D.C. Act 24-26. Workplace Safety During the COVID-19 Pandemic Emergency Amendment Act of 2021.
AN ACT
To require, on an emergency basis, employers to adopt and implement workplace safety policies that adhere to all applicable Mayor's Orders related to the COVID-19 public health emergency, to prohibit retaliation against an employee for taking actions related to complying with, stopping a violation of, or complaining about an employer's actions related to applicable COVID-19 health and safety laws and practices, testing positive or quarantining because of COVID-19, or caring for someone who has COVID-19 symptoms or is quarantining because of COVID-19, to prohibit an employer from prohibiting or discouraging an employee's use or wearing of personal protective equipment and from requiring an employee to agree or to comply with a workplace policy not to disclose information about workplace safety related to COVID-19, to establish 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, to authorize the Mayor to administer and enforce the workplace and employee protections in Title I of this act by receiving complaints, conducting investigations, and issuing civil fines, to authorize the Attorney General to enforce the workplace and employee protections in Title I of this act by receiving complaints, conducting investigations, and bringing civil actions in a court of competent jurisdiction, to authorize a private right of action to enforce section 103 of this act, to require employers to post notice of employees' rights under Title I of this act upon publication of such notice by the Mayor, and to provide that federal laws and regulations and standards preempt Title I of this act; to amend the Small and Certified Business Enterprise Act of 2005 to authorize the Mayor to issue grants for small businesses to purchase or receive reimbursements for the purchase of personal protective equipment for their employees; to authorize the Chief Procurement Officer to enter into an indefinite duration/indefinite quantity contract to assist eligible businesses in the purchase of personal protective equipment and other supplies related to the containment of COVID-19; to 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; to amend the District of Columbia Government Comprehensive Merit Personnel Act of 1978 to include COVID-19 as a compensable injury if contracted in the course and scope of employment; to amend the Workers' Compensation Act of 1979 to include COVID-19 as a compensable injury if contracted in the course and scope of employment; to amend the Tipped Wage Workers Fairness Amendment Act of 2018 to require the Mayor to add rights under this act to the Mayor's website stating the rights and benefits to which an individual is entitled under District labor laws; to repeal the Protecting Businesses and Workers from COVID-19 Temporary Amendment Act of 2020; and to repeal the Protecting Businesses and Workers from COVID-19 Congressional Review Emergency Amendment Act of 2021.
BE IT ENACTED BY THE COUNCIL OF THE DISTRICT OF COLUMBIA, That this act may be cited as the "Workplace Safety During the COVID-19 Pandemic Emergency Amendment Act of 2021".
TITLE I. Workplace Protections
Sec. 101. Definitions.
For the purposes of
(1) "Active Covid-19 infection" means an infection confirmed by a diagnostic test for COVID-19 and not an antibody test.
(2) "Adverse employment action" means an action that an employer takes against an employee, including 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 attempting to secure any right or protection contained in
(3) "Attorney General" means the Attorney General for the District of Columbia, as established by
(4) "CDC" means the U.S. Centers for Disease Control.
(5) "COVID-19" means the disease caused by the novel coronavirus SARS-CoV-2.
(6) "COVID-19 symptoms" means symptoms identified by the CDC or DOH that may appear after exposure to COVID-19 and include fever, chills, cough, shortness of breath, difficulty breathing, fatigue, muscle or body aches, headache, new loss of taste or smell, sore throat, congestion, runny nose, nausea, vomiting, conjunctivitis, a rash on skin or discoloration of fingers or toes, chest pain or pressure, loss of speech or movement, or diarrhea.
(7) "DOES" means the Department of Employment Services.
(8) "DOH" means the Department of Health.
(9) "Employee" includes any person suffered or permitted to work by an employer.
(10) "Employer" includes every individual, partnership, firm, general contractor, subcontractor, association, corporation, the legal representative of a deceased individual, or the receiver, trustee, or successor of an individual, firm, partnership, general contractor, subcontractor, association, or corporation, employing a person in the District of Columbia. The term "employer" includes the District government and its agencies and does not include the United States government or its agencies.
(11) "Mayor's Order" means an order related to the public health emergency issued by the Mayor pursuant to
(12) "OSHA" means the U.S. Department of Labor Occupational Safety and Health Administration.
(13) "Personal protective equipment" means clothing or accessories worn as a barrier to protect against COVID-19, including face masks, disposable gloves, face shields, plexiglass barriers, or any other protective equipment required by federal or District law or regulations or Mayor's Order, required pursuant to a standard issued by OSHA, or recommended by the CDC or WHO, to make the transmission of COVID-19 between persons less likely.
(14) "PPE" means personal protective equipment.
