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FMLA: District of Columbia

FMLA requirements for other states

Federal law and guidance on this subject should be reviewed together with this section.

Author: Peter J. Petesch, Littler

Summary

  • In addition to the federal laws, employers may also be required to provide leave under the District of Columbia Family and Medical Leave Act and the Accrued Sick and Safe Leave Act. See Family and Medical Leave, Generally.
  • Paid sick leave is available to eligible employees, and the amount of paid sick leave available varies by the size of the employer and the amount of hours the employee works. See Paid Sick Leave.
  • Employers may be required to provide time off to recover from childbirth as a reasonable accommodation. See Pregnancy Leave and Accommodation.
  • The District of Columbia has enacted the Universal Paid Leave Amendment Act of 2016, which provides employees with paid parental, family and medical leave benefits that are funded by employer contributions. See Paid Family and Medical Leave.
  • Other types of leave may be available to District of Columbia employees - some required by federal law, and some provided by company policy, as well as several sources of income replacement. See Interaction of Leave Laws.

Family and Medical Leave, Generally

Generally, family and medical leave laws require covered employers to provide eligible employees with job-protected leaves of absence for qualifying reasons. The primary federal law governing leave is the Family and Medical Leave Act (FMLA). Employers covered under the FMLA may also be required to provide leave under the Pregnancy Discrimination Act (PDA) and the Americans with Disabilities Act (ADA).

In addition to the federal laws, District of Columbia employers may also be required to provide leave under the District of Columbia Family and Medical Leave Act (DC FMLA) and the Accrued Sick and Safe Leave Act. Employers should apply the law(s) that provide the greatest benefit to the employee.

Employers should note that leave required by a state or local law is not taken into account when determining the amount of leave provided by an employer for federal tax credit purposes under the federal tax reform law.

Same-Sex Marriage

The Supreme Court ruled that the 14th Amendment requires a state to do the following:

  • License a marriage between two people of the same sex; and
  • Recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out of state.

Obergefell v. Hodges, +2015 U.S. LEXIS 4250 (U.S. June 26, 2015).

Same-sex marriage is legal nationwide, and couples lawfully married in any jurisdiction, including the District of Columbia, are entitled to FMLA spousal leave benefits.

While District of Columbia law recognizes same-sex domestic partnerships, such unions are not recognized as marriages under the federal FMLA so employees in same-sex domestic partnerships cannot take FMLA leave to care for their civil partners but can take such leave under the DC FMLA as persons in committed relationships as defined by District of Columbia law.

Generally, if both the federal FMLA and a state leave law provide coverage for an event, an employer can run the two leaves concurrently.

Practical Example

John is a long-term employee of Acme Marketing. John and his partner Fred entered into a domestic partnership in 2002. Fred just found out he has cancer and has to undergo extensive treatment. John requests 12 weeks of DC FMLA leave to care for Fred. After reviewing John's request and supporting documents, Acme Marketing grants John's request. Three months after returning from leave, John finds out that he has a serious heart condition, which requires immediate surgery. John requests FMLA leave to take care of his own serious health condition. Assuming John provides the appropriate certification and meets the other FMLA eligibility requirements, Acme Marketing must provide John with an additional 12 weeks of leave under the FMLA (thus totaling 24 weeks of leave in the same year).

If John and Fred were legally married, leave to care for a spouse's serious health condition would be covered under the FMLA and John would not be entitled to an additional 12 weeks of leave because he would have exhausted his FMLA leave taking care of his spouse Fred (two leaves run concurrently). However, because the DC FMLA provides for 16 weeks of leave, he would be eligible to take an additional four weeks of leave.

A District of Columbia employer should also be careful if it seeks to confirm an employee's same-sex spousal relationship to ensure it does not discriminate in any way. An employer's practices regarding FMLA leave for employees in same-sex marriages should be handled in the same fashion as those in opposite-sex marriages (e.g., if an employer does not ask heterosexual employees for marriage licenses it should be careful about asking homosexual employees for such documentation).

