating staff by off-setting shift hours or days and maintaining at least six feet among and between employees and the public, including individuals waiting in line or a waiting room.
    • An individual who is suspected or confirmed to have COVID-19 or any other transmissible infectious disease, or cold or influenza symptoms, may not conduct essential business activities.
  • Essential businesses are:
    • Health and public health operations
    • Hospitals, clinics, dentists, pharmacies, pharmaceutical and biotechnology companies, other healthcare facilities, healthcare suppliers, home healthcare and assisted living services, mental health providers, medical marijuana dispensaries, calibrators and operators of medical equipment, or any related and/or ancillary healthcare facilities as defined by the federal Department of Homeland Security
    • Veterinary care and all healthcare services provided to animals
    • This authorization must be construed broadly to avoid any impediments to healthcare delivery.
  • Essential infrastructure
    • Public works, such as roads, sidewalks, street lighting, traffic control devices, railways, and government facilities
    • Utilities, such as electricity, gas, telecommunications, water and wastewater, and drainage infrastructure, and solid waste collection and removal by private and public entities
  • Food and household products and services
    • Grocery stores, supermarkets, licensed farmers’ markets, food banks, convenience stores, liquor stores, and other establishments in the retail, wholesale supply or distribution of food products, alcohol, any other household consumer products, laundromats, dry cleaners, laundry service providers, and medical marijuana cultivation centers, including store that sells groceries and also other non-grocery products that sell products necessary to maintain the safety, sanitation, and operation of residences
    • Restaurants, food trucks, other facilities that prepare and serve food on site, for delivery, carryout, or grab-and-go
    • Schools, senior centers, and other entities that typically provide free food services, on a pickup and takeaway basis
    • Food shall not be permitted to be eaten on-site or in a self-serve manner
  • Social services providing for the necessities of life
    • Businesses and organizations that provide food and food preparation, shelter and social services, and other necessities of life for economically disadvantaged or otherwise needy individuals, and organizations or components of organizations that process eligibility for such services
  • Communications and information technology
    • Newspapers, television, radio, and other media services and engineers, technicians and associated personnel responsible for communications and information technology construction and restoration
  • Energy and automotive
    • Businesses that maintain, ensure, or restore, or are otherwise involved in the electricity industry, or petroleum, natural, or propane gas, including gas stations, auto repair/mechanic shops, auto supply stores, and related facilities
  • Financial services
    • Banks, credit unions, and related financial institutions
  • Education institutions
    • Public and private K-12 schools, colleges, and universities, solely for the purpose of facilitating distance learning and operations, or modifying facilities to provide support for addressing COVID-19 or the public emergencies
  • Transportation and logistics
    • Businesses that ship or deliver groceries, food, goods, or services to residents
    • Taxis, ridesharing companies, and other private transportation providers providing transportation necessary for essential businesses, essential government functions, or other purposes expressly authorized in the Mayor’s Order
    • Businesses providing mailing and shipping services, including post office boxes and moving companies
    • Bicycle sales, management, and repair
  • Construction and building trades
    • Plumbers, pipefitters, steamfitters, electricians, boilermakers, exterminators, roofers, carpenters, bricklayers, elevator mechanics
    • Businesses that sell supplies and materials for commercial and residential homes, including “big box” supply stores, plumbing distributors, electrical distributors, and HVAC distributors
    • Other businesses that provide services that are necessary to maintaining the safety, sanitation, and operation of residences and essential businesses
  • Housing and living facilities
    • Residences and residential facilities
    • Group housing and shelters
    • University housing
    • Hotels, except as to conference facilities, ballrooms, and dining-in facilities of their restaurants
    • Animal shelters
  • Professional services
    • Legal, insurance, notary public, tax preparation and accounting services, but only when necessary to assist in compliance with legally mandated activities, essential business, or essential governmental functions
    • Childcare facilities prioritizing services for children of essential employees to the extent possible and in compliance with OSSE guidance