(15) "Public health emergency" means the COVID-19 public health emergency declared on March 11, 2020, pursuant to Mayor's Order 2020-045, and all subsequent extensions.
(16) "WHO" means World Health Organization.
(17) "Workplace" means any physical structure or space, over which an employer maintains control, wherein an employee performs work for an employer. The term "workplace" does not include the home or other location where an employee teleworks that is not subject to the employer's control.
(18) "Workplace health and safety practices related to COVID-19" means a workplace health and safety practice related to an employer's compliance with federal or District law or regulations or Mayor's Orders, a standard issued by OSHA, or a recommendation by the CDC or WHO intended to make the transmission of COVID-19 between persons less likely.
Sec. 102. Employer policies and workplace protections.
(a) During the public health emergency, employers in the District shall adopt and implement social distancing and workplace protection policies to prevent transmission of COVID-19 in the workplace in accordance with the requirements of all applicable Mayor's Orders.
(b)(1) An employer may establish a workplace policy to require an employee to report to the employer a positive test for an active COVID-19 infection.
(2) An employer may not disclose the name of an employee whom the employer learns has tested positive for COVID-19 except to DOH 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.
Sec. 103. Prohibited retaliation.
(a) No employer may take an adverse employment action against an employee because the employee:
(1) Complied or reasonably attempted to comply with the requirements of a Mayor's Order;
(2) Reasonably attempted to prevent or stop a violation of the requirements of a Mayor's Order;
(3) Submitted a complaint to the Mayor or the Attorney General pursuant to
(4) Raised reasonable concerns about workplace health and safety practices related to COVID-19 to:
(A) The employer, the employer's agent, other employees, contractors, or agents of the employer;
(B) A government agency; or
(C) The public; or
(5) Attempted to secure any other right or protection contained in
(b)(1) No employer may take an adverse employment action against an employee because the employee:
(A) Tested positive for COVID-19; provided, that the employee did not physically report to the workplace within 2 weeks after receiving a positive test result or during the timeframe recommended for quarantine by current DOH or CDC guidance;
(B) Had close contact with someone who has a confirmed case of COVID-19 or was exposed to someone experiencing COVID-19 symptoms;
(C) Needs to quarantine in accordance with CDC or DOH guidance;
(D) Is sick with COVID-19 symptoms and is waiting for a COVID-19 test result; or
(E) Is caring for someone who is sick with COVID-19 symptoms or who is quarantined in accordance with CDC or DOH guidance.
(2) Nothing in this section prohibits an employer from requiring an employee who has tested positive for COVID-19, who is experiencing COVID-19 symptoms, or who has recently been exposed to someone with COVID-19 to refrain from entering the workplace until the employee is no longer experiencing COVID-19 symptoms and the applicable period of quarantine recommended by the DOH, CDC, or WHO has elapsed, or until a medical professional has cleared the employee to return to the workplace.
(c) No employer may prohibit or cause another person to prohibit or discourage an employee from wearing or using PPE.
(d)(1) No employer may require an employee to sign a contract or other agreement that would limit or prevent the employee from disclosing information about the employer's workplace health or safety practices or hazards related to COVID-19 or to otherwise comply with any workplace policy that would limit or prevent such disclosure.
(2) A contract, other agreement, or policy prohibited pursuant to paragraph (1) of this subsection shall be void and unenforceable as contrary to the public health and to the public policy of the District.
(3) An employer's enforcement of a policy prohibited by paragraph (1) of this subsection or an employer's attempt to obtain an employee's consent to a contract or other agreement prohibited by paragraph (1) of this subsection, regardless of whether this attempt is successful, shall constitute an adverse employment action.
(e)(1) If an employer takes an adverse employment action against an employee within 30 days after the employee engages or attempts to engage in activity protected under subsection (a)(2), (3), (4), or (5) of this section or subsections (b), (c), or (d) of this section, the adverse employment action shall be presumed retaliatory and taken because of the employee's protected activity.
(2) An employer may rebut a presumption of retaliation by a preponderance of the evidence that the adverse employment action was taken for legitimate purposes and not because the employee engaged in or attempted to engage in protected activity.
(f) The protections of this section do not apply to an employee if the employee knowingly and falsely claims to:
(1) Have been exposed to COVID-19;
(2) Have COVID-19;
(3) Be providing caretaking services to someone required to self-quarantine; or
(4) Be required to self-quarantine.
Sec. 104. Enforcement by the Mayor.
