The District of Columbia’s New COVID-19 Workplace Safety Requirements

Josh SchmandJosh Schmand

In February, in a continued effort to protect workers in the District of Columbia and to prevent the spread of COVID-19, the D.C. Council passed the Workplace Safety During the COVID-19 Pandemic Emergency Declaration Resolution of 2021. The Workplace Safety Resolution repeals, updates, and expands the previous Protecting Businesses and Workers from COVID-19 Temporary Amendment Act of 2020 and the Protecting Businesses and Workers from COVID-19 Congressional Review Emergency Amendment Act of 2021.

Employer Policy Requirements

Previously, employers in the District had to comply with the Mayor’s mask orders, but not other orders pertinent and critical to workplace safety that address social distancing, personal protective equipment (PPE), or other such measures. Effective immediately, the Workplace Safety Resolution requires D.C. employers to adopt and implement social distancing and workplace protection policies to prevent the transmission of COVID-19 in the workplace.

While “workplace” means any physical structure or space where an employee performs work, it does not include the home or other location where an employee teleworks that is not subject to the employer’s control. For the Workplace Safety Resolution to apply, the employer must maintain control of the physical structure or space.

The Mayor may publish a notice of the relevant portions of the Workplace Safety Resolution, and if/when that happens, employers will have to post the notice in a conspicuous location in the workplace in English and any other language spoken by at least 10% of employees.

Employer Reporting Requirements

D.C.’s Workplace Safety Resolution requires employers to report instances of their employees contracting COVID-19 in the course of and within the scope of their employment, or whose contact with others in the course of and within the scope of their employment makes the contracting of COVID-19 probable, to the Mayor. Reports can be made here, and additional guidance on when to report can be found here.

Employers in D.C. may require their employees to report a positive test for COVID-19, but the Workplace Safety Resolution prohibits employers from disclosing the identity of their employees who test positive, except to the Department of Health (DOH) or as otherwise required by law.

Additionally, employers must cooperate with contact tracers, including by providing information about employees who were in close proximity to infected employees and by providing customer lists and contact information as requested.

Employee Protections

The Workplace Safety Resolution prohibits employers from retaliating or taking adverse employment actions against employees for:

  • Complying, or attempting to comply, with the requirements of a Mayor’s Order related to the public health emergency;
  • Reasonably attempting to prevent or stop a violation of a Mayor’s Order related to the public health emergency;
  • Submitting a complaint to the Mayor or the Attorney General about a violation of the Workplace Safety Resolution;
  • Raising reasonable concerns about workplace health and safety practices related to COVID-19; or
  • Testing positive for COVID-19, having close contact with someone with COVID-19 or experiencing symptoms, needing to quarantine in accordance with DOH or U.S. Centers for Disease Control and Prevention (CDC) guidance, experiencing COVID-19 symptoms and awaiting a test result, or caring for someone who is sick with COVID-19 symptoms, provided that the employee did not physically report to the workplace within appropriate timeframe recommended by current DOH or CDC guidance.

Prohibited adverse employment actions include a threat, verbal warning, written warning, reduction of work hours, suspension, termination, discharge, demotion, harassment, material change in the terms or conditions of the employee’s employment, or any other action that is reasonably likely to deter the employee from receiving the protections of the Workplace Safety Resolution.

Additionally, employers may not prohibit or discourage employees from using PPE or require employees to sign an agreement or comply with a workplace policy that would limit or prevent their right to disclose information about the employer’s workplace health or safety practices or hazards related to COVID-19.

Enforcement and Penalties

Both D.C.’s Mayor and Attorney General may receive and investigate complaints against employers who violate the Workplace Safety Resolution, to institute administrative or civil actions on behalf of the District against employers, and assess civil penalties. The Mayor’s office may post on the District’s Coronavirus website the name of each business for which a violation was found and a statement of the penalty imposed.

The Mayor may impose civil fines up to $1,000 per violation per employee per day for each violation of the policy and reporting requirements, and up to $2,000 per violation of the prohibited retaliation protections. The Attorney General, upon prevailing in an action against an employer, may recover up to the maximum amount of the civil fines for such violation, as well as (1) attorneys’ fees and costs, (2) restitution for lost wages, for the benefit of the aggrieved employees, and (3) other equitable relief as is necessary and appropriate.