Large Gatherings

  • A large gathering is any event that brings together or is likely to bring together 10 or more persons at the same time in a single confined or enclosed indoor or outdoor space, including an enclosed outdoor space where people are present and are within six feet of one another for an extended period.
  • A large gathering does not include:
    • Essential businesses and groups performing essential government functions
    • Gatherings of people in multiple, separate enclosed spaces in a single building, so long as 10 people are not present in any single space at the same time.
    • The use of enclosed space by 10 or more people who are present at different times during the day
    • Gatherings on federal government property
    • Spaces where persons may be in transit or waiting for transit, or shopping areas associated with those buildings
    • Office space, hotels, or residential buildings, except for conferences or large gatherings at hotels

Essential Government Functions

  • Essential government functions must continue.
  • Essential government functions include:
    • First responders
    • Law enforcement functions
    • Services needed to ensure the continuing operation of government agencies and provide for the health, safety, and welfare of the public performed by the federal or D.C. government or their contractors
    • District of Columbia courts, which should determine what services are needed to continue essential services.
    • Intergovernmental commissions and entities performing such functions, including judicial and elections functions

Enforcement and Waivers

  • Any individual or entity that knowingly violates the Mayor’s Order shall be subject to all civil, criminal, and administrative penalties authorized by law.
  • The Mayor may grant a waiver to a business or nonprofit through the Homeland Security and Emergency Management Agency.

This material is for informational purposes only and should not be relied on for legal advice.  For legal assistance with an employment or business matter, contact our Firm through the “Contact Us” page on our website, or calling us at 202-795-9999. 

COVID-19 Response Emergency Amendment Act Section-by-Section Summary

On March 17, the Council of the District of Columbia adopted the COVID-19 Response Emergency Amendment Act of 2020 (“Emergency Act”). The Emergency Act, among other things, provides temporary protections for workers, relief for businesses, and authority and flexibility for the District government during periods of public and public health emergencies, which Mayor Muriel Bowser declared on March 11. The Council is expected to take additional action to respond to the emergency at its next scheduled meeting on April 7.

TITLE I: LABOR AND WORKFORCE PROTECTIONS

Section 101: Wage Replacement for Affected Employees

  • “Affected employees” are those who have become unemployed due to the public health emergency, such as quarantine, ceased or reduced employer operations, or reduction in revenue.
  • “Affected employees” are eligible for unemployment compensation regardless of whether their employer has provided a date certain for the employee to return to work or whether the employee has a reasonable expectation of continued employment with the current employer.
  • Benefits paid to affected employees will not be charged against the employer’s experience rating account.

Section 101: Employment Protections

  • Under the D.C. Family and Medical Leave Act, the one-year employment and 1,000-hour work requirements do not apply to an employee who has been ordered or recommended to quarantine or isolate.
  • An employee who is unable to work as a result of the emergency is entitled to Declaration-of-Emergency (DOE) Leave.
  • A recommendation from the federal or District government or medical professional to quarantine or isolate shall serve as certification for the leave.
  • DOE leave applies to all employers regardless of the number of employees.

 

TITLE II: BUSINESS RELIEF

Section 201: Delayed Hotel Property and General Sales Tax Remittances

  • The deadline to pay the first installment of property taxes for hotel property is extended to June 30, 2020.
  • The deadline for businesses, except hotels and motels permitted to defer property tax, to pay sales and use tax for periods ending in February and March is extended to July 20, 2020.

Section 202: Public Health Emergency Small Business Grant Program

  • The Mayor may issue grants to “eligible small businesses” that demonstrate financial distress caused by the emergency for employee wages and benefits, operating costs, and repayment of federal Small Business Administration loans.
  • “Eligible small businesses” are those eligible for Small Business Enterprise (“SBE”) certification by the Department of Small and Local Business Development (“DSLBD”), nonprofit entities, and independent contractors and self-employed individuals that are ineligible for unemployment insurance.
  • A business is eligible for SBE certification if it is: (1) a Local Business Enterprise, (2) independently owned and operated, and (3) is either a small business concern under the federal Small Business Act or has average annualized gross receipts within limits set by DSLBD. More information on certification eligibility is available through DSLBD.