(a)(1) The Mayor may enforce and administer
(2) A person to whom a subpoena or notice of deposition has been issued pursuant to paragraph (1) of this subsection shall have the opportunity to move to quash or modify the subpoena, or object to the notice of deposition, in the Superior Court of the District of Columbia. In case of failure of a person to comply with any subpoena lawfully issued under this subsection, or on the refusal of a witness to testify to any matter regarding which he or she may be lawfully interrogated, it shall be the duty of the Superior Court of the District of Columbia, or any judge thereof, upon application by the Mayor, to compel obedience by attachment proceedings for contempt, as in the case of disobedience of the requirements of a subpoena issued from the Court or a refusal to testify therein.
(b)(1) The Mayor may receive complaints for violations of sections
(2) To file a complaint, a complainant shall provide the name and location of the business or entity alleged to have committed a violation of
(3)(A) Within 2 business days after receipt of a complaint, the Mayor shall confirm receipt, in writing, to the complainant (either via email or by depositing a written notice of confirmation in the United States mail). Written confirmation may include a unique case number, the date and time of receipt of the complaint, and information on how to track the complaint process.
(B) The Mayor shall begin an investigation of the violations alleged in the complaint within 5 business days after receiving the complaint.
(4)(A) The Mayor shall complete all investigations of complaints received pursuant to this section within 60 days after receipt of the complaint and issue written findings within 90 days after receipt of the complaint related to whether:
(i) The violation complained of was substantiated;
(ii) If substantiated, it is the employer's first violation or the employer is a repeat violator; and
(iii) Fines or corrective action were imposed.
(B) If the complainant provided contact information, the Mayor shall send the findings to the complainant (by email or by depositing the findings in the United States mail). Written findings may be accompanied by statements regarding an employee's right to discuss and complain of workplace safety violations without retaliation pursuant to
(c)(1) The Mayor may impose the following civil fines for a violation of
(A) For violations of
(B) For violations of
(2) Enforcement and adjudication of fines imposed pursuant to paragraph (1) of this subsection shall be pursuant to
(3) The penalties in this section are not preclusive of any other applicable statutory penalties.
(d) Each month, the Mayor may post on the District's Coronavirus website a summary of the complaints received pursuant to this section. The summary may include:
(1) The total number of complaints received for the month;
(2) The total number of alleged violations delineated by:
(A) Type of alleged violation; and
(B) The industry (restaurant, higher education, childcare, religious organization, social services organization, retail, etc.) in which the alleged violation occurred;
(3) The status of the investigation into each complaint, whether resolved or unresolved; and
(4) The name of each business for which a violation was found and a statement of the penalty imposed.
(e) Nothing in this subsection shall be interpreted as obligating the Mayor to impose fines on the District or a District agency for a violation of
Sec. 105. Enforcement by the Attorney General.
(a)(1) The Attorney General has the authority to enforce
(2) A person to whom a subpoena or notice of deposition has been issued pursuant to paragraph (1) of this subsection shall have the opportunity to move to quash or modify the subpoena, or object to the notice of deposition in the Superior Court of the District of Columbia. In case of the failure of a person to comply with any subpoena lawfully issued under this subsection, or on the refusal of a witness to testify to any matter regarding which he or she may be lawfully interrogated, it shall be the duty of the Superior Court of the District of Columbia, or any judge thereof, upon application by the Attorney General, to compel obedience by attachment proceedings for contempt, as in the case of disobedience of the requirements of a subpoena issued from the Court or a refusal to testify therein.
(b) The Attorney General, acting in the public interest, including the need to deter future violations, may enforce
(c) Upon prevailing in an action initiated pursuant to this section, the Attorney General shall be entitled to:
(1) Reasonable attorneys' fees and costs, including fees and costs for any action brought by the Attorney General under subsection (a)(2) of this section;
(2) Statutory penalties in amount not greater than the maximum civil fine provided under
(3) The payment of restitution for lost wages, for the benefit of aggrieved employees; and
(4) Equitable relief as may be appropriate.
Sec. 106. Private right of action.
(a) An employee who has suffered an adverse employment action prohibited pursuant to
(1) Reasonable attorneys' fees and costs;
(2) The payment of lost wages and benefits;
(3) Equitable relief as may be appropriate; and
(4) Punitive damages, if the employee's injuries were caused by the employer's wanton or reckless disregard for the safety of the affected employee.
(b) An employee need not exhaust administrative remedies before bringing suit pursuant to this section.
Sec. 107. Notice.
(a) The Mayor may publish a notice that sets forth excerpts from or summaries of the pertinent provisions of
(b) Upon publication by the Mayor, an employer shall post and maintain the notice published pursuant to subsection (a) of this section in a conspicuous location in the workplace. The employer shall post such notice in English and any other language spoken by at least 10% of employees.