Apart from FMLA considerations, employers with employees residing in the District should look at existing policies that provide for leave based on spousal relationships, such as non-FMLA leave, bereavement leave or military leave. Policy language (such as how a spouse is defined) may need to be revised.

District of Columbia Family and Medical Leave Act

Employer Coverage

The District of Columbia Family and Medical Leave Act (DC FMLA) covers employers that employ 20 or more employees (as opposed to the FMLA's 50 employee requirement) during 20 or more calendar workweeks (consecutive or not) in either the current or preceding year.

Employees must be employed in the District of Columbia. The determination of whether 20 employees are employed in the District is determined when an employee provides notice of the need for leave.

+D.C. Code § 32-516(2).

An employer may include any of the following who use the services of another individual for compensation in the District:

  • An individual;
  • A firm;
  • An association or corporation; and/or
  • A receiver or trustee of any individual, firm, association or corporation of a deceased employer (including the District of Columbia government).

Where two or more businesses exercise some control over the work or working conditions of the employee, the businesses may be considered joint employers under the DC FMLA. Joint employers may be separate and distinct entities with separate owners, managers and facilities. In joint employment relationships, only the primary employer is responsible for giving the required notices to its employees, providing DC FMLA leave and maintenance of health benefits. +CDCR 4-1602.

A covered employer should consider including a family and medical leave policy in its handbook to educate employees, including supervisors, about the availability of family and medical leave and to show its compliance with District of Columbia law.

Employee Eligibility

An employee is eligible for DC FMLA if the employee:

  • Has worked for the same employer for at least one year without a break in service. Regular holidays, as well as sick and personal leave, granted by the employer do not count as breaks in service;
  • Has worked at least 1,000 hours (compared to the FMLA's 1,250-hour requirement ) during the 12-month period immediately preceding the employee's request for family and medical leave; and
  • Works within the District of Columbia. Employees are considered as working in the District of Columbia if:
    • The employee spends more than 50 percent of their work time working for the employer in the District of Columbia, if the employee is employed by the employer in more than one location; or
    • The employee is based in the District of Columbia and regularly spends a substantial part of time working for the employer in the District and does not spend more than 50 percent of their work time working for the employer in any particular state.

The one year of employment without a break in service need not be immediately preceding the DC FMLA request, but if the break in service between the request for FMLA leave and the last date of service is greater than seven years, the time need not be included in determining eligibility.

+D.C. Code § 32-501(1); +CDCR 4-1603.

Purpose and Length of Leave

An employee is entitled to a total of 16 workweeks (as opposed to the FMLA's 12 weeks) of unpaid family leave during any 24-month period (as opposed to the FMLA's 12-month period) for:

  • The birth of a child of the employee;
  • The placement of a child with the employee for adoption or foster care;
  • The placement of a child with the employee for whom the employee permanently assumes and discharges parental responsibility; or
  • The care of a family member of the employee who has a serious health condition.

A serious health condition is defined as a physical or mental illness, injury or impairment that involves either inpatient care in a hospital, hospice or residential health care facility, or continuing treatment or supervision at home by a health care provider or other competent person.

When the leave is taken for birth or placement of a child the entitlement to leave ends 12 months following the event.

The DC FMLA does not include military-related family leave. However, employers may be covered by the FMLA and/or USERRA.

+D.C. Code § 32-502.

The DC FMLA defines a family member more broadly than the FMLA and includes:

  • A person to whom the employee is related by blood, legal custody or marriage (including same-sex marriages);
  • A child who lives with an employee and for whom the employee permanently assumes and discharges parental responsibility;
  • A person with whom the employee shares or has shared, within the past year, a mutual residence and with whom the employee maintains a committed relationship; or
  • A foster child.

+D.C. Code 32-501(4).

The DC FMLA defines a child, as:

  • A person under the age of 21;
  • A person over the age of 21 who is substantially dependent on the employee by reason of physical or mental disability; or
  • A person under the age of 23 who is a full-time student at an accredited college or university.

