The D.C. Family and Medical Leave Act
The District of Columbia’s Family and Medical Leave Act ("DCFMLA") requires employers with twenty or more employees in the District of Columbia to provide sixteen weeks of job-guaranteed “medical” leave to qualified employees with a serious health condition every 24 months. An employee is also entitled under the Act to up to sixteen weeks of “family” leave during a 24-month period (1) for the birth or adoption of a child or (2) to care for a family member with a serious health condition. An employee is entitled to be reinstated to the same or an equivalent position at the end of protected family and medical leave. An employee is also entitled under the statute to family leave to attend specified school and family functions and activities.
A. Family and Medical Leave
1. Covered Employers
Employers with twenty or more employees in the District of Columbia are covered by the DCFMLA. D.C. Code § 32-501. Although District of Columbia government employees are covered by the statute, federal employees are not. Id. § 32-501(2). The rights of school employees on family and medical leave may be restricted. See id. § 32-506 (describing limitations on leave to actual duration of medical treatment and right of school to transfer employee).
2. Eligible Employees
To qualify for DCFMLA family and medical leave, an employee must have (1) been employed by the employer for at least one year without a break in service and (2) worked for at least 1,000 hours (an average of 19 hours per week) during the 12-month period immediately preceding the requested medical leave. Id. § 32-501(1).
3. Leave Available
Employers must provide up to sixteen weeks of medical leave and sixteen weeks of family leave to qualified employees every 24 months. Id. § 32-503(a). If the employee takes more than sixteen weeks of protected leave or is unable to return to work after sixteen weeks of leave, the employer does not have an obligation under the DCFMLA to reinstate the employee. Harrison v. Children’s National Medical Center, 678 A.2d 572, 576 (D.C. 1996) (employee who took in excess of sixteen weeks of medical leave was not entitled to reinstatement).
4. Types of Leave Available
a. Medical Leave
An employee may take continuous or, where medically necessary, intermittent medical leave for her own serious medical condition. A “serious health condition” is defined in the Act as a “physical or mental illness, injury or impairment that involves (A) inpatient care in a hospital, hospice, or residential health care facility; or (B) continuing treatment or supervision at home by a health care provider or other competent individual.” Id. § 32-503(9). In determining what constitutes a serious health condition or continuing treatment under the DCFMLA, courts rely on the Family and Medical Leave Act ("FMLA") regulations and case law as persuasive authority. Chang v. Institute for Public-Private Partnerships, Inc., 846 A.2d 318, 327 (D.C. 2004).
b. Family Leave
Family leave may be taken for the birth, foster care placement, or adoption of a child or to care for the serious health condition of a family member. Leave for birth or adoption must be taken within twelve months of the birth or placement of the child with the employee. D.C. Code § 32-502 (2001). The DCFMLA provides a more expansive definition of “family member” than federal law. By statute, a "family member" is a person related by “blood, legal custody or marriage.” Id. § 32-501(4)(A). If an employee “assumes and discharges parental responsibility” for a child who lives with him or her, the child is considered a family member under the statute. Id. § 32-501(4)(B). In addition, a person is considered a family member if the employee lives or has lived with the person in the past year and “maintains a committed relationship” with the person. Id. § 32-501(4)(C). The regulations provide a definition of “committed relationship,” which focuses on economic interdependence. D.C. Mun. Regs. tit. 4, § 1699.1.
5. Impact of Paid Leave
DCFMLA leave is unpaid leave. An employee may, at his or her election, take available paid vacation or sick leave while on DCFMLA leave in order to receive pay during the leave. D.C. Code § 32-503(b) (2001). If an employee elects to take paid leave while on DCFMLA leave, the paid leave and the DCFMLA run concurrently and the employee is not allowed to “tack on” a full sixteen weeks of unpaid DCFMLA leave after the employee’s paid leave is exhausted. Id. § 36-1303(b)(2). As the court explained in Harrison, 678 A.2d at 577:
What the Act protects is appellant’s right to return to the same job (or an equivalent job), with undiminished seniority, within sixteen weeks after going on medical leave. It does not shield her accrued sick leave from being included in the calculation of that protected period; indeed, it expressly states that such accrued leave shall count against the sixteen weeks.
However, unlike under the FMLA, an employer subject to the DCFMLA generally may not require the employee to use his or her paid leave while on DCFMLA leave.
6. Employee Notice
An employee must provide timely notice to the employer of his or her need for DCFMLA leave. Under the regulations, the employee must notify the employer of his or her need for medical leave either 30 days prior to the commencement of the leave or “as soon as possible prior to the date on which the employee wishes the leave to begin” when the leave was not foreseeable. D.C. Mun. Regs. tit. 4, § 1608.2. If an emergency prevents the employee from notifying the employer until the first day of absence, the employee must notify the employer “not later than two (2) business days after the absence begins.” Id. § 1608.3.
