D.C. Employee Leave Updates

D.C. Universal Paid Leave Act and D.C. FMLA

The D.C. Universal Paid Leave Act (“UPLA” or “the Act”) took effect on April 7, 2017.  If you are a covered D.C. employer, you are undoubtedly aware that you have been paying into the Universal Paid Leave Implementation Fund since July 1, 2019.  This fund allows private sector employees in D.C. to receive paid leave when taking the following types of leave which would otherwise be unpaid: up to eight weeks to bond with a child; up to six weeks to care for a sick family member with a serious health condition; and, up to two weeks of personal medical leave.  UPLA benefits became available on July 1, 2020.

Employees must apply for UPLA benefits through the D.C. Department of Employment Services (“DOES”), and DOES determines and administers all benefits.  Employers do not have a role in the approval or denial of UPLA benefits, other than providing any requested documentation.  However, employers should be aware of the process, as well as their obligations under the Act.  Most importantly, employers must provide the required notice to all employees.

Who is a covered employer?  This definition broadly encompasses all employers.  Specifically: (A) any individual, general contractor, subcontractor, association, corporation, partnership, business trust, or any group of persons who directly or indirectly work through an agent or any other person including through the services of a staffing agency or temporary services or similar entity, employs or exercises control over the wages, hours, or working conditions of an employee and must pay unemployment insurance on behalf of its employees in Washington, D.C. or (B) a self-employed individual who has opted into the paid leave program.

Who is a covered employee?  The Act defines a covered employee as any employee who spends more than 50% of his or her working time in D.C. for a covered employer.

What benefits does the UPLA provide?  The Act allows for paid leave benefits, including intermittent leave benefits (paid leave taken in increments), in the following situations:

  • Medical Paid Leave.  An eligible employee is entitled to two weeks of paid medical leave following his/her diagnosis or occurrence of a serious health condition.
  • Family Paid Leave.  Eligible employees are entitled up to six weeks of paid family leave under the Act so the employee can provide care and companionship to a family member who has a diagnosis or occurrence of a serious health condition.
  • Parental Paid Leave.  Eligible employees are entitled up to eight weeks of paid parental leave which can be taken within one year of the birth of a child, placement of a child with an eligible employee for adoption or foster care, or placement of child for whom the eligible individual legally assumes and discharges parental responsibility.

UPLA runs concurrently with leave under the federal Family Medical Leave Act (“FMLA”) and the D.C. Family Medical Leave Act (“DC FMLA”).

When is an employee eligible for paid leave under the Act?  The Act defines an eligible individual as one who, during some or all of the 52 calendar weeks immediately preceding the qualifying event for which paid leave is being taken, (a)  has been a “covered employee” or (b) is a self-employed individual who earns self-employment income for work performed primarily in D.C. and has opted into the paid leave program.

Employee notification to employers.  Employees should notify their employers of their intention to apply for UPLA leave as soon as possible.  The written notice must include: (1) the type of leave requested, (2) the expected duration of leave, (3) the expected start and end dates, and (4) whether leave benefits will be used continuously or intermittently.  If the leave is foreseeable, the written notice must be provided at least ten days in advance, or as early as possible, before the start of leave.  If the leave is not foreseeable, an oral or written notification must be provided prior to the start of the work shift for which leave is being used.  In an emergency, the employee, or another individual on behalf of the eligible individual, must notify the employer, either orally or in writing, within 48 hours of the emergency.  Generally, an employee cannot submit a benefit claim prior to the first date of leave, and benefits will not be paid for any leave taken before a claim is submitted except in certain exigent circumstances (i.e., physical or mental incapacity; or, due to actual lack of knowledge by the applicant of his or her right to apply for benefits caused by the employer’s failure to comply with notice requirements).

What are employers’ requirements under the Act?

Notice Requirements: Employers are required to post a notice of the benefits under this law, including entitlement to pay for certain types of leave, the complaint process, and anti-retaliation.  Please find the notices here: https://does.dc.gov/node/1470351.