The DC FMLA defines a committed relationship as a familial relationship between two people, established by certain factors, such as:

  • Mutual economic interdependence (e.g., joint bank accounts, shared leasing);
  • Domestic interdependence, including the public presentation of the relationship and the exclusivity of the relationship;
  • The length of the relationship; and
  • The intent of both people to stay committed in the relationship, as evidenced by things such as a will or life insurance. +D.C. Code 32-501; +CDCR 4-1699.

Information about an employee's family relationships is confidential and may only be used to make decisions regarding family leave. +D.C. Code § 32-502(i).

If two family members are employed by the same employer, the employer may limit their allowable family leave to an aggregate of 16 workweeks in a 24-month period. In addition, the employer may limit the number of workweeks during which two family members are allowed to take leave simultaneously to four workweeks during a 24-month period. +D.C. Code § 32-502(h).

Medical leave may be taken under the DC FMLA if an employee is unable to perform the functions of the job due to a serious health condition. The definition of a serious health condition is the same for medical leave as it is for family leave. An employee is entitled to 16 workweeks of medical leave during any 24-month period. +D.C. Code § 32-503(a).

Intermittent or Reduced-Schedule Leave

When an employee or the employee's family member has a serious health condition, the family or medical leave may be taken intermittently or on a reduced schedule when medically necessary.

When an employee requests intermittent family leave for the birth, adoption, or foster care or other placement of a child, leave may be taken on a reduced-leave schedule so that the 16 workweeks of family leave are taken over a period not to exceed 24 consecutive workweeks. Such a reduced leave schedule is contingent on agreement between the employee and the employer. +D.C. Code § 32-502(d).

Compensation During Leave

The DC FMLA does not require employers to provide paid family or medical leave. Therefore, family and medical leave generally consists of unpaid leave. In certain circumstances, employer provided paid leave time may be used concurrently while an employee is on family or medical leave. However, employees may not add paid sick leave to extend the leave time beyond the 16 weeks of medical leave provided by the DC FMLA. See Harrison v. Children's National Medical Center, +678 A.2d 572, 576 (D.C. 1996). But see Paid Sick Leave.

Use of Paid Time Off

For family leave, an employee may choose to substitute paid family, vacation, personal or compensatory leave that the employer provides. The paid time that is used will count against the 16 workweeks of allowable family leave provided in the DC FMLA.

For medical leave, an employee may choose to use any paid medical or sick leave the employer provides. An employee may elect to use any accrued vacation, personal or compensatory paid time to be used during the medical leave. All paid time used as medical leave counts against the 16 workweeks of allowable medical leave provided in the DC FMLA.

If an employer has endorsed a program allowing an employee to use the paid leave of another employee under certain conditions, and those conditions are satisfied, then the employee may use such paid leave as family or medical leave. The paid time used in that case also will count against the 16 workweeks provided under the DC FMLA.

+D.C. Code § 32-502; +D.C. Code § 32-503.

Employer Notice and Posting Requirements

An employer must include the DC Family and Medical Leave Act poster information in an employee handbook or manual, if applicable. Posting requirements include displaying a hard copy in a conspicuous place that employees frequent (e.g., break room, lunch room) or an electronic copy on the employer's website.

If an employer does not have an employee handbook or manual the employer must distribute the information to a new employee in another form (e.g., through a handout or electronic distribution). Willful violations of this notice requirement will result in a civil penalty of up to $100 for each day the notice is not posted.

+D.C. Code § 32-511.

When an employee requests DC FMLA leave, or if an employer receives information that an employee's leave may be for a DC FMLA qualifying reason, the employer must notify the employee of their eligibility under the DC FMLA. Within five days after an employee requests DC FMLA leave, the employer must provide written notice to the employee of their eligibility rights in the form of an eligibility letter.

The eligibility letter must set forth the following:

  • Whether the employee is an eligible employee for the purposes of the DC FMLA;
  • If the employer determines that the employee is not an eligible employee for the purposes of the DC FMLA, the reasons for the employee's ineligibility;
  • The employee's specific expectations and obligations under the DC FMLA and, if applicable, under the federal FMLA;
  • The employee's rights under the DC FMLA and, if applicable, under the FMLA;
  • The number of hours of leave available to the employee under the DC FMLA and, if applicable, under the FMLA; and
  • If applicable, a notice that the employee must submit a certification, if such certification is required by the employer.

