Update on Paid Family Leave for D.C. Employers – Draft Benefit Regulations & Resources Now Available

Background

The D.C. Department of Employment Services (DOES) began collecting employer contributions toward the D.C. Universal Paid Leave (UPL) Implementation Fund—in the form of a mandatory 0.62 percent quarterly payroll tax on the value of covered employees’ total wages—on July 1, 2019. DOES began collecting a second installment of the tax, covering wages paid during the July 1-September 30 quarter, on October 1, 2019.  

New Benefit Regulations – Highlights for Nonprofit Employers

Employer contributions will be used to fund District-provided paid family and medical leave benefits beginning July 1, 2020. In early August, DOES released its first draft regulations confirming and clarifying how UPL benefits will be administered. Key takeaways from the regulations for nonprofit employers include:

Scope of Benefits: As previously established, UPL will provide workers with up to eight weeks of paid leave to bond with a new child (including fostered and adopted children); six weeks to care for family members with a serious health condition; and two weeks to care for their own serious health conditions.

An employee can take a mix of different leave types throughout the year and can take leave in either continuous or planned, intermittent periods, but can only claim a combined total of eight weeks of leave benefits in any 52-week period.

The first leave request within a 52-week period is also subject to a seven-day waiting period against which no benefits can be claimed, but which also does not count against an employee’s paid leave allowance. For example, an employee claiming benefits for the first time following the birth of a child will not receive paid leave benefits covering the first seven days after the child’s birth, even though the employee is allowed to be on leave from work during that period. DOES will then allow the employee to claim a subsequent eight weeks of paid parental leave once the waiting period expires, effectively allowing the employee to be out of work for a total of nine weeks. Once an employee triggers a seven-day waiting period, subsequent leave events within the next 52-week period will not trigger another waiting period.

The actual benefit amount is calculated based on a worker’s average weekly wage in the last five calendar quarters and does not provide 100 percent wage replacement. Instead, the maximum wage replacement level is 90 percent (for those earning up to 1.5 times the D.C. minimum wage) with a cap at $1,000 per week.

District-Managed Process: The regulations confirm that DOES will control the process of applying for, adjudicating, and paying leave benefits. Specifically, DOES will create an online portal or other platform which employees can use to apply for leave benefits. Employees will submit benefit applications to DOES after a qualifying leave event occurs and will be required to provide supporting documentation depending on the leave type requested (e.g. birth records, medical certifications, etc.). DOES claims examiners will adjudicate each claim and, if approved, DOES will pay benefits directly to employees. Employees with denied claims can appeal to DOES or the D.C. Office of Administrative Hearings.

DOES will notify employers when an employee has filed a benefit claim and will ask employers to confirm basic details about the applicant’s leave period. This communication will necessarily occur after the employee has already started taking leave, so will not provide a form of prior notice for employers.

Employers cannot create rules or restrictions which impede an employee’s ability to use UPL benefits or use the DOES-provided application process.

Employer Notice: While employers are not involved in managing or approving leave requests, they are entitled to notice from employees before they take leave. Employees are required to give employers at least 10 days of written notice in advance of foreseeable leave events. Employees must give written or oral notice before the start of their next work shift in the event of an unforeseeable leave event and, in the case of bona fide emergencies, provide written or oral notice as soon as possible (either personally or through a third party), potentially up to 48 hours after the event occurs. Notices must include the expected duration and start/end dates of the leave period. These notice requirements should give employers some ability to make scheduling and/or workload adjustments in light of upcoming leave events.

Interaction with Existing Benefits – Statutory & Long-Term: If UPL-covered events also qualify as protected leave under FMLA or D.C. FMLA, then the UPL leave will run concurrently with those statutory leave periods. Individuals receiving either unemployment insurance or long-term disability benefits will not be eligible to receive UPL benefits simultaneously.

The draft regulations are currently silent about the interaction between UPL benefits and benefits under the D.C. Accrued Sick and Safe Leave Act (ASSLA), but DOES has stated that ASSLA benefits will continue to be available when UPL is fully implemented. ASSLA provides employees with between three to seven days of employer-paid sick leave per year, depending on employer size, which accrues gradually throughout the year. Unlike UPL medical benefits, which can only be claimed for “serious health conditions” and which require medical certification, ASSLA leave events lasting less than three days can be taken without providing certification. ASSLA benefits can also be used for safe leave relating to incidents of domestic violence or sexual abuse.    

Interaction with Existing Benefits – Voluntary Employer-Provided: The regulations clarify that employers are free to offer or amend their own policies regarding other forms of private, employer-provided paid leave benefits. Employers can continue to provide their own forms of paid sick time, vacation time, short-term disability benefits, and paid parental leave, so long as employer policies do not interfere with an employee’s ability to use and apply for UPL benefits.

Parallel employer-provided benefits in light of UPL implementation may include, for example:

• Providing non-medical, non-family (e.g. vacation) leave;


• Providing additional family or medical family leave days;


• “Grossing up” the UPL wage replacement amount to 100 percent (or another amount) when employees take UPL-qualified leave; or


• Offering additional sick and safe leave for non-serious health events with no medical certification requirement (e.g. common colds) at least in satisfaction of—or in excess of—what is required under ASSLA.

More information about UPL can be found on DOES’s Paid Family Leave Website, which now includes a webinar series covering how the program will work.