Employers must provide information about paid family leave at three times:

  1. At the time the employee is hired (if after January 2020);
  2. At least once a year starting in 2020; and
  3. If the employee ever asked, or when the employee asks, his/her employer for leave that could qualify for benefits under the paid family leave program.

Employers must post the notice in a conspicuous location.  Given the increase in remote working, employers may wish to email and/or mail the notice to all employees in compliance with the requirements above.  Employers that fail to comply with the notice requirements will be assessed a civil penalty not to exceed $100 for each covered employee to whom the notice was not provided, and $100 each day that a covered employer fails to post the notice in a conspicuous place.  For this reason, employers should retain records demonstrating compliance – i.e., email receipts or signed employee statements stating that they received the notice.

Recordkeeping Requirements: Employers must retain the following records for a period of three years:

  • The name and social security number, or, if the social security number is unavailable, tax identification number, of each covered employee;
  • The beginning and ending dates of each pay period;
  • Wages paid for each pay period, including the cash value of other remuneration, gratuities, and tips and expenses incurred by each covered employee for which a deduction from wages is claimed;
  • Method of payment;
  • Earnings of employees;
  • The dates on which wages were paid;
  • Dates of parental, medical, and family leave taken by employees;
  • Copies of employee notices of UPLA leave furnished to the employer;
  • Copies of all UPLA written notices given to employees as required;
  • Documents describing employee benefits, including short- and long-term disability policies, sick leave, vacation leave, and other employer paid and unpaid leave policies and practices; and
  • Records of UPLA-related disputes between the employer and the employee.

Does the Act provide employees with job protection?  The D.C. UPLA does not provide job protection to employees who decide to take leave and receive these benefits.  However, retaliation is prohibited.  In other words, the employer may not take adverse action against an employee for requesting or obtaining benefits under the D.C. UPLA.  Additionally, employers should be aware of other job protections that may apply under the FMLA, ADA, and the corresponding D.C. laws.

Does the UPLA affect other leave policies?  Although employers may not interfere with in any way, or reduce, employees’ entitlement to UPLA benefits, employers may wish to reduce the monetary value of company benefits or decide to modify their paid leave policies, considering the economic impact of the payroll tax to fund the UPLA.  Employers should also keep in mind the applicability of other federal and district regulations, such as the FMLA/D.C. FMLA, and the ADA.  Additionally, employees may not receive UPLA benefits and unemployment benefits at the same time.

Additional information concerning the UPLA can be found at does.dc.gov:

 

DC FMLA MAY BE USED FOR COVID-RELATED ABSENCES

In light of the expiration of FFCRA and recent updates to federal COVID leave laws under the American Rescue Plan Act, employers with employees in D.C. should be aware that eligible employees may use up to 16 weeks of unpaid, job protected, D.C. FMLA leave for the following COVID-19 related reasons:

(1) A recommendation from a health care provider that the employee isolate or quarantine, including because the employee or an individual with whom the employee shares a household is at high risk for serious illness from COVID-19;

(2) A need to care for a family member or an individual with whom the employee shares a household who is under a government or health care provider's order to quarantine or isolate; or

(3) A need to care for a child whose school or place of care is closed or whose childcare provider is unavailable to the employee.

Although D.C. FMLA is usually only available to employees who have worked for their employer for one year, employees may use leave for the reasons here after just 30 days of employment.

This unpaid leave requirement applies to all employers with employees in D.C.  Further, the Office of Human Rights (“OHR”) has stated in its guidance that if an employee’s typical jobsite has been in D.C., or the employee typically works at least 50 percent of the time in D.C., the employee remains covered by the D.C. FMLA even if the employee is working from home outside of D.C. during the declared public health emergency.

This expansion of the D.C. FMLA was originally in effect from March 2020 until October 2020 but has since been extended.  It will now remain in effect until the public health emergency ends.  For more information and a list of frequently asked questions, see the OHR Enforcement Guidance.

For more information or if you have additional questions, contact Cori Schreider, Melissa Jones, or any member of Tydings' employment and labor law practice.

This has been prepared by Tydings for informational purposes only and does not constitute legal advice.