In addition to the Mayor and the Attorney General, the Workplace Safety Resolution creates a private cause of action for violations of the prohibited retaliation protections. This means that employees may bring their own lawsuit against their employer, and, if successful, will be entitled to recover (1) attorneys’ fees and costs, (2) restitution for lost wages, (3) other equitable relief as is appropriate, and (4) punitive damages, if the employer acted with wanton or reckless disregard for the safety of the affected employee. And, unlike other employee claims against employers, under the Workplace Safety Resolution, employees need not exhaust administrative remedies before bringing suit.

PPE, Unemployment, and Workers’ Compensation

The Workplace Safety Resolution also addresses employer eligibility for grants for purchase or reimbursement of PPE, authorizes unemployment compensation for employees who voluntarily leave work due to an unsafe workplace condition, and extends workers’ compensation coverage to employees who contract COVID-19 in the course of and within the scope of their employment.

Takeaways

Employers in D.C. that have not already developed and implemented COVID-19 workplace protection policies need to do so without further delay. And, for those employers who already brought their policies, practices, and procedures into compliance with the prior workplace safety Acts, they now have to review and revise them to ensure compliance with the new Workplace Safety Resolution.

For more information, contact Josh at 301-347-1273 or jcschmand@lerchearly.com.

D.C. Passes Ban on Non-Compete Agreements

Josh SchmandJosh Schmand

On December 15, 2020, the District of Columbia Council unanimously passed the Ban On Non-compete Agreements Amendment Act Of 2020. The Act generally prohibits the use of non-compete provisions in employment agreements and workplace policies. The Act will soon become law as D.C. Mayor Muriel Bowser is likely to sign the Act and Congress is unlikely to pass a joint resolution of disapproval.

The ban on non-competes in the Act will apply to all employers in the District and nearly any employee working in the District regardless of how much they are earning. Employers will also have to provide written notice of the Act to all of their employees.

What is a non-compete agreement?

Under the Act, a “non-compete provision” is a written agreement between an employer operating in the District and any individual who performs work (or who an employer reasonably anticipates will perform work) in the District that prohibits the individual from: (1) being simultaneously or subsequently employed by another person, (2) performing work or providing services for pay for another person, or (3) operating the individual’s own business.

The Act does not apply to otherwise lawful provisions that restrict an individual from disclosing their employer’s confidential, proprietary, or sensitive information, client list, customer list, or trade secrets. The Act also does not apply to otherwise lawful provisions contained within or executed contemporaneously with an agreement between the buyer and seller of a business where the seller agrees not to compete with the buyer’s business.

The Act does not address solicitation of employees or customers, so employers should review non-solicitation agreements with counsel to ensure compliance.

What does the Act prohibit?

Under the Act, no employer in the District of Columbia may require or request that an employee performing work in the District (or who an employer reasonably anticipates will perform such work) sign an agreement that includes a non-compete provision. Additionally, no employer in D.C. may have a workplace policy that similarly prohibits an employee from: (1) being employed by another person, (2) performing work or providing services for pay for another person, or (3) operating the individual’s own business. Any such agreements entered into after the Act becomes law will be void and unenforceable in court.

The Act also prohibits employers from retaliating (or threatening to retaliate) against employees for: (1) refusing to agree to a non-compete provision, (2) failing to comply with a non-compete provision or workplace policy made unlawful by the Act, (3) asking, informing, or complaining to an employer, a coworker, a lawyer, or governmental entity about the existence, applicability, or validity of a non-compete provision or a workplace policy that the employee reasonably believes is prohibited by the Act, or (4) requesting information that the Act requires be provided from an employer.

Are there any exceptions?

The ban on non-competes in the Act do not apply to:

  1. The District of Columbia government or the United States government;
  2. Volunteers engaging in the activities of an educational, charitable, religious, or nonprofit organization;
  3. Lay members elected or appointed to office within the discipline of any religious organization and engaged in religious functions;
  4. Individuals employed as a casual babysitter in the residence of their employer; and
  5. Licensed physicians that perform work on behalf of an employer engaged primarily in the delivery of medical services earning at least $250,000 per year.*

* Employers seeking to have medical specialists sign a non-compete agreement must provide the document to the employee for review at least 14 days before executing the agreement along with written notice of the Act.

Are there notice requirements?

Employers must provide their employees with the following text: “No employer operating in the District of Columbia may request or require any employee working in the District of Columbia to agree to a non-compete policy or agreement, in accordance with the Ban on Non-Compete Agreements Amendment Act of 2020.”

Employers must provide existing employees with this notice, in writing, within 90 days after the Act becomes law. Going forward, employers have seven days after an individual becomes an employee to provide the required written notice. And, employers have 14 days to provide the notice in response to a written request from an employee.