+D.C. Code § 32-502(f); +D.C. Code § 32-502(g); +D.C. Code § 32-503(c); +CDCR 4-1613.4.

Employee Notice and Certification Requirements

If the need for leave is foreseeable, the employee must give the employer "reasonable prior notice," which means at least 30 days in advance. If the need for leave is foreseeable and the employee fails to give timely notice to the employer with no reasonable excuse, the employer may delay DC FMLA coverage until 30 days after the date the employee provides notice.

If the need for leave is unforeseeable, the employee must give notice as soon as practicable prior to the date the employee wishes to begin leave. If the employee is to undergo planned medical treatment, the employee must make a reasonable effort to schedule the treatment so it does not unduly interfere with the employer's productivity. The treatment schedule is subject to the agreement of the employee's medical provider.

+D.C. Code § 32-502; +D.C. Code § 32-503; +CDCR 4-1614.1; +CDCR 4-1614.2.

If the approximate timing of the need for leave is not foreseeable, the employee must request family or medical leave no later than five business days after the absence begins, or as soon as practicable thereafter. For family leave due to the expected birth or placement of a child, the employee must provide the employer with at least 30 days' advance notice of the expected birth or placement of the child. If the exact date of birth or placement is unknown, the employee may fulfill this advance notice requirement by providing the employer with the expected approximate birth or placement date 30 days in advance of the approximate date. +CDCR 4-1614.3; +CDCR 4-1614.4.

If the employee is unable to provide notice of leave personally, the employee's spokesperson (for example, the employee's spouse, an adult family member, a health care provider or another responsible party) may give notice on the employee's behalf. Neither the employee nor the employee's spokesperson are required to expressly invoke the DC FMLA in order to meet the employee's obligation to provide notice. Rather, the person giving notice need only explain the reason for the leave so as to allow the employer to determine whether the leave qualifies under the DC FMLA. +CDCR 4-1614.3; +CDCR 4-1614.7.

For family leave and medical leave requests, an employer may require certification of the illness by the health care provider. Certification forms should incorporate the following:

  • The date on which the serious health condition began;
  • The probable duration of the condition;
  • The appropriate medical facts within the knowledge of the health care provider that would entitle the employee to take leave under the DC FMLA;
  • For purposes of medical leave, an explanation of the extent to which the employee is unable to fulfill the duties of their position; and
  • For purposes of family leave, an estimate of the amount of time the employee will need to care for the family member.

+D.C. Code § 32-504(b); +CDCR 4-1607.

An employer may inadvertently waive the certification requirement by failing to maintain policies requiring the employee to produce appropriate medical documentation.

An employer may require that an employee submit a medical certification within 15 days after the issuance of the eligibility letter, if the employee is seeking to take medical leave. In addition, the employer may require the employee to submit a medical certification for leave related to a family member's serious health condition.

Employer Challenges to Certification

If an employer has reason to doubt the validity of the certification, the employer may, at its own expense, require a second medical opinion by a health care provider it approves. All medical opinions subsequent to the original certification may not be provided by health care providers who are retained on a regular basis by the employee or by the employer.

Likewise, the health care providers may not bear a close relationship to the employee or employer so as to taint the subsequent medical certifications with the appearance of bias. If the second opinion differs from the original certification, the employee may obtain the opinion of a third health care provider mutually agreed upon by the employer and employee. The cost of the third medical opinion also will be covered by the employer. The opinion of the third health care provider is final and binding. The employer may require the employee to provide subsequent recertification of illness on a reasonable basis.

Once an employer receives a completed certification, the employer must designate the leave as DC FMLA- and/or federal FMLA-qualifying and give notice in writing, of the designation within five business days after receiving certification, absent extenuating circumstances. +CDCR 4-1613.

An employer's use of certification information requested for family or medical leave is limited to making decisions with regard to leave requests. Employers must maintain the confidentiality of the medical information obtained in the leave request. Therefore, all forms and supporting medical certifications must be maintained in a segregated and locked file, separate from the employee's personnel file. Also, only individuals with a demonstrated "need to know" of an employee's DC FMLA status - including supervisors or managers - may be provided such medical information.