Section 203: Restaurant Delivery

  • Registered restaurants and taverns may sell beer or wine in closed containers for carryout or for delivery to the homes of District residents, so long as the order includes prepared food items and the restaurant or tavern has received written authorization from the Alcoholic Beverage Regulation Administration (“ABRA”).

Section 204: Corporate Filing Extension

  • The deadline for business entities to file the first biennial report for 2020 with the Department of Consumer and Regulatory Affairs (“DCRA”) has been extended to June 1, 2020 from April 1, 2020.

TITLE III: PUBLIC HEALTH, SAFETY, AND CONSUMER PROTECTION

Section 301: Amendments to the District of Columbia Public Emergency Act

  • The Mayor may enter into emergency procurements subsequent to Council notice, waive application of laws administered by the Department of Insurance, Securities, and Banking (“DISB”), and exercise personnel flexibility.
  • The Mayor may extend the current emergency declarations by 30 days and then in 15-day periods thereafter.
  • The Mayor may revoke, suspend, or limit the license, permit, or certificate of occupancy of a person or entity that violates an emergency executive order.

Section 302: Amendments to the Department of Insurance and Securities Regulation Establishment Act

  • The DISB Commissioner may issue emergency rulemakings, orders, or bulletins applying to regulated entities to address, among other issues, the submission of claims, grace periods for payment, and temporary postponement of cancellations, nonrenewals, or premium increases.

Section 303: Public Benefits Extension and Continued Access

  • The Mayor may extend the eligibility period for individuals receiving benefits, extend the timeframe for determinations of new applications, and take other actions as appropriate to support continuity of, and access to, any public benefit program until 60 days after the end of the public health emergency.

Section 304: Price Gouging and Stockpiling

  • It is unlawful for an entity or individual to charge more than the normal average retail price for any merchandise or service.
  • It is unlawful for an entity or individual to purchase goods designated by the federal or D.C. government as necessary, in quantities greater than those specified by the federal or D.C. government.

Section 305: Disconnection of Electric Service

  • An electric company may not disconnect service for nonpayment during a public health emergency or for 15 calendar days thereafter.

Section 306: Disconnection of Gas Service

  • A gas company may not disconnect service for nonpayment during a public health emergency or for 15 calendar days thereafter.

Section 307: Disconnection of Water Service

  • No water supply may be shut off for nonpayment during a public health emergency or for 15 calendar days thereafter.

Section 308: Eviction Prohibition

  • The time for service of a summons in a proceeding for restitution of possession is tolled, effectively prohibiting the initiation of eviction proceedings against commercial and residential tenants.
  • A housing provider may not evict a tenant.
  • Note: By the March 15 Order of the Chief Judge of the D.C. Superior Court, all evictions of commercial and residential tenants on or before May 1 are stayed, and all hearings in the Landlord and Tenant Branch are continued until new dates are set.

Section 309: Prescription Drugs

  • A licensed D.C. pharmacist may dispense a refill prior to the expiration of the waiting period.

Section 310: Extension of Licenses and Registrations; Waiver of Deadlines

  • Within 45 days of the end of a public health emergency, the Mayor may:
    • Extend the validity of a license, registration, permit, or authorization;
    • Waive deadlines for filings and fees associated with the failure to timely renew or submit; or
    • Extend or waive the deadline by which action is required by the executive branch, or by which approval or disapproval is deemed to have occurred based on inaction by the executive branch.

Section 311: Homeless Services

  • Contingency provisions for the Homeless Services Reform Act are established.

Section 312: Residential Tenants Rights

  • Deadlines for tenants and tenant organizations to exercise Tenant Opportunity to Purchase Act and Rental Housing Act rights are extended to 30 days after the end of the emergency period.
  • A housing provider may not impose a late fee on a tenant.

Section 313: Good Time Credits

  • The Department of Corrections may award additional good time credits to effectuate the immediate release of persons sentenced for misdemeanors, consistent with public safety.

Section 314: United Medical Center

  • The Fiscal Management Board trigger for the Not-for-Profit Hospital Corporation for Fiscal Year 2020 is removed.

TITLE IV: EDUCATION

Section 401: Amendments to the Student Promotion Act

  • The Chancellor may waive requirements to attend summer school for a student who fails to meet promotion criteria.