What are the penalties?

In addition to having a non-compete provision becoming void and unenforceable in court, employees who are asked to sign a non-compete agreement banned by the Act or who suffer retaliation from an employer for activities prohibited by the Act may file a complaint with the Mayor or take action in civil court.

The Mayor may assess administrative penalties of $350 to $1,000 for each violation, except that penalties for retaliation against employees shall be greater than $1,000. The Mayor and the Office of the Attorney General (OAG) may also require employers to submit records showing compliance with the Act upon demand at any reasonable time.

Employers that violate the Act shall be liable for relief payable to each employee of $500 to $1,000 for each violation, and at least $3,000 to each employee for subsequent violations. But, employers that attempt to enforce newly void or unenforceable non-compete provisions shall be liable for relief payable to each employee of at least $1,500, and at least $3,000 to each employee for subsequent violations. And, employers that retaliate against employees in violation of the Act shall be liable for relief payable to each employee of $1,000 to $2,500 for each violation, and at least $3,000 to each employee for subsequent violations.

How does the Act compare to Maryland and Virginia’s restrictions?

The original proposal of the legislation introduced in October 2019 prohibited the use of non-compete agreements for employees whose rate of pay was less than or equal to three times the minimum wage, similar to the restrictions in neighboring Virginia and Maryland, which have prohibited non-compete agreements for certain “low” wage earners. However, as discussed above, if the Act becomes law, it will expand the ban to nearly any employee in the District and become one of the Nation’s strictest laws concerning bans on non-compete agreements.

For more information, contact Josh at 301-347-1273 or jcschmand@lerchearly.com.

Voluntary Acceptance of a Transfer May Waive Employees’ Claims in Maryland and Virginia

Recognition of “Constructive Demotion” Claims Seems Imminent.

Lauri ClearyLauri Cleary

In October, the Fourth Circuit Court of Appeals confirmed in Laird v. Fairfax County, Virginia, that an employee voluntarily accepting a lateral transfer to another position (there, to settle a disability discrimination claim) may not be able to establish discrimination or retaliation just because the new job is not all she had hoped.

To make out a viable claim, the employee must suffer an “adverse employment action” such that the transfer resulted in “a significant detriment” to the employee. Whether an employee’s dissatisfaction rises to the level of “significant detriment” is a factual issue determined on a case-by-case basis.

A transfer must cause a “significant detriment” to be actionable

After working in the new position for some months, Ms. Laird came to believe she had been demoted. She found her new position “boring” and to be a “thinkless job, just data entry,” and hurt her potential for future promotion.

She sued the County for discrimination and retaliation under the Americans with Disabilities Act. The federal trial judge in Alexandria entered judgment against her, finding her disappointment, however genuine, was not significant enough to establish a significant detriment.

After reviewing all facts anew, the Fourth Circuit Court of Appeals agreed. Offering no real guidance on what establishes a “significant detriment,” the Court of Appeals discussed what does not. In her new job, Ms. Laird received the same compensation, asked for and received changes to the new title and duties, and received additional accommodations of her disability.

The Court noted near the end of its opinion that she had abandoned her argument that intolerable discriminatory conditions in her original job had compelled her to accept a transfer—in essence that she was forced to accept a demotion. Having waived that argument, she could no longer claim that the transfer itself had been discriminatory or retaliatory.

A transfer that is not “voluntary” may be a “constructive demotion”

Had she not abandoned her “constructive demotion” argument, Ms. Laird may have prevailed by claiming acceptance of the transfer had not been “voluntary.”

The majority did not address that potential, but a member of the three-judge panel did in a concurrence. Observing that the DC Circuit (and every other circuit court of appeals to address the issue) has recognized constructive demotion claims, and noting that this circuit already has recognized claims for “constructive discharge” (for employee left with no option but to resign), the concurrence concluded: “Logic dictates that if a demotion can constitute a constructive discharge, then a constructive demotion can similarly constitute a constructive demotion.”

Thus, as in DC, an employee who can allege a work experience so intolerable as to leave no option but to accept a transfer likely will have a viable claim for constructive demotion claim in MD and VA.

Employer takeaways

Making a lateral transfer of a (current or potential) disability claimant to settle claims of discrimination and/or retaliation may not be an easy panacea. The transfer must be both “voluntary” and it not trade one “significant detriment” (discrimination or retaliation) for another (a significantly inferior position).

For more information, contact Lauri at 301-657-0176 or lecleary@lerchearly.com.