On February 1, 2021, DC Mayor Bowser signed emergency legislation passed by the DC Council, requiring DC employers to “adopt and implement social distancing and worker protection policies to prevent transmission of COVID-19 in the workplace” and that adhere to all applicable Mayor’s Orders related to the COVID-19 public health emergency. Titled the “Protecting Businesses and Workers from COVID-19 Congressional Review Emergency Amendment Act of 2021,” the Act was published in the DC Register on February 12, 2021 but took effect as of the Mayor’s signature and will remain in effect for up to 90 days. A companion bill (B24-0058), the “Workplace Safety During the COVID-19 Pandemic Emergency Amendment Act of 2021,” was passed by the Council and was transmitted to the Mayor on February 11, 2021; it has similar provisions and would replace—and have the effect of extending—the Congressional Review Emergency Amendment Act’s provisions.
The Mayor’s Orders applicable to workplace safety are published at https://coronavirus.dc.gov/phasetwo; the provisions that apply to an employer depend on the employer’s industry, office configurations, and whether members of the public are permitted to enter the work premises. For example, the Mayor’s Order 2020-80 requires individuals in the District to wear a mask when outside their residences and “when they are likely to come into contact with another person, such as being within six feet of another person for more than a fleeting time,” but it contains an exception for when the person “is in an enclosed office that no one else is permitted to enter.” The Order also requires employers to provide masks to their employees. If open to the public, businesses must post signage mandating mask wearing and must “exclude or attempt to eject persons who are not wearing masks or who remove their required masks.” The new legislation compels DC employers to ensure that the specifics of the Mayor’s applicable Orders are incorporated into their workplace safety policies and are implements. If the Mayor issues new Orders addressing workplace safety measures, employers will need to update their policies.
The Act also provides that employers may establish a workplace policy to require an employee to report to the employer a positive test for an active COVID-19 infection. On receiving such a report, employers may not disclose the name of an employee who has tested positive for COVID-19 except to the Department of Health or another District, state, or federal agency responsible for and engaged in contact tracing or the containment of community spread of COVID-19, or as otherwise required by law.
The Act requires employers to post a notice of employees’ rights under the Act once such publication of the notice is published by the Mayor’s office.
The Act prohibits retaliation against an employee for taking actions related to (1) complying with the requirements of a Mayor’s Order; (2) attempting to prevent or stop a violation of the requirements of the Mayor’s order; (3) submitting a complaint to the Mayor or the Attorney General pursuant to the Act; or (4) raising reasonable concerns about workplace health and safety practices to the employer, government agency, or the public.
The Act also establishes a rebuttable presumption that an employer who takes an adverse employment action within 30 days after an employee engages in protected activity took the action in retaliation for the employee’s protected activity. Under the Act, an “adverse employment action” means an action that an employer takes against an employee that is reasonably likely to deter the employee from attempting to secure any right or protection under the statute or to prevent or stop a violation of the statute, including a threat, verbal warning, written warning, reduction of work hours, suspension, termination, discharge, demotion, harassment, or material change in the terms or conditions of the employee's employment. However, it is not considered retaliation for an employer to bar an employee who has tested positive for COVID-19 from entering the workplace until a medical professional has cleared the employee to return to the workplace or until a period of quarantine recommended by the Department of Health (DOH) or the U.S. Centers for Disease Control (CDC) has elapsed.
Pursuant to the Act, employers are also prohibited from taking an adverse employment action against an employee who: (1) tested positive for COVID-19 (provided that the employee did not physically report to the workplace within two weeks after receiving a positive test result or during the timeframe recommended for quarantine by current DOH or CDC guidance); (2) had close contact with someone who has a confirmed case of COVID-19 or was exposed to someone experiencing COVID-19 symptoms; (3) needs to quarantine in accordance with CDC or DOH guidance; (4) is sick with COVID-19 symptoms and is waiting for a COVID-19 test result; or (5) is caring for someone who is sick with COVID-19 symptoms or who is quarantined in accordance with CDC or DOH guidance.
Amendment to the District of Columbia Unemployment Compensation Act
The companion bill, the “Workplace Safety During the COVID-19 Pandemic Emergency Amendment Act of 2021,” would also amend the District of Columbia Unemployment Compensation Act to specify that an employee who voluntarily quits work due to an unsafe workplace is eligible for unemployment benefits.
Enforcement by the Mayor and the Attorney General
The Mayor may enforce the Act by conducting investigations, holding hearings, and assessing penalties up to $1,000 per employee for an employer’s failure to adopt and implement social distancing and workplace protection policies and up to $2,000 per employee for violation of the Act’s anti-retaliation provisions.
The Attorney General also has authority to enforce the Act by conducting investigations, commencing civil actions, and, upon prevailing in an action, to collect reasonable attorneys’ fees and costs, impose statutory penalties, and seek payment of restitution for lost wages and equitable relief as may be appropriate.
Private Right of Action
Significantly, the Act also contains a provision authorizing a private right of action to enforce the Act, with remedies of reasonable attorneys’ fees and costs; payment of lost wages and benefits; equitable relief; and, if the employee’s injuries were caused by the employer’s wanton or reckless disregard for the safety of the affected employee, punitive damages. Given the rebuttable presumption that an adverse action taken within 30 days of an employee’s protected activity constitutes prohibited retaliation, employers should ensure that they have adequately confirmed and documented the legitimate business reasons for any proposed adverse employment action against employees who have raised workplace safety concerns or has missed work due to quarantine, COVID-19 illness, or caring for someone with COVID-19.