7. Medical Certification
Employers may request that an employee seeking DCFMLA leave provide medical certification from a health care provider. A “health care provider” is defined in the statute as “any person licensed under federal, state, or District law to provide health care services.” D.C. Code § 32-501(5) (2001). The certification should include (1) the date on which the serious health condition began; (2) the probable duration of the condition; and (3) “appropriate medical facts within the knowledge of the health care provider” that would entitle the employee to take leave. If the employee is taking leave for her own serious medical condition, the employer may also request a statement that the employee is unable to perform the functions of his or her position. Id. § 32-504(b). An employer may, in specified circumstances, require that the employee obtain second and third medical opinions. Id. § 32-504(d)-(e). In addition, an employer may request recertification on a “reasonable basis.” Id. § 32-504(f).
However, the obligation to provide medical documentation is neither automatic nor unrestricted. For instance, an employee only has an obligation to provide medical documentation to support a request for DCFMLA leave if the employer requests it. Id. § 36-1304. Moreover, relying upon federal regulations construing the FMLA, a federal district court has recognized that an employee does not have an obligation to provide medical documentation under the DCFMLA substantiating medical conditions related to pregnancy, such as morning sickness. Pendarvis v. Xerox Corp., 3 F. Supp. 3d 53, 55 (D.D.C. 1998).
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B. Parental Leave
The DCFMLA also requires all employers to provide 24 hours of parental leave per year to allow employees to attend school-related events. D.C. Code § 32-1201 (2001). The employee must give ten days’ advance notice, unless such notice is impossible. The employer may deny the leave only if providing the requested leave would disrupt business operations and make the achievement of production or service delivery unusually difficult. Employers are required to provide leave to allow a parent, aunt, uncle, or grandparent to attend school-related events sponsored by a school or parent-teacher association, including concerts, plays, rehearsals, sporting games or practices, and meetings with teachers or counselors.
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C. Complaints and Causes of Action
An employee may file a complaint alleging violations of the DCFMLA with the D.C. Human Rights Commission ("HRC"). D.C. Code § 36-1309 (2001). The complaint must be filed with the HRC within one year of the DCFMLA violation. Id.; see also Wedderburn v. Howard University, 1998 U.S. App. LEXIS 33889, *2 (D.C. Cir. 1998) (plaintiff’s claim under the DCFMLA was barred by the Act’s one-year statute of limitations); Lightfoot v. District of Columbia, 2006 WL 54430, *7 (D.D.C. Jan. 10, 2006) (dismissing claim filed more than a year after plaintiff learned of termination).
An employee also has the option of filing a civil suit within one year of the DCFMLA violation. D.C. Code §§ 32-509, 32-510 (2001). In Simmons v. District of Columbia, 977 F. Supp. 62, 64 (D.D.C. 1997), the court held that employees are not required to exhaust their administrative remedies prior to initiating a civil suit under the DCFMLA. But see Harrison, 678 A.2d at 573-74 (declining to rule on the issue of whether a complainant who files an administrative complaint is required to obtain a final ruling from the HRC prior to initiating a civil action). In order to establish a prima facie claim under the statute, the plaintiff bears the burden of proving that (1) she had a serious health condition; (2) the condition rendered the plaintiff unable to perform the functions of her job; and (3) she provided reasonable notice to the employer of her need to take leave and the reasons for doing so. Pendarvis, 3 F. Supp. 3d at 55.
The DCFMLA also recognizes a cause of action for termination in retaliation for taking protected leave. Chang, 846 A.2d at 328-29. To establish a prima facie case of retaliatory termination under the DCFMLA, the plaintiff must show that: (1) she was engaged in a protected activity; (2) her employer took an adverse employment action; and (3) there was a causal connection between the two. Id. at 329; see also Price v. Washington Hospital Center, 321 F. Supp. 2d 38, 47 (D.D.C. 2004) (no violation of the DCFMLA where plaintiff’s position was eliminated as part of a reduction-in-force while plaintiff was on medical leave). Temporal proximity alone between the leave taken and an adverse employment action may be sufficient, at least to withstand a motion to dismiss, to establish the requisite causal connection. See Winder v. Erste, 2005 WL 736639, *14 (D.D.C. Mar. 31, 2005) (events were close enough in time to infer a causal nexus for purposes of stating cause of action under DCFMLA where plaintiff was on sick leave when his employment was terminated).
Connie N. Bertram, Esq.
Winston & Strawn LLP
1700 K Street, N.W.
Washington, D.C. 20006
Reprinted by permission of Ms. Bertram
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