(c) An employer shall not be required to post in accordance with subsection (b) of this section if the Mayor has posted the rights to which an individual is entitled under
Sec. 108. Contact tracing.
(a) An employer must cooperate with contact tracers from the District of Columbia or other jurisdictions by promptly returning calls and messages, providing information about employees who shared shifts with infected employees or were in close proximity to infected employees, and by providing customer lists and contact information or contractor information as requested.
(b) An employer that agrees with DOH or another public health entity to notify particular employees, customers, or contractors that may have been exposed to a person infected with COVID-19 must undertake best efforts to make such notifications and must retain proof of such notification for one year from the date of such notification for inspection by DOH or other public health entity with which it entered such an agreement.
Sec. 109. Preemption.
TITLE II. GOVERNMENT ASSISTANCE TO PURCHASE PERSONAL PROTECTIVE EQUIPMENT
Sec. 201. The Small and Certified Business Enterprise Development and Assistance Act of 2005, effective October 20, 2005 (D.C. Law 16-33; D.C. Official Code § 2-218.01 et seq.), is amended as follows:
(a) The table of contents is amended by adding a new section designation to read as follows:
"Sec. 2317. Personal protective equipment emergency grant program.
(b) A new section 2317 is added to read as follows:
"Sec. 2317. Personal protective equipment grant program.
"(a)(1) Beginning October 1, 2020, during the public health emergency, and subject to the availability of funds, the Mayor shall, subject to the requirements of
"(A) Submits a grant application in the form and with the information required by the Mayor;
"(B) Submits a clear statement describing the type and quantities of PPE purchased or to be purchased; and
"(C) Demonstrates, to the satisfaction of the Mayor, financial distress caused by a reduction in business revenue due to the circumstances giving rise to or resulting from the public health emergency.
"(2) A grant issued pursuant to this section may be provided in an amount up to $1,000 per eligible small business for the purchase of or reimbursement for purchases of PPE made on or after March 1, 2020.
"(b) The Mayor may issue one or more grants to a third-party grant-managing entity, subject to the requirements of
"(c) The Mayor, pursuant to
"(d) For the purposes of this section, the term:
"(1) "Eligible small business" means a business enterprise eligible for certification under
"(2) "Public health emergency" means the Coronavirus ("COVID-19") public health emergency declared pursuant to Mayor's Order 2020-045, on March 11, 2020, and all subsequent extensions.
"(3) "Personal protective equipment" means clothing or accessories worn as a barrier to protect against COVID-19, including face masks, disposable gloves, face shields, plexiglass barriers, or any other protective equipment required by federal or District law or regulations or Mayor's Order, pursuant to a standard issued by OSHA, or as recommended by the CDC or WHO, to make the transmission of COVID-19 between persons less likely.".
Sec. 202. Authority of Chief Procurement Officer.
(a)(1) The Chief Procurement Officer ("CPO"), or the CPO's designee, shall have the authority during the public health emergency, and for 90 days thereafter, to enter into an indefinite-delivery/indefinite quantity contract ("IDIQ contract") for PPE, sanitization and cleaning products, related equipment, or other goods or supplies in furtherance of the District's COVID-19 recovery efforts that permit an entity that is, or is similar to, a local business enterprise, as that term is defined in
(2) Priority consideration for purchasing through the IDIQ contract shall be given to an eligible entity that is also:
(A) A small business enterprise, as that term is defined in
(B) A resident-owned business, as that term is defined in
(C) At least 51% owned by economically disadvantaged individuals, as that term is defined in
(b) The CPO, or CPO's designee, shall monitor and review, and may establish standards, procedures, or rules for an IDIQ contract entered into pursuant to subsection (a) of this section.
(c) For the purposes of this section, the term:
(1) "Personal protective equipment" means clothing or accessories worn as a barrier to protect against COVID-19, including face masks, disposable gloves, face shields, plexiglass barriers, or any other protective equipment required by federal or District law or regulations or Mayor's Order, pursuant to a standard issued by OSHA, or as recommended by the CDC or WHO, to make the transmission of COVID-19 between persons less likely.
(2) "Public health emergency" means the Coronavirus ("COVID-19") public health emergency declared pursuant to Mayor's Order 2020-045, on March 11, 2020, and all subsequent extensions.
TITLE III. Unemployment and Worker's Compensation eligibility
Sec. 301. Section 10(a) of the District of Columbia Unemployment Compensation Act, approved August 28, 1935 (49 Stat. 946; D.C. Official Code § 51-110(a)), is amended as follows:
(1) Designate the existing text as paragraph (1).