Any employer that willfully violates the certification requirements of the DC FMLA will be assessed a civil penalty of $1,000 for each offense.

+D.C. Code §32-504.

Benefits During Leave

Employees may not lose any employment benefit or seniority accrued before the leave began as a result of taking family or medical leave. However, employees are not entitled to accrue any seniority or employment benefit (other than health care benefits) during the time the family or medical leave is taken. During any period of family or medical leave, the employer must maintain the employee's coverage under any group health plan. Limited to the purposes of the DC FMLA, a "group health plan" includes the group health plan provided by the District. Coverage under the health plan for the duration of the family or medical leave should be maintained at the same level and under the same conditions as if the employee did not have a break in service.

An employer may require the employee to continue making any contributions to a group health plan that the employee would have made if he or she had not taken leave. If the employee is unable or refuses to make the proper contributions to the group health plan, the employee forfeits the health plan benefit until the employee is reinstated after leave has been taken, and the employee's regular payments to the plan resume.

+D.C. Code § 32-505.

Reinstatement

Upon return from family or medical leave, the employee should be restored to the position held when the leave began, or to an equivalent position with like benefits, pay, seniority and other terms and conditions of employment.

An employer may, however, deny restoration of employment to a salaried employee if:

  • The employee is among the five highest paid employees of an employer that employs fewer than 50 people; or
  • The employee is among the highest paid 10 percent of employees for an employer that employs 50 or more people.

If either of these exceptions applies, the employer must also meet the following conditions to justify denial of reinstatement:

  • The employer must show that the denial of restoration is necessary to prevent substantial economic injury to its operations;
  • The employer must demonstrate that the substantial economic injury is not directly related to the leave that the employee took; and
  • The employer must notify the employee of its intent to deny restoration and the basis for its decision.

An employer does not have to show that the denial of restoration is necessary to prevent substantial economic injury to its operations or that the substantial economic injury is not directly related to the leave that the employee took if:

  • The employee is working under a contract to provide work or services;
  • The employee's absence prevents completion of the job under the contract terms;
  • Failure to abide by the contract will cause economic despair; and
  • After making reasonable attempts, the employer has been unable to locate a temporary replacement for the employee.

+D.C. Code § 32-505.

Alternative Employment in Lieu of Leave

Upon mutual agreement, an employer and an employee may agree to alternative employment for the duration of the employee's serious health condition. However, any period of alternative employment will not count against the 16 weeks of family or medical leave to which the employee is entitled. When the employee who agreed to alternative employment is able to perform the duties of the original position, the employee must be restored to that original position or an equivalent position, which includes equivalent employment benefits, pay, seniority and other terms and conditions of employment.

+D.C. Code § 32-505.

Prohibited Actions

An employer may not retaliate against an employee because the employee exercised their rights under the DC FMLA. Retaliatory actions include interference with or denial of the exercise of any right provided by the DC FMLA and the attempted termination of an employee who participated in or facilitated legal proceedings under the Act.

The Mayor of the District of Columbia may authorize investigations and accumulate data regarding any wage, hour, condition or practice of employment related to the DC FMLA. The Mayor may also inspect a worksite or records that are required to be kept by the DC FMLA.

+D.C. Code § 32-507; +D.C. Code § 32-508.

Collective Bargaining Agreements

An employee's rights under the DC FMLA may not be reduced by a collective bargaining agreement or any other employee benefit program or plan, unless the clause dealing with family or medical leave in the collective bargaining agreement was in force prior to October 4, 1990. Nothing in the DC FMLA limits an employer's duty to adhere to a collective bargaining agreement or employee benefit plan that provides greater rights than the DC FMLA. +D.C. Code § 32-513.

