DC EMPLOYMENT LAW ALERT

The New DC Paid Voting Leave Law

With many employers, particularly small businesses, in an existential crisis, now may seem an odd and insensitive time to mandate new paid leave. But the District Council has done just that in the Leave to Vote Amendment Act of 2020, which is now before Mayor Bowser for her signature. The new law mandates paid voting leave (PVL), although as noted below it is not certain when the law will take effect.

The substance of the law is as follows:

Upon the request of an employee, an employer shall provide the employee at least 2 hours of paid leave to vote in person in any election [in the District] ... or, if the employee is not eligible to vote in the District, in any election run by the jurisdiction in which the employee is eligible to vote; provided, that the employee would have been scheduled to work during the time for which the leave is requested.

Here are the need-to-know details:

• The new law applies to all employers in the District.
• All employees eligible to vote are entitled to take PVL. Effectively, only non-exempt workers will benefit from the new law because exempt employees received a fixed weekly salary regardless of hours worked.
• PVL is available only for employees who vote in person. As absentee and mail-in voting become more predominant, this new law will be of diminishing consequence. In fact, the District's Board of Elections recently emphasized that voting by mail is strongly encouraged to protect the public, staff, and election workers.
• Employers may not require employees to use accrued paid leave in lieu of PVL. This may serve as another impetus for District employers to review whether paid leave policies are overly generous already.
• The employee must request paid leave in advance. Employers may not deny requests. Employers presumably may specify by policy how and when requests must be submitted, and most employers already require employees to let them know if they cannot be at work as scheduled. Larger employers might waive the advance-request requirement altogether to prevent a horde of requests.
• Employers may designate which hours workers may take PVL. In fact, they may require that PVL be taken during early voting periods rather than on election day, and they may require workers to take PVL at the beginning or end of their normal workday.
• Two hours of PVL is available for "any election," so two hours is not an annual maximum.
• Employees who live in neighboring jurisdictions can request PVL to vote in elections in their jurisdiction.
• Employees are entitled to PVL only if they were scheduled to work at the time of an election. An employee who chooses to stop at a polling place before the normal workday begins has not taken any leave and would not be entitled to PVL.

The new law amends the District's election laws. It is not part of any other existing employment, leave, or paid leave laws; it is a stand-alone benefit.

It is unclear when the new law will take effect. If the Mayor signs the legislation, it could take effect before the next scheduled local election in the District on June 2. However, another provision in the law states that it does not apply until it has been funded.

The "boilerplate" provisions that show up in each new District employment law appear here. Employers must post another notice, and they are forbidden from retaliating against employees who exercise their PVL rights.

Like most new local employment laws, the new leave law leaves unanswered questions. Notably, the law does not indicate whether paid leave is available only if the employee requesting it actually votes. If an employee uses PVL time to take an extra long lunch or simply to get home earlier, is he or she still entitled to pay for the absence? It would have been an easy task for the Council to include a provision that employees are entitled to PVL only if they in fact vote during the two-hour window. Given the law's silence, and its sole purpose to encourage and enable voting, employers presumably may by policy specify that an absence will be paid only if the employee in fact votes. On the other hand, disciplining a worker based on suspicion that he or she did not vote runs the risk that the discipline will be viewed as retaliation for the request for leave.

If you have any questions about this new development, please contact us.

This summary is provided as an informational tool. It is not intended to be and should not be considered legal advice, and receipt of this information does not establish an attorney-client relationship.

Donn Meindertsma is a partner in the Washington, D.C. office of Conner & Winters. For more than 30 years, he has represented employers in the District of Columbia and elsewhere in defending against employment litigation and in providing counseling to clients on labor and employment law compliance and risk management. He is a member of the firm’s Labor and Employment Practice Group.

Last month we reported on a new local paid leave law ( DC Act 23-247) in response to the Covid-19 public health emergency. The Council recently passed a second law regarding paid leave, which amends the District's Accrued Sick and Safe Leave Act. The new legislation (DC Act 23-286) applies to employers with 50 to 499 employees and mandates paid leave to employees (who have been employed for at least 15 days) for the same reasons paid leave is available under the federal Families First Coronavirus Response Act.

This local leave is addition to new federal paid leave. However, the Act states that "[a]n employer may require that an employee exhaust any available leave under federal or District law or an employer's own policies prior to use of additional leave under this section."

Employers are not required under the new provision to provide leave for more than two full weeks of work (up to 80 hours for full time employees). If an employee uses all of the emergency paid leave available and subsequently informs the employer that he or she needs to continue to be absent, the employer must inform the employee of any paid or unpaid leave to which the employee may be entitled pursuant to federal law, other District law, or the employer's own policies.

The Act does not apply to a doctor's office, hospital, health care center, clinic, or other healthcare provider as defined in the Act.

Additional provisions in this new legislation govern when employees are to request paid leave and limit an employer's ability to request medical certification.

Of note is that the District did not change its tax laws to permit employers to recoup the costs of sick leave paid out under the new law, in contrast to the federal paid leave legislation responding to the Covid-19 crisis.