(2) A new paragraph (2) is added to read as follows:
"(2) For the purposes of paragraph (1) of this subsection, the term "good cause" includes working in unsafe locations or under unsafe conditions where such unsafe working condition or environment would cause a reasonable and prudent person in the labor market to leave the work, as determined by the Director based on the facts in each case.".
Sec. 302. Title XXIII of the District of Columbia Government Comprehensive Merit Personnel Act of 1978, effective March 3, 1979 (D.C. Law 2-139; D.C. Official Code § 1-623.01 et seq.) is amended as follows:
(a) Section 2301(5)(B) (D.C. Official Code § 1-623.01(5)(B)) is amended as follows:
(1) Sub-subparagraph (i) is amended by striking the phrase "; and" and inserting a semicolon in its place.
(2) Sub-subparagraph (ii) is amend by striking the period and inserting the phrase "; and" in its place.
(3) A new sub-subparagraph (iii) is added to read as follows:
"(iii) The contracting of COVID-19 (the disease caused by the novel Coronavirus SARS-CoV-2 or any of its recognized mutant variations) in the course of and within the scope of employment.".
(b) Section 2320 (D.C. Official Code § 1-623.20) is amended by adding a new subsection (a-1) to read as follows:
"(a-1) The employer of an employee who has contracted COVID-19 (the disease caused by the novel Coronavirus SARS-CoV-2 or any of its recognized mutant variations) in the course of and within the scope of employment or whose contact with others in the course of and within the scope of employment makes the contracting of COVID-19 probable shall report the injury or probable injury to the Mayor in accordance with subsection (a) of this section.".
Sec. 303. The District of Columbia Workers' Compensation Act of 1979, effective July 1, 1980 (D.C. Law 3-77; D.C. Official Code § 32-1501 et seq.), is amended as follows:
(a) Section 2(12) (D.C. Official Code § 32-1501(12)) is amended as follows:
(1) Strike the phrase "includes an injury caused by the willful act of third persons directed against an employee because of his employment." and insert the phrase "includes:" in its place.
(2) New subparagraphs (A) and (B) are added to read as follows:
"(A) An injury caused by the willful act of third persons directed against an employee because of his employment; and
"(B) The contracting of COVID-19 (the disease caused by the novel Coronavirus SARS-CoV-2 or any of its recognized mutant variations) in the course of and within the scope of employment.".
(b) Section 33 (D.C. Official Code § 32-1532) is amended by adding a new subsection (a-1) to read as follows:
"(a-1) The employer of an employee who has contracted COVID-19 (the disease caused by the novel Coronavirus SARS-CoV-2 or any of its recognized mutant variations) in the course of and within the scope of employment or whose contact with others in the course of and within the scope of employment makes the contracting of COVID-19 probable shall report the injury or probable injury to the Mayor in accordance with subsection (a) of this section.".
TITLE IV. NOTICE OF WORKER RIGHTS
Sec. 401. Section 3(a)(1) of the Tipped Wage Workers Fairness Amendment Act of 2018, effective December 13, 2018 (D.C. Law 22-196; D.C. Code § 32-161(a)(1)), is amended as follows:
(a) Subparagraph (J) is amended by striking the phrase "; and" and inserting a semicolon in its place.
(b) Subparagraph (K) is amended by striking the period and inserting the phrase "; and" in its place.
(c) A new subparagraph (L) is added to read as follows:
"(L) The Workplace Safety During the COVID-19 Pandemic Temporary Amendment Act of 2021, passed on first reading on February 2nd, 2021 (Engrossed version of Bill 24-59).".
TITLE V. REPEALER, Fiscal Impact, and Effective Date
Sec. 501. (a) The Protecting Businesses and Workers from COVID-19 Temporary Amendment Act of 2020, effective December 23, 2020 (D.C. Law 23-168; 68 DCR 742), is repealed.
(b) The Protecting Businesses and Workers from COVID-19 Congressional Review Emergency Amendment Act of 2021, effective February 1, 2021 (D.C. Act 24-7; 68 DCR _____), is repealed.
Sec. 502. Fiscal impact statement.
The Council adopts the fiscal impact statement of the Budget Director as the fiscal impact statement required by section 4a of the General Legislative Procedures Act of 1975, approved October 16, 2006 (120 Stat. 2038; D.C. Official Code § 1-301.47a).
Sec. 503. Effective date.
This act shall take effect following approval by the Mayor (or in the event of veto by the Mayor, action by the Council to override the veto), and shall remain in effect for no longer than 90 days, as provided for emergency acts of the Council of the District of Columbia in section 412(a) of the District of Columbia Home Rule Act, approved December 24, 1973 (87 Stat. 788; D.C. Official Code § 1-204.12(a)).