Recordkeeping

An employer must maintain records that document extensive leave information annually, including:

  • The total number of employees who have taken leave under the DC FMLA:
  • The annual additional cost to the employer for the expenses incurred to replace an employee during the time the employee is on DC FMLA leave;
  • The annual additional cost incurred to pay for the employee's health insurance during the time the employee is on leave under the DC FMLA;
  • The length of leave taken by an employee under the DC FMLA;
  • The reason(s) an employee took leave under the DC FMLA;
  • The salary, hourly wage or grade level of the employee who has taken DC FMLA leave;
  • The employee's request and supporting documents for requested leave; and
  • The employer's disposition of the employee's leave request.

+CDCR 4-1617.5.

Enforcement

If an employee believes their rights under the DC FMLA have been violated, the employee must file a complaint within one year of the alleged violation with the District of Columbia Office of Human Rights. After an investigation, if no resolution is reached, the Office of Human Rights will determine if there is probable cause that a violation took place; if so, a written notice and a copy of the complaint will get served on the employer.

If there is a finding of a violation, the employer may be required to pay the employee damages equal to any wages, salary, benefits or other compensation denied or lost to the employee because of the violation (plus interest). The employee may also recover reasonable attorney fees and costs. +D.C. Code § 32-509.

All employers with employees in the District of Columbia must provide paid sick and safe leave under the Accrued Sick and Safe Leave Act (ASSLA), as amended by the Earned Sick and Safe Leave Amendment Act of (ESSLA).

All employers with one or more employees working in the District of Columbia, including employers who use temporary placement or staffing agencies are subject to the ASSLA/ESSLA.

The amount of leave required per calendar year depends on the number of individuals employed by the employer in the District of Columbia, as follows:

  • Employers with 100 or more employees: Up to seven days;
  • Employers with 25-99 employees: Up to five days; and
  • Employers with 24 or fewer employees: Up to three days.

To determine the number of employees in its employ, an employer should add the total number of full-time equivalent (FTE) employees working in the District of Columbia at the start of each month of the prior year and then divide by 12.

Paid sick leave may run concurrently with leaves available under the FMLA, DC FMLA, and other state and federal law provided the employee is otherwise eligible for leaves under those laws. However, an employee may not use paid sick time concurrently with any other paid leave. For example, an employee on workers' compensation leave who is receiving workers' compensation benefits cannot also treat the leave as paid sick leave.

For more information on paid sick leave, such as details on employee eligibility, qualifying reasons for leave, accrual and use, compensation, notice and documentation, recordkeeping and more, please see Other Leaves: District of Columbia.

Pregnancy Leave and Accommodation

The Protecting Pregnant Workers Fairness Act of 2014 requires an employer to provide reasonable accommodations for employees whose ability to perform the functions of their jobs is limited by pregnancy, childbirth, a related medical condition or breastfeeding. A reasonable accommodation may include time off due to pre-birth complications or to recover from childbirth. For more information on pregnancy accommodations, please see Disabilities (ADA): District of Columbia.

The District of Columbia has enacted the Universal Paid Leave Amendment Act of 2016, which provides employees with paid parental, family and medical leave benefits that are funded by employer contributions. The Act took effect April 7, 2017. The Act contains anti-retaliation provisions that are currently effective. Collection of employer contributions begin by July 1, 2019, and employees may begin accessing paid leave benefits July 1, 2020.

The law is a combination of both insurance and leave rights.

Employer Coverage

The Act applies to all employers that are required to pay unemployment insurance on behalf of their employees, except:

  • The United States;
  • The District of Columbia; and
  • Any employer that the District is not authorized to tax under federal law or treaty.

+D.C. Code § 32-541.01(4)

Employee Eligibility

A covered employee is one who works for a covered employer and:

  • Who spends more than 50 percent of his or her work time for the employer in the District; or
  • Whose employment is based in the District and who regularly spends a substantial amount of his or her work time for the employer in the District and not more than 50 percent of his or her work time for the employer in another jurisdiction.

+D.C. Code § 32-541.01(3).

To be eligible for benefits, an employee must be a covered employee during some or all of the 52 calendar weeks immediately preceding the need for leave. +D.C. Code § 32-541.01(6).

Self-employed individuals are also eligible to collect paid leave benefits.

Qualifying Events

Benefits are available for the following qualifying events and for the following amounts of time:

  • Family leave, to provide care or companionship to a family member due to the diagnosis or occurrence of a serious health condition (up to six workweeks in a 52-workweek period);
  • Medical leave, for the diagnosis or occurrence of the employee's own serious health condition (up to two workweeks in a 52-workweek period); and
  • Parental leave, for the birth of a child, placement for adoption or foster care of a child or placement of a child for whom the employee legally assumes and discharges parental responsibility, to be taken within one year of the birth or placement (up to eight workweeks in a 52-workweek period).

+D.C. Code § 32-541.01.

An employee may collect a maximum of eight workweeks of benefits in a 52-workweek period, regardless of the number of qualifying leave events that occur during that time. Benefits may be collected for intermittent leave (increments may be no less than one day). +D.C. Code § 32-541.04(f).

A family member includes:

  • A biological, adopted, foster or stepchild; legal ward; child of a domestic partner; or person to whom the employee stands in loco parentis;
  • A biological, adoptive, foster or stepparent; parent-in-law; legal guardian; or person who stood in loco parentis to the employee when the employee was a child;
  • A spouse or domestic partner;
  • A grandparent; or
  • A sibling.

+D.C. Code § 32-541.01(7).

A serious health condition means a physical or mental illness, injury or impairment that requires inpatient care in a hospital, hospice or residential health care facility, or continuing treatment or supervision at home by a health care provider or other competent individual. The Act excludes conditions for which cosmetic treatments are administered. Procedures related to an individual's gender transition are not considered cosmetic treatments. +D.C. Code § 32-541.01(20).

Benefit Amounts

An employee whose average weekly wage is equal to or less than 150 percent of the District's minimum wage multiplied by 40 will be entitled to receive benefits equal to 90 percent of his or her average weekly wage. +D.C. Code § 32-541.04(g).

An employee whose average weekly wage is greater than 150 percent of the District's minimum wage multiplied by 40 will be entitled to receive benefits equal to 90 percent of 150 percent of the District's minimum wage multiplied by 40, plus 50 percent of the amount by which the employee's average weekly wage exceeds 150 percent of the District's minimum wage multiplied by 40.

No employee will be eligible to receive more than the maximum weekly benefit amount.

The average weekly wage is the total wages earned by an employee during the four out of five quarters immediately preceding the qualifying event during which the employee's wages were highest, divided by 52. +D.C. Code § 32-541.01(1).

Limitation on Benefits

There is a one-week waiting period before an employee can begin receiving benefits. An employee who experiences a subsequent qualifying event in the same 52-week period will not be subject to a second waiting period. +D.C. Code § 32-541.04(b).

Nonduplication of Benefits

An employee may not collect paid leave benefits if he or she is receiving unemployment insurance benefits or long-term disability payments. +D.C. Code § 32-541.07.

Employer Notice Requirements

A covered employer must post a notice at each worksite that explains:

  • An employee's right to paid leave benefits and the terms under which such leave may be used;
  • That an employer may not retaliate against an employee for requesting, applying for or using paid leave benefits;
  • That an employee who works for an employer with fewer than 20 employees is not entitled to job protection if he or she decides to take paid leave under the Act; and
  • That an employee has the right to file a complaint and the procedures for filing a complaint.

The notice must be posted in a conspicuous place or places where notices to employees are customarily posted. An employer must send the notice to covered employees who work remotely, to post at their individual worksites.

A worksite means a single physical location where business is conducted or where services or industrial operations are performed. If activities are physically dispersed (e.g., agriculture; construction; transportation; communications; and electric, gas and sanitary services), then the notice must be posted at the location to which covered employees report each day.

An employer must also provide the notice:

  • To new hires, within 30 days of the beginning of employment;
  • Annually; and
  • When it becomes aware leave is needed.

The notice may be sent electronically, as long as the employer retains email receipts or signed statements by employees acknowledging delivery.

+D.C. Code § 32-541.06; CDCR 7-3407.

Employee Notice Requirements

To the extent possible, an employee must provide written notice to the employer of the need to use paid leave benefits before taking leave. The notice must include the reason for the absence (within the parameters of the Health Insurance Portability and Accountability Act (HIPAA)) and the expected duration of the leave. +D.C. Code § 32-541.07.

If the leave is foreseeable, written notice must be provided at least 10 days in advance, or as early as possible.

If the leave is not foreseeable, oral or written notice must be provided before the start of the work shift for which the paid leave is being used.

In the case of an emergency, oral or written notice from the employee or someone on the employee's behalf must be provided within 48 hours of the emergency occurring.

Recordkeeping Requirements

An employer must maintain the following information for each employee for at least three years:

  • Name;
  • Social Security Number or individual taxpayer identification number;
  • Beginning and ending dates of each pay period;
  • Wage paid for each pay period, including the value of nonmonetary remuneration;
  • Method of payment;
  • Earnings;
  • Dates on which wages were paid;
  • Dates of parental, medical and family leave taken;
  • Copies of employee notices of leave given to the employer;
  • Copies of all written notices given under the law;
  • Documents describing employee benefits, including short-term and long-term disability, sick and vacation leave, and other employer-paid and unpaid leaves;
  • Records of any disputes between the employer and the employee regarding the law; and
  • Dates of employment.

CDCR 7-3408.

Prohibited Acts

An employer is prohibited from:

  • Interfering with, restraining or denying the exercise of, or attempt to exercise, any right provided by the Act; and
  • Retaliating in any manner against any individual because he or she:
    • Opposes an unlawful practice under the Act;
    • Files or attempts to file a charge related to the Act;
    • Institutes or attempts to institute a proceeding related to the Act;
    • Facilitates the institution of a proceeding;
    • Requests, applies for or uses paid leave benefits; or
    • Gives any information or testimony in connection with an inquiry or proceeding.

+D.C. Code § 32-541.10.

Acts of retaliation include:

  • Any form of intimidation, threat, reprisal, harassment, discrimination or adverse employment action, such as:
    • Discipline;
    • Termination;
    • Suspension; or
    • Transfer or assignment to a lesser position in terms of job classification, job security or other condition of employment;
  • Reduction in pay or hours, or denial of additional hours;
  • Informing another employer that the employee engaged in protected activities; and
  • Reporting or threatening to report the actual or suspected citizenship or immigration status of an employee, a former employee or a family member to a federal, state or local agency.

+D.C. Code § 32-541.01 (18).

Interaction With Other Laws and Policies

If paid leave taken under the Act also qualifies as protected leave under the federal Family and Medical Leave Act (FMLA) or the DC FMLA, the leaves will run concurrently. The Act does not provide employees with any greater job protection than is provided under the DC FMLA. +D.C. Code § 32-541.07.

The Act does not supersede any law, collective bargaining agreement (CBA) or other contract that provides additional paid leave rights. An individual's rights to benefits under the Act will not be diminished by a CBA entered into or renewed after December 31, 2017, or by an employer policy. An employee may not agree to waive his or her rights under the Act.

The Act also does not prevent an employer from adopting or retaining a paid leave policy that supplements or otherwise provides greater benefits than are required by the Act.

An employer may provide an employee with leave benefits in addition to those provided by the Act, including a paid leave program. However, this will not exempt the employer or employee from the provisions of the Act.

Employers should note that leave required by a state or local law is not taken into account when determining the amount of leave provided by an employer for federal tax credit purposes under the federal tax reform law.

Interaction of Leave Laws

Other types of leave may be available to District of Columbia employees - some required by federal law, and some provided by company policy, as well as several sources of income replacement. See Other Leaves: District of Columbia. While some of these laws can run at the same time, others cannot.

Remain alert to the various types of leave available and take care to track an employee's leave of absence, including:

  • The date the leave begins;
  • The type of leave; and
  • The expected return date.

Future Developments

The Universal Paid Leave Amendment Act of 2016, which provides employees with paid parental, family and medical leave benefits, took effect April 7, 2017. Employees may begin accessing paid leave benefits July 1, 2020.

Additional Resources

The District of Columbia, Office of Human Rights

DC FMLA Fact Sheet from the Office of Human Rights

The Accrued Sick and Safe Leave Act