Section 402: Amendments to the Education Research Practice Partnership Establishment and Audit Act

  • The meeting of the education research practice partnership review panel is postponed until 7 business days after the end of the emergency.

TITLE V: PUBLIC MEETINGS

Section 501: Advisory Neighborhood Commission Meetings

  • Advisory neighborhood commissions are not required to meet, and they may meet remotely.

Section 502: Other Boards and Commissions

  • The requirement for boards, commissions, and public bodies to meet is waived, unless the Mayor determines it is necessary or appropriate to meet.
  • The review period for nominations transmitted to the Council is tolled.

Section 503: Freedom of Information Act (“FOIA”)

  • The time to respond to a FOIA request is tolled.

Section 504: Amendments to Open Meetings Act

  • An agency may comply with open meetings requirements by allowing the public to view or hear a meeting live or as soon as reasonably practicable thereafter.

TITLE VI: COUNCIL AUTHORITY

Section 601: Budget

  • The deadline for the Mayor to submit the fiscal year 2021 budget to the Council is moved to May 6, 2020.

Section 602: Virtual Meetings

  • The Council may meet virtually.

Section 603: Grant Budget Modifications

  • Grant budget modifications received by the Council as of March 17, 2020 are deemed approved.

 

This material is for informational purposes only and should not be relied on for legal advice.  For legal assistance with an employment or business matter, contact our Firm through the “Contact Us” page on our website, or calling us at 202-795-9999. 

COVID-19 Emergency Relief for D.C. Businesses and Employees

On March 17, 2020, the Council of the District of Columbia adopted the COVID-19 Response Emergency Amendment Act of 2020 (“Emergency Act”).  The Emergency Act, among other things, provides relief for D.C. employees and businesses during periods of public and public health emergencies, which Mayor Muriel Bowser declared on March 11.

Unemployment Compensation.  Affected employees are eligible for unemployment compensation regardless of whether their employer has provided a date certain for the employee to return to work or whether the employee has a reasonable expectation of continued employment with the current employer.  Benefits paid to affected employees will not be charged against the employer’s experience rating account.  Affected employees are those who have become unemployed due to the public health emergency, such as quarantine, ceased or reduced employer operations, or reduction in revenue.

Family and Medical Leave.  The one-year employment and 1,000-hour work requirements do not apply to an employee who has been ordered or recommended to quarantine.  An employee who is unable to work as a result of the emergency is entitled to Declaration-of-Emergency (DOE) Leave.  A recommendation from the federal or District government or medical professional to quarantine shall serve as certification for the leave.  DOE Leave applies to all employers regardless of the number of employees.

Sales Tax Payment Relief.  The deadline for businesses, except hotels, to pay sales tax for periods ending in February and March is extended to July 20, 2020.

Small Business Grants.  The Department of Small and Local Business Development (DSLBD) may issue grants to eligible small businesses that demonstrate financial distress caused by the emergency for employee wages and benefits, operating costs, and repayment of federal Small Business Administration loans.

Biennial Reports.  The deadline for business entities to file the first biennial report for 2020 with the Department of Consumer and Regulatory Affairs (DCRA) has been extended to June 1, 2020 from April 1, 2020.

Council Chair Phil Mendelson stated that this is the first of several legislative measures to respond to this fast-moving situation.  We will continue to monitor the District’s response.

 

This material is for informational purposes only and should not be relied on for legal advice.  For legal assistance with an employment or business matter, contact our Firm through the “Contact Us” page on our website, or call us at 202-795-9999. 

Overview of the Fair Credit Reporting Act

The Fair Credit Reporting Act (“FCRA”), promotes the accuracy, fairness, and privacy of information in the files of consumer reporting agencies.  The law’s intent is to protect consumers from the willful or negligent inclusion of inaccurate information in their credit report.  FCRA regulates the collection, dissemination and use of consumer information. Download this slideshow to learn more about employers’ and employees’ rights and responsibilities under the FCRA.

This material is for informational purposes only and should not be relied on for legal advice.  For legal assistance with an employment matter, contact our Firm through the “Contact Us” page on our website, or call us at 202